WCAX takes First Amendment battle to high court

Published: May. 14, 2019 at 4:24 PM EDT
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Should a court's decision be shielded from the public? That was the heart of a case argued before the Vermont Supreme Court involving WCAX and the First Amendment.

The case involves footage WCAX photographer Shelly Holt Allen shot last year during an officer involved shooting at Montpelier High School. A judge quashed a subpoena after prosecutors sought the video, but that decision has been kept under wraps.

WCAX's parent company, Gray TV, was in court Tuesday arguing that the judge's decision denying prosecutors use of the video should be public and that it stands as a precedent the next time prosecutors seek to seize reporting materials from the media.

Gray TV's attorney, Chad Bowman, says the case is about a simple question -- can court decisions that interpret and apply Vermont's statutes be kept from the public?

"In its entirety, and in perpetuity, absent any specific showing of a need for secrecy, simply because the underlying proceeding was an inquest," Bowman argued.

State and local police fatally shot suspected bank robber Nathan Giffin on a field at Montpelier High School in January 2018. Channel 3's camera captured it. Washington County State's Attorney Rory Thibault then subpoenaed the video, but Gray TV fought it, and the subpoena was successfully quashed because of a media shield law enacted in 2017.

Thibault sought the video through an inquest -- a secret investigative tool. "Vermont has a long tradition of using the inquest as a key investigatory tool," Thibault told the justices.

The superior court judge sealed its decision to quash the subpoena because it was done through an inquest. Thibault says the decision should remain sealed to protect future inquests. "One of the state's concerns here is that by piercing the veil of allowing for these types of rulings to be made public, this would compromise the entire system as we know it of inquest and maintaining confidentiality during the pendency of an investigation," he said.

Bowman says that while the proceedings and information uncovered during an inquest can remain confidential, the court's decision should be public. "The most important aspect of a case is the court's decision. There are cases in our briefs from around the country that, if nothing else is public, the court's decision should be public," he said.

If the Vermont Supreme Court agrees to unseal the subpoena ruling, it would be the first legal precedent in support of the state's new media shield law.

The New England First Amendment Coalition issued a statement in support of that, saying that releasing the decision would help Vermonters better understand how the court interpreted the shield law and also provide transparency in the state's judicial system.