The NewsGuild is seeking to compel a journalist to give up his communications with his sources, as well as his correspondence with a former New York Times columnist.
The move is part of an ongoing legal battle between the guild, the largest journalism union in the country, and Mike Elk, a former member and independent labor reporter. In June 2021, Elk sued the NewsGuild and several of its top leaders, alleging that they had retaliated against him after he notified them of sexual misconduct allegations against former Newspaper Guild of Pittsburgh president Michael Fuoco.
The defamation lawsuit, filed in Allegheny County, Pennsylvania, has reached the discovery phase. As part of its request for documents, the NewsGuild asked for Elk’s communications with the sources who notified him of the misconduct allegations. The union also asked for Elk’s communications with former New York Times media columnist Ben Smith, who broke the story on the allegations and reported that the NewsGuild had ignored tips about Fuoco’s behavior for months. Elk served as a source for Smith.
Elk has refused to turn over those documents, citing the First Amendment and Pennsylvania Shield Law, which protects journalists from being forced to disclose the identities of their sources in court. The NewsGuild filed a motion to compel Elk to give up this information last month, and Elk filed an objection Monday. Now, a judge will decide whether he must turn over those documents.
“They want to subpoena my sources, the whistleblowers who told me about the sexual misconduct problems within the NewsGuild,” Elk said. “This is a dangerous precedent. If they win this case, every right-wing billionaire in the country is going to cite the NewsGuild any time they want to sue a journalist.”
In his lawsuit complaint, Elk alleges that NewsGuild leaders defamed, harassed and physically assaulted him after he asked the union to investigate Fuoco. Elk is seeking a jury trial and compensatory and punitive damages.
NewsGuild leaders have denied the allegations in the lawsuit, which union president Jon Schleuss called “meritless.”
Asked about the NewsGuild’s discovery requests, Schleuss said that Elk has asked for his communications with Smith and sexual assault survivors. (Elk denies this and says he has neither requested the names of survivors nor the NewsGuild’s correspondence with The New York Times.) Schleuss also said that Elk’s requests for any documents related to the allegations in his lawsuit complaint are “overly broad.”
“He initiated the lawsuit seeking that information in his discovery requests,” Schleuss said. “Ours is basically a defense to try and understand the nature of his allegations. We need more information to be able to understand his allegations to prepare our own defense.”
The NewsGuild has argued that because Elk is the one who brought forth the lawsuit, he cannot use the First Amendment “simultaneously as sword and shield” and “waives his privilege where his sources have information that goes to the heart of the defense.”
Smith, co-founder of Semafor, first reported the NewsGuild’s discovery requests on Sunday. Roughly two hours before Semafor published the story, Schleuss emailed NewsGuild members a copy of Smith’s request for comment, along with an update on Elk’s lawsuit. Schleuss told Poynter that he decided to release a statement ahead of Smith’s story because he wanted to provide transparency to NewsGuild members.
“I have a First Amendment right to publish what I want to publish,” Schleuss said. “We try to be as transparent as possible, especially with litigation against our own members.”
In its initial request for documents dated Sept. 19, 2022, the NewsGuild also asked for communications between Elk and Poynter. Elk said he refused, and a subsequent letter dated Sept. 1 from the NewsGuild regarding its requests does not make any mention of them.
Elk said he now awaits the judge’s decision on whether he will have to produce the documents the NewsGuild requested. He added that he has been in touch with New York Times vice president and deputy general counsel David McCraw, who told him that the paper might issue a legal brief on his behalf if the judge requests one. Times spokesperson Danielle Rhoades Ha said the paper will “assess as the case progresses.”
The Freedom of the Press Foundation, a nonprofit devoted to protecting the First and Fourth Amendment rights for journalists, publicly questioned the NewsGuild’s actions in a post on X, formerly known as Twitter, Monday.
“The NewsGuild is seeking reporters’ communications with sources in court,” the foundation posted. “How exactly does that serve the interests of their members, other journalists, or the public?”
Elk said that he views this legal fight as an attempt to drag out his lawsuit.
“They are wasting the money of the NewsGuild at a time when reporters are under attack, and now they are attacking reporters and getting them to give up the names of their sources.”
