Reporter wins subpoena battle in street performer's suit

A Boston Globe reporter is privileged from having to testify about her coverage of the city’s crackdown on street performers, a federal court ruled earlier this week.

As part of his civil rights lawsuit against the city of Boston, street performer Bruce Peck subpoenaed Globe reporter Donovan Slack in January for deposition testimony intended to confirm observations “concerning the physical layout of the restricted street performance area" and statements made by officials in the Aug. 1, 2008, story by Slack, according to the opinion issued Tuesday by the U.S. District Court in Washington, D.C. Slack now lives in Washington, and was subpoenaed there.

The article reported on then-recently enacted restrictions on street performances near Faneuil Hall, a historic landmark and tourist attraction in downtown Boston. Peck claims the restrictions violate his First Amendment right to free speech by severely limiting the amount of space in which he may perform. Peck wanted Slack to confirm the story’s statement that the restricted area in question was 15-by-15 feet, as opposed to 5,000 square feet, as the city contends.

Slack moved to quash the subpoena, invoking a First Amendment-based reporter’s privilege to refuse to disclose information obtained during the newsgathering and dissemination process.

Applying a two-prong balancing test adopted by federal appellate courts in D.C., the district court concluded that the reporter’s privilege should prevail and block the compelled disclosure of information held by Slack.

Under the first prong, the court evaluated Peck’s need for the information, finding that it weighed in favor of Slack’s compelled testimony.

“The plaintiff seeks Ms. Slack’s testimony solely to confirm the size of the area designated for street performances,” the court said. “This factual issue is certainly critical to the . . . analysis of the First Amendment burdens at issue in plaintiff’s case, and goes to the heart of the plaintiff’s claim against the City of Boston.”

However, under the second step of the reporter’s privilege analysis, the court ruled that Peck was unable to demonstrate that no alternate source of the information exists. Because the designated area changed over time, Peck said determining its size during the summer of 2008 by measurements taken at later times or today is impossible. Moreover, Peck said he tried to obtain the information by searching for and contacting potential witnesses, and by serving discovery requests on city officials.

However, the court noted that these mere “general descriptions of his efforts . . . are insufficient to sustain his burden of showing that alternative sources are unavailable.”

For example, Peck could have tried to obtain the information by approaching local business owners, street vendors, residents, local police responsible for enacting and enforcing the restrictions, or individuals who frequent the area, the court noted.

“The plaintiff may be having ‘difficulty’ in locating sources to confirm that the area designated for street performances near Faneuil Hall was of the size that he contends,” the court said. “He has not demonstrated, however, that he exhausted alternate sources for the information he seeks from Ms. Slack.”