PHOENIX — Calling the documents confidential, and claiming the First Amendment rights of a journalist, former Gov. Jan Brewer is refusing to give up notes she used in preparing her book “Scorpions for Breakfast” to those suing to overturn SB 1070.
And she says she may yet write another book.
In objections filed in U.S. District Court here, attorney Robert Henry pointed out Brewer wrote the book about immigration issues and her decision to sign the controversial 2010 law not in her official capacity but as a private citizen.
He said the civil-rights groups trying to have the immigration enforcement law declared invalid have never alleged that she acted improperly in signing the legislation.
What that means, Henry said, is that “some of her thoughts relating to what she may or may not have been considering in connection with her ultimate review of this bill have absolutely no relevance.”
Henry also is telling U.S. District Judge Susan Bolton, who will decide what Brewer has to cough up, that there is a “qualified privilege for journalists” that protects an author’s materials and notes.
“The journalist’s privilege extends to investigative book authors and to be confidential and non-confidential sources and materials,” the attorney said. And he said forcing Brewer to disclose conversations and communications she had with people in preparing the book would both chill the willingness of people to talk to her and interfere with her “political speech rights.”
Her arguments face objections from the attorneys for civil rights groups hoping to use the information, and other materials, overturn the last major provision of the law: a requirement for police who have stopped people to check their immigration status if there is reason to believe they are in this country illegally. The U.S. Supreme Court refused to void what has become known as the “papers, please” provision, saying there is nothing inherently unconstitutional with the law.
Now challengers are attempting to show that the law was enacted out of “racial animus,” saying that alone would be grounds to declare the law invalid. They contend what Brewer was told, and was thinking, at the time she signed the bill is relevant.
Other key provisions of SB 1070 have either been struck down or the state has agreed not to enforce them. That includes a ban on those not here legally from seeking work, letting police make warrantless arrests of those without documents, and making it a crime to harbor or transport those not here legally.
Justin Cox, an attorney with the American Civil Liberties Union, said his organization takes “very seriously” anyone’s claims of First Amendment protections. But he said making that claim, by itself, is legally meaningless.
“You can’t claim a privilege in a vacuum,” he said. “You have to prove it.”
And proving it, he said, requires production of what courts call a “privilege log.”
In essence, this is a list of documents someone does not want to produce along with a specific reason why each is not subject to disclosure. In this case, Cox said, Brewer has yet to produce such a log.
Aside from her other claims for refusing to provide much of what is being sought, Brewer is claiming she has a property right in the notes.
“The information that did not ultimately make it into ‘Scorpions for Breakfast’ could be used to write additional books, for interviews, or for other commercial uses by Gov. Brewer,” Henry told the court.
He said authors have a “legitimate commercial interest” in shaping the form and timing of disclosure of their information “so that the commercial success and public image of their books are not frittered away by prepublication news stories.”
