Ken Paulson — A tale of two cities: When officials overreach


Memphis and Knoxville are about 390 miles apart, but they’re in strikingly similar territory as city officials in both try to poach the names of local citizens from newspapers.

In Memphis, attorneys for the Shelby County Commission are trying to force the Memphis Commercial Appeal to reveal the identities of anyone who posted comments on the newspaper’s website over a 21-month span concerning the merger of city and county schools and plans by suburban communities to start school districts.

The county commission appears to be trying to gather evidence that some who have supported referendums to start school districts in six communities were part of a concerted effort to discriminate against African-Americans.

Meanwhile, in Knoxville, Knox County Mayor Tim Burchett is trying to subpoena visitor logs and surveillance video at the newspaper, tracking everyone who visited between May 15 and June 24. According to Knoxville News Sentinel Editor Jack McElroy, the request is tied to the mayor’s divorce case and is designed to ferret out the source of records from the Elect Burchett checking account, which included checks written to the mayor’s wife that were not listed in the campaign’s financial disclosure.

What do these two subpoena efforts have in common? First of all, they appear to be fishing expeditions, seeking the names of hundreds of people who never imagined a third party would try to find them. Second, they’re overbroad on their face, asking for the identities of many in an effort to ascertain the names of a handful.

But it’s the third similarity that’s most troubling. In both cases, these are public officials trying to peek into the daily operations of newspapers — which are committed to monitoring the government and keeping an eye on those in power.

The First Amendment gave newspapers freedom of the press in 1791 to provide a check on political power. News organizations need to be able to go about that business, engaging the communities they serve, secure in the knowledge that communications are safe from prying eyes.

In Memphis, those who comment on the paper’s website are not news sources, but collectively their comments help broaden both the scope and perspective of the Commercial Appeal’s reporting. If government is allowed to pierce anonymity to explore motives and method, members of the public will be inhibited from sharing their views.

In Knoxville, the notion that a divorce-case litigant and public official can obtain the name of everyone who paid a visit to the local newspaper is truly disturbing. It goes to the heart of a news organization’s newsgathering capabilities.

Collectively, the efforts in both Memphis and Knoxville are classic examples of overreaching and a misunderstanding of core First Amendment principles, and are likely to fail. The Commercial Appeal and News Sentinel are not there to ease the path of plaintiffs. Their primary job is to serve the public — and that includes ensuring the privacy of those who visit, in person and online.

Ken Paulson is president and chief executive officer/First Amendment Center. Previously, Paulson served as editor and senior vice president/news of USA Today and USATODAY.com. He is now a columnist on USA Today’s board of contributors, writing about First Amendment issues.