A civil suit made by Rearguard editor Dimitris Desyllas against PSU President Daniel Bernstine, special assistant to the president Rod Diman and director of Public Safety John Fowler was dismissed Feb. 27 by a federal circuit court with prejudice, meaning that the case could not be filed again in that same level of court.
Desyllas is considering appealing in the 9th Circuit Court of Appeals, which will use a panel of three judges. Desyllas hopes this court will “do a more thorough job and look into the actual complaint of denial of entrance into a newsroom.”
Desyllas sued over events that took place Feb. 23, 2001, when a box of confidential student records were found by an unknown person and given to the Rearguard, Portland State’s student-funded, twice-monthly alternative activist newspaper. The Rearguard could legally possess the documents since they did not participate in its acquisition, the origins of which are still not known.
When the PSU administration were informed that the Rearguard was in possession of these student disciplinary records, which were found in a water-damaged cardboard box, Desyllas claimed that Public Safety officers used a lockout knob to prevent his access to the office, and “made threats of arrest.”
Desyllas also claimed that Fowler said they would stay with him all night if necessary, and that officers followed him everywhere he went.
Desyllas was most concerned about the use of these tactics, and also felt that the judge “did not address these issues,” and was only concerned with the movement and ownership of the files, which he eventually returned to the university. “I am not sure why these files were found the way they were, and I was in the middle of an investigation as a journalist,” Desyllas explained. “And the judge and university said no, that I could get arrested for stolen property.”
Newsrooms are protected under “shield laws” which make them immune from interference and search except when probable cause exists to believe a crime was or will be committed. The Supreme Court also ruled during the Nixon years that under the First Amendment, stolen or confidential items obtained by the press are protected from search and seizure.
“I expected that they would at least find that they did not have the right to deny my access, and that I was misrepresented,” Desyllas said.
“I can’t speak for the judge, but I speculate that a lot of information was not paid attention to, and I’d like to know with which laws they based their decisions on.”
Desyllas also felt that there were other factors involved in the case. “If we were The Oregonian or The New York Times, it would have definitely been different, as we are treated and viewed differently. It has to do with economics. These papers have access to more than one lawyer, and they have mass printings.” Also, he questioned the lack of consistency in the testimony provided by PSU regarding the event and the absence of any official recorded documentation.
Responding to the decision, Fowler said that “it has already been decided, and so there is not much else to comment, as the court has already spoken.” In regards to the allegations made against him, Fowler denied the use of the tactics Desyllas claimed, and said they had merely “explored a variety of possibilities of what might happen.”
Fowler did not have an opinion concerning the appeal of the case, reiterating he stood by the court’s ruling, and if “they wished to appeal, let them appeal.” Both Bernstine and Diman declined to comment on this matter.