Sun-Times music critic Jim DeRogatis didn’t simply take the Fifth Amendment 15 times when he was questioned by the defense Wednesday in the R. Kelly trial. He also took the First. And by the stress he put on the words the First each time he said them, he made it clear which amendment was closer to his heart. After all, the Fifth Amendment is favored by mobsters trying to stay out of the slammer. The First Amendment guarantees freedom of speech and the press.
Judge Vincent Gaughan was interested only in the Fifth. And from the headlines, so were the dailies. The Sun-Times said, “Sun-Times music critic takes the 5th.” The Tribune said, “Sun-Times music critic cites 5th amendment to avoid testimony.”
The Sun-Times at least went into the details of what DeRogatis said in court (and wrote a new head for the story online that says, “DeRogatis takes the 1st in R. Kelly trial.”). The Tribune didn’t do that to DeRogatis’s satisfaction, so he e-mailed them Thursday to protest. He wrote:
“While the Tribune blog correctly reports my reluctant appearance at the R. Kelly trial yesterday, today’s print edition does not.
“According to the subhed, ‘Sun-Times music critic cites 5th Amendment to avoid testimony,’ while reporters Stacy St. Clair and Kayce T. Ataiyero write, ‘DeRogatis invoked his 5th Amendment right against self-incrimination.’
“Taking the stand only on the threat of imprisonment, 15 times I invoked all of my protections, clearly emphasizing the ones that most matter to me and all journalists in this state: ‘I respectfully decline to answer the question on the advice of counsel, on the grounds that to do so would contravene the reporter’s privilege, the special witness doctrine, my rights under the Illinois Constitution, and the First and Fifth Amendments of the United States Constitution.’
“Judge Gaughan may have chosen to ignore every other protection but the Fifth, but I invoked them all and would never have separated them. [Attorney Damon] Dunn, who recently represented the Tribune before this judge on a First Amendment matter, eloquently and passionately argued that I was only taking the Fifth because this judge made it necessary by ignoring the First. And that assault on our most sacred of journalistic protections is on appeal. A legal attack on any journalist’s rights is an attack on all of us. I would have expected better of the Tribune in reporting the Sun-Times’ attempt to stand strong against this unjust and deeply troubling assault.”
The defense wanted to hear from DeRogatis because back in 2002 he received the videotape that’s at the heart of the trial — the one alleged to show Kelly having sex with a girl in her early teens. DeRogatis turned the tape over to police the same day he got it. But the laws against child pornography — which the tape arguably is — are so draconian that Damon Dunn, representing the Sun-Times, was able to tell the court that DeRogatis might leave himself open to federal charges if he said anything at all about what he did with the tape while he had it.
Here’s a fuller appreciation of DeRogatis’s performance in court from Josh Levin at Slate.