Court grants motion to compel former editor to reveal confidential source

On Nov. 5, 2019, as part a lawsuit against the organizers of Unite the Right rally held in Charlottesville, Virginia, in Aug. 2017, Milo Yiannopoulos, a former editor at Breitbart News, was subpoenaed for all documents and communication related to the rally and one of its organizers, Richard Spencer.

Yiannopoulos, who, in Feb. 2017, had resigned from his post at the conservite news site once described by its chairman as a “platform for the alt-right,” failed to comply with the subpoena, and on Dec. 18, the parties involved in the suit agreed to restrict its scope, now requesting only audio and visual recordings concerning the rally, as well as any communications between Yiannopoulos and the defendants.

Yiannopoulos again failed to comply, ultimately stating that he had “nothing to produce relevant to the planning of [the rally].”

On April 6, 2020, however, Yiannopoulos published a video on his YouTube channel that showed Spencer chanting, “Sieg Heil,” and performing a Nazi salute among a crowd of people, and two months later, he claimed on the social media website Telegram that “[a] lot more Richard Spencer drops still to come from me.” This prompted the plaintiffs in the case to file a motion, on June 25, to compel his compliance with the subpoena.

In a court hearing on July 29, Yiannopoulos testified that the recordings relating to Spencer and the rally were not in his possession and that he had been “mistaken” in his belief that he possessed them. “I have consulted the source of these recordings, who reminded me that they were played to me, but I did not retain copies of them,” Yiannopoulos told the court in his objection to the subpoena. He then invoked the reporter’s privilege to protect the source’s identity.

The plaintiffs argued that Yiannopoulos could not invoke such privilege, stating that he’d been “cultivating his source in order to pursue a personal feud with Richard Spencer, and was thus not acting in the role of an independent journalist.”

On Oct. 14, the United States District Court for the Southern District of New York held that Yiannopoulos had been working for Breitbart at the time he contacted the source and was thus protected by the reporter’s privilege.

It noted: “Respondent’s style of disseminating information may be confrontational and biased, but it is not wholly without journalistic content, and protecting even Respondent’s muckraking style protects the ‘public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters.”

The court order stated that the plaintiffs had also failed to prove that the requested information was not available through alternative sources and rejected their claim that Yiannopoulos had not acted as an independent journalist. The court denied the motion to compel “with leave to renew upon a more thorough demonstration that Movants have exhausted potential alternative sources.”

When reached for comment, Yiannopoulos told the U.S. Press Freedom Tracker: “Journalists are, to a man, weaselly, hypocritical, vindictive, disreputable and disgusting people, but we survive for one reason: We don’t reveal our sources.”

On Nov. 5, 2020, the movants submitted a renewed motion to compel. The court admitted the renewed motion after Yiannapolous did not submit an opposition to the motion.

The court subsequently granted the renewed motion to compel, ordering Yiannopoulos to reveal the two sources and noting that the movants had now also successfully shown that the confidential information sought was not obtainable from other available sources and had therefore overcome qualified privilege.

A law clerk at the United States District Court for the Southern District of New York told the Tracker that the movants in the case had not approached the court since that order to compel, implying that the respondent, Yiannopoulos, had complied.

Yiannopoulos did not respond to the Tracker’s follow-up request for comment.