By Michael Miner

We Fought the Law (and the Law Lost)

The Tribune ran a powerful editorial last Sunday telling Sheriff Michael Sheahan to call off the “cattle barn” strip searches of female inmates at the Cook County Jail. The editorial was largely an uncredited regurgitation of Tori Marlan’s cover story in the Reader a couple of weeks earlier, but she’s not complaining so we won’t either. “It was deservedly scathing, but it seemed a little familiar,” says Marlan. “I guess I feel better that it was an editorial than if they’d just rereported my piece.”

Marlan’s been writing about strip searches at the County Jail since 1998, and an indignant Tribune is welcome company. Her most recent story described a suit in federal court that seeks to compel Sheahan to strip-search women inmates individually and privately rather than en masse in bull pens or the jail’s gymnasium. Inmate Tonya Townsend, on whom both Marlan and the Tribune focused, is one of three named plaintiffs in the suit, Wilkes v. Sheahan.

“Naked, with menstrual blood dribbling down her legs, she performed a series of humiliating tasks,” Marlan reported. “Following commands given by correctional officers, the women opened their mouths, lifted their breasts, and ran their hands through their hair. Then, Townsend says, they had to spread their buttocks and bend and squat while coughing….Townsend says two others bled onto the floor as well, and that two women in the group were vomiting. She also says the officers in charge taunted the inmates, calling them ‘whores and bitches.'”

“Sound like the Third World?” asked the Tribune. “Try Cook County Jail.”

The Tribune complained that private attorneys who are paid $185 an hour, as well as a “brigade of assistant state’s attorneys,” are wasting taxpayers’ money to defend the indefensible. In addition to fighting Wilkes v. Sheahan, this legal team is still defending the sheriff against a class-action suit filed in 1996 to stop the practice of compelling women being released from jail to be strip-searched before they can go. Sheahan lost that battle in the first go-around, but he’s appealing.

And for the last two years he’s been spending your money to fight the Reader as well. “Strip Search,” Marlan’s March 1998 cover story discussing that lawsuit and describing the gratuitous humiliations that prompted it, apparently infuriated Sheahan’s office. When Marlan asked to go back into the jail to do a story about a program for female inmates run by an organization called CLAIM–for Chicago Legal Aid to Incarcerated Mothers–William Cunningham, a press officer for the sheriff’s department, said no. The reason, he acknowledged, was the strip-search article. Marlan, he said, hadn’t included information he’d mentioned about positive programs for women at the jail.

But there’s a limit to how much public officials can control what’s written about them, so two years ago the Reader, represented by the MacArthur Justice Center at the University of Chicago, filed suit against Sheahan. The Reader asked for access, not monetary damages, arguing that by retaliating against Marlan the sheriff’s office had violated her First Amendment rights and sent a disturbing message to other reporters: piss off the sheriff and you won’t get in.

Eventually, hoping to settle the suit out of court, the Cook County Department of Corrections, which Sheahan oversees, offered to videotape a CLAIM class for Marlan and allow her to interview inmates and jail officials by telephone. The Reader rejected those terms.

Last week Sheahan lost this suit too.

“There is no factual dispute as to plaintiffs’ injury,” wrote senior federal District Court judge James Moran. “Defendants simply claim those injuries are not legally sufficient.” In other words, because there were other ways for Marlan to report her story, she didn’t suffer unduly from not being allowed back into the jail. But Moran didn’t buy it. “The alternative sources defendants offered are not adequate substitutes for first-hand observations. Reporters frequently resort to alternate sources when first-hand observations are not possible, but that in no way negates that actually being there is optimal.”

The essence of journalism is witness; it isn’t artful fabrication. With “access” being so precious an advantage, the reporter who feared losing it “might well tone down a critical article,” the judge observed. “That is exactly the type of chilling effect the First Amendment guards against.”

Sheahan’s office argued that access to the jail was a privilege, and the Department of Corrections had a right to revoke the privilege. True up to a point, Moran responded. But he noted that the DOC “has a written policy encouraging media access to the jail.” Therefore, although it “may not have had a legal obligation to admit Marlan…it may not refuse to do so because she exercised her First Amendment rights.”

The judge based his ruling on an admirably vigorous reading of the First Amendment. Sheahan’s office had contended that it refused to let Marlan back into the jail not because of what she wrote but because she’d asked for access for one story and ended up writing another. If that were the case, Moran responded, what of it?

“Whether defendants took issue with the fact that she criticized the sheriff, or that she wrote about something other than what they expected, defendants clearly reacted to the content of Marlan’s article,” Moran said in his ruling. “That violates the First Amendment.”

Reporters, the judge acknowledged, “may occasionally use deception in gathering information as necessary to their First Amendment function of revealing what government officials may not want the public to know. Clearly, this does not extend to the point where a reporter jeopardizes jail security. But admitting Marlan to the CLAIM class will not disrupt anything at the jail. Defendants do not claim that Marlan had violated prison rules, and concede they have no basis for believing she would do differently in the future. Nor do they claim that allowing her access will jeopardize security in any other way. They have, in effect, admitted their decision to refuse her access was content-based….If Cunningham does not trust Marlan, he does not have to personally answer her questions. But defendants may not deny her a privilege accorded other reporters because she did not include positive programs in her article. They must admit her to the jail on the same terms as other reporters.”

Judge Moran assumed deception on Marlan’s part only to see if Sheahan’s argument, taken in the most favorable light, held water. He decided it didn’t. Marlan, for the record, says she deceived no one. Originally, she says, she visited the jail in order to write a broader piece on female inmates, but while she was there she learned about the strip-search suit and decided to focus on it. At this point she contacted Cunningham.

“I have in my calendar a note about our first conversation,” Marlan says. “I called him to request an interview with the sheriff about the strip-search case. And he said I couldn’t talk to the sheriff because the case was pending. That was the first time we talked. I don’t know why he says he didn’t know what my intentions were.”