Journalist union seeks reporters’, sources’ emails in lawsuit

The premier U.S. journalists’ union wants my emails.

Specifically, in response to a critic’s defamation lawsuit, The NewsGuild filed a motion seeking a critic’s correspondence with The New York Times — in this case, with me. They’re also seeking the correspondence of a woman who sought to tip that reporter to sexual misconduct inside the union.

The legal motion represents a strange coda to a story that revealed how both the union and newsroom management have been slow to respond to complaints of a union leader’s sexual misconduct.

The motion came in the course of a 2021 lawsuit filed by Mike Elk, the founder of Payday Report and a vocal critic of the union’s leadership, against NewsGuild’s parent union, the Communications Workers of America, and two of the Guild’s top officers. Elk claims in Pennsylvania court filings that the defendants defamed him as he tried to report the Pittsburgh NewsGuild president, Mike Fuoco, for sexual misconduct.

The Pittsburgh official was ousted from the union in December 2020, after I investigated Elk’s allegations as a reporter for the Times.

Lawyers for the Guild and its top officers demanded last fall that Elk “identify every individual associated with the New York Times that you have communicated with regarding the lawsuit and the allegations … and state the contents of each communication.”

Elk argued in response that his communications with Times reporters are protected by the First Amendment. In a response on Sept. 1, lawyers for the journalists’ union wrote that Elk “may not use the First Amendment simultaneously as a sword and shield.”

They’ve also demanded that Elk hand over his full correspondence with his own sources on the allegations against Fuoco, including a former Pittsburgh Post-Gazette reporter (now a NewsGuild member at another publication) who alleged that Fuoco had acted inappropriately toward her, as well as two other women slightly connected to the story.

“We are always troubled when litigants use discovery to seek communications between sources and journalists, and it is especially concerning coming from a union that represents journalists,” Times spokeswoman Danielle Rhoades Ha said in an email to me, adding that the Times would “assess” intervening in the case as it progresses.

The Guild, for its part, makes no apologies for requisitioning the communications between a reporter and source: “We have a right and a duty to defend our members against frivolous lawsuits,” the union president, Jon Schleuss, told me in an email through a spokeswoman. (Schleuss and the former president of the Washington-Baltimore NewsGuild are named in the suit.)

“Mike Elk made his communications to Ben Smith a relevant component of his lawsuit against our members. As a result, we have asked Mike Elk in discovery for his communications. We will continue to fight to protect journalists and all of our members against any attempts to undermine our growing power and solidarity.”

Elk noted that a judge has rejected the union’s attempt to dismiss the lawsuit as frivolous. “This is a dangerous precedent for the NewsGuild to set. If we lose in court, every right-wing billionaire will cite Elk vs. NewsGuild to get people to give up sources,” he said. “At a time when NewsGuild is under attack throughout the industry, the union is spending money getting reporters to give up sources.”

I was struck in covering this story back in 2020 by the Guild’s priorities. The union reacted decisively to look into allegations of rape and sexual assault only after years of complaints about an open secret in Pittsburgh, and only after a victim went out of her way to speak to the union president — and as the union faced the prospect of an embarrassing New York Times story.

It then swung into action, Schleuss noted Sunday, with town halls and listening sessions that produced “significantly stronger anti-sexual harassment procedures and policies, including a new complaint process for sexual harassment survivors and a new training program for members and leaders.”

As the story unfolded however, the union — caught up like any institution in self-defense and internal politics — viewed Elk, not Fuoco, as the threat. Fuoco was a powerful local baron, and was also leading his members into a messy contract confrontation. The allegations were the last thing the Guild needed.

Fuoco told me, before my Times story was published, that Schleuss told him that “everything was fine because everyone knows that Elk is insane and has a vendetta against the Guild,” which reflects what other union officials told me as well about Elk. That alleged comment is part of Elk’s complaint.

The union is explaining its attack on the reporter-source relationship — Elk as my source, the women involved as Elk’s sources — as a feature of its struggle against “attempts to undermine our growing power and solidarity.” In doing that, it’s clearly putting its institutional imperative ahead of the interests of journalists.

Lawyers who defend journalists in defamation suits saw the union’s filing as alarming.

Kate Bolger, a partner at Davis Wright Tremaine who has defended media companies in high-profile lawsuits, noted that news organizations typically argue that the legal privilege applies to the reporter. “A party can try to seek materials from a source and sometimes does so to avoid subpoenaing the reporter (which is a high bar). But that doesn’t mean this kind of subpoena isn’t its own kind of assault on the reporting process.”

Stuart Karle, a former top Dow Jones lawyer, said that “going after his communications with a journalist inevitably discourages people talking to journalists.”

Elk’s communications with Fuoco’s alleged victim, which the union is also seeking, could be covered by privilege since he was acting as a reporter.

(Karle also advises Semafor, which is not a party to the case. I’m also not a party to the case, and I’ve never been a member of the Guild. When I was at the Times, I asked the unit chair about joining but never heard back.)

Schleuss didn’t respond to my inquiries about setting a bad precedent, or about what they expect to find in our correspondence that could bear on the defamation case.

• “The moment that I got concrete evidence that was credible and actionable, I acted,” Schleuss told me in 2020. “If there ever was an investigation over the past two months I have no knowledge of it because NO ONE ever contacted me,” Fuoco said in the same story.
• Pittsburgh’s City Paper looked into whether journalism programs at local universities were complicit in covering up the allegations.
• The NewsGuild, in another move that I’ve got to think some of their members will question, decided to front-run this story by emailing a copy of my inquiry and their response to members. The Guild didn’t respond to an inquiry about whether it would encourage other subjects of coverage to front-run its members when they work on stories.