Volume 67, Issue 7

Judge Rules on Shapiro-Persky Case
Both Sides Claim Victory
by Alexander Chester

Both Pinky Shapiro and Rick Ostrove, the lawyer representing Sy Syms School of Business Professor Diane Persky, have claimed victory this week after Federal Judge Lawrence M. McKenna delivered his ruling on the long-standing court case involving the two. 

As reported in the last issue of The Commentator, Persky’s lawyers attempted to coerce former Commentator Editor-in-Chief Pinky Shapiro into divulging the sources of an article he had written for the paper, which – according to Persky and her lawyers – had a significant relevance to her lawsuit against the university on the grounds of religious discrimination.

On December 9, McKenna published a ten-page ruling, stipulating that Shapiro would neither have to testify at this time nor disclose his sources. However, assuming that Persky is granted an appeal and could subsequently prove that Shapiro is the lone source of information for the requested information, the former Commentator editor might be have no choice but to ascend to the witness stand.

Shapiro’s victory, at least for now, hinges upon the commonly accepted notion of journalistic privilege, whereby information told to a journalist in confidence can be withheld from the public, provided that the source wished the information to remain private.  But, the law dictates that this privilege can, nonetheless, be revoked if three conditions are met: if the material is relevant to the case; if the information is deemed critical and necessary; and, finally, if it is not available from any other source.

In 1999, Persky wrote a letter to the University saying that, if her situation was not addressed, she would file a lawsuit against Yeshiva for religious discrimination.  This triggered the article in The Commentator, authored by Shapiro, which quoted “a number of (anonymous) university employees” as saying that Persky was “not the proper role model for our girls.”

Soon after this article was published, Persky filed her lawsuit, and her lawyer, Rick Ostrove from the firm of Leeds, Morelli & Brown, subsequently tried to get Shapiro to divulge his source.

Shapiro, after being denied assistance from Yeshiva and enlisting the help of Debevoise & Plimpton, argued that none of the three circumstances necessary to uproot journalistic privilege had been met. The fact that Persky had threatened Yeshiva with a lawsuit before the article came out signified that the article was not “critical and necessary” to her case.  Furthermore, Persky had failed to prove that the information was not available from any other source, since her lawyer had gotten depositions from only three other people, as well as three informal interviews.

McKenna said in his ruling that the first two conditions were met, but the third was not. He quoted other cases where even 100 depositions were not enough to prove that all other possible avenues of finding the information had been exhausted.

“The judge showed that the standard is very, very high,” said Shapiro.

Perhaps of the most significance to Yeshiva and colleges throughout the country, McKenna also ruled that the journalistic privilege law applies even for a student journalist. According to the judge, “The existence of a privilege does not preclude … from claiming such privilege” non-professional journalists, quoting from another case that extended the privilege even to “one who is a novice in the field.”

Shapiro was satisfied with the ruling, which protected the freedom of the press guaranteed under the First Amendment. “I thought we were going to win on all three points, so I was a little disappointed to win on only one of the three.” Nevertheless, he interpreted the fact that he did not have to divulge his source as an overall victory.

Ostrove, however, disagreed. “This ruling was good for us,” he said. “Shapiro will have to divulge his source. The judge’s ruling is very simple. All we have to do is get a deposition from every single administrator in Sy Syms. They won’t tell us anything, and doing so will be a waste of time, but it is something I have to do apparently. Once we do this, Shapiro will tell us his source.”

Ostrove also went on to say he felt bad that he was in a position where he had to compel Shapiro to do this, and that he respected Shapiro for his integrity and his decision to fight the process as much as possible. “But this firm will fight aggressively and hard for its clients.”

Shapiro declined to respond to Ostrove, not wanting to discuss future legal strategy. He only reiterated that Persky is entitled to reapply, but for now journalistic integrity is protected, and “I am happy to protect my sources.”

At this point, it is unclear how the case will proceed. Ostrove has the option to reapply after more exhaustively “searching all other positive sources,” and, ostensibly, he will do so. But previous decisions have never been overturned, even those with 100 depositions.

In the meantime, Shapiro, along with other student journalists, including the editors-in-chief of newspapers at New York University and Columbia University, have initiated consultation with the New York State Legislature to expand the New York State Shield Law to officially apply to student journalists as well.

The judge in the Persky case ruled only based on federal law, saying that since Shapiro is protected by federal law, it is irrelevant what the state Shield Law says on this matter. But the Shield Law, devised specifically to protect journalists, has more encompassing protections, and Shapiro, along with his cohort journalists, hope to convince the state of New York to apply these protections to student journalists as well. Doing so would set a tremendous precedent in the efforts and effectiveness of student newspapers across the country.¨

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