affidavit of peter zuckerman from summary judgment

Matthew C. Parks ELAM &BURKE 251 E. Front St., Ste. 300 P.O. Box 1539 Boise, ID 83701 Telephone: 208.343.5454 Idaho State Bar No. 7419

Gary L. Bostwick (pro hac vice) BOSTWICK LAW 12400 Wilshire Boulevard. Suite 400 Los Angeles, California 90025-1030 Telephone: 310.979.6059

Attorneys for PETER ZUCKERMAN

IN THE DISTRICT COURT OF THE SEVENTH .JUDICIAL DISTRICT OF THE STATE OF IDAHO, IN AND FOR THE COUNTY OF BONNEVILLE

FRANKL. VANDERSLOOT, individual,

Plaintiff,

PETER ZUCKERMAN, individual,

Defendant.

I, Peter Zuckerman, declare:

Case No. CV-2014-2510

(Consolidated with Case No. CV-2013-532)

DECLARATION OF PETER ZUCKERMAN IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT

Hearing Date: September 17, 2015 Time: 9 a.m. [Hon. Darla Williamson]

I. I am the defendant in this matter. I am a citizen and domiciliary of Oregon. I make this

Declaration upon personal knowledge. except as otherwise stated, and, if called upon to

testify, could and would testify competently hereto.

DECLARATION OF PETER ZUCKERMAN I/S/O MOTION FOR SUMMARY JUDGMENT Page 1

2. I appeared on the Raebel Maddow Show on MSNBC network on May 4, 2012 (hereinafter

"the Show"). The Complaint alleges that I said certain things on the show and attaches what

purports to be a transcript of Maddow's questions and my words. (Ex. I to the Complaint); I

testify here regarding portions of the statements I made during the appearance.

3. During my appearance on the Maddow show, Maddow asked me about a full-page Ad

entitled "The Community Page Ad", "Paid for by Melaleuca, the Wellness Company", that

the Post Register published on June 5, 2005 (hereinafter "the Ad"). Part of the Ad was a

statement signed by Frank VanderSloot.

4. The Complaint alleges I said: There was a tremendous impact on me both personally and

professionally. The statement was true, and when I spoke those words I had no reason to

doubt what I said. At the time of these events, being exposed as gay \Vas no small matter, and

I was keenly aware of many reasons to feel that eastern Idaho was a hostile environment in

which to be exposed as gay. These included:

• At the time you could be fired for being gay in Idaho and I had heard stories of that

happening to people.

• At the time, in Idaho you could be denied housing or a job, be kicked out of an

apartment or expelled from some colleges for being gay. I had heard stories of that

happening.

• At meetings for Parents and Friends of Lesbians and Gays (PFLAG), I had met

people who said they were suicidal because of their sexual orientation. I also met

people who said they had been harassed and faced employment housing, and family

issues because of their sexual orientation.

• One of my friends, Laura Garcia. a bisexual who attended meetings f<.x PF LAG,

DECLARATION OF PETER ZUCKERMAN l/S/O MOTION FOR SUMMARY JUDGMENT Page 2

killed herself.

• Other people struggling with their sexual orientation in the area had also committed

suicide, including several high-profile cases of students at Brigham Young University

and a high-profile case of a man who killed himself on the steps of an LDS temple.

• Although they had been overturned by the U.S. Supreme Court, laws were still on the

books in Idaho that made it a crime to be gay.

• Boyd K Packer, highly placed in the LOS Church, had called gays enemies of the

church.

5. After the Ad, there was an immediate and dramatic impact in my life, which I believed was

directly tied to the publication of the Ad, and like nothing I'd experienced before. By outing

me in my own newspaper (and linking my orientation to an attack on my integrity as a

reporter) - the Ad profoundly affected my daily life as well as my professional reputation.

6. The Post Register was read by people who subscribed to the paper, which was, by

circulation, the second-largest newspaper in Idaho and the largest newspaper in eastern

Idaho.

7. The Post Register was my workplace. People I knew and worked with every day read the

newspaper carefully. Doing so was part of their job.

8. The Post Register was the newspaper of record and closely read by people who \vorked for

other media outlets in Idaho. Reading the ne\vspaper closely was pai1 of their jobs, and they

considered the Post Register a credible source. I often ran into these colleagues at other

media outlets while covering other news stories and was well aware that I might someday

work for or with some of these colleagues or at some of the news organizations that

subscribed to the Post Register.

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9. The Post Register was closely read by people who worked for other media outlets across the

US. Reading the newspaper closely was part of their jobs, and they considered the Post

Register a credible source. I knew that some of my colleagues across the country kept close

track of what reporters like me were writing so that they could decide whom to hire when

there was an opening.

10. People on my beat read the newspaper closely because they were in iL because their bosses

were in it, because their workplaces were in it, because they knew me, because they wanted

to know what was happening within their organization and because staying on top of the

news coverage about their organization could be an important part of their jobs.

11. The Post Register vvas closely read by sources who were not on my beat but who provided

me information or were thinking about providing me information. Sources often decided

v.rhether or not they would talk to me based on what they read in the paper.

I 2. The Post Register was also read by people who casually knew me and followed what I write.

13. Compared to whoever a small radio show reached, I cared much more about my readers,

colleagues at work, colleagues in journalism, potential employers, beat members, sources.

possible sources, and casual readers, potential employers. It wasn't just how many people

were reached, it's who the people were and how close to my life they were. That difference

in audience caused the different impact on me.

14. The Complaint alleges I said: Pcrsonallv. it was reallv hard when mv bovfriend. at the time.

came home and said. "I don't have mv job anvmore. They know I'm gay. Thev know about

mv relationship with VOLL They don't want me there anvmore." The statement was true, and

when I spoke those words I had no reason to doubt what I said. It is a vivid memory for me

from a very stressful time. Many events demonstrate how stressful the period was for me:

DECLARATION OF PETER ZUCKERMAN 1/S/O MOTION FOR SUMMARY JUDGMENT Page 4

• My boyfriend at the time was Dylan Stone. The Ad came out on a Sunday, the day

that has the biggest circulation and the most readership. The Ad was as big as you

could buy them, the largest print media platform that you could buy in eastern Idaho.

• That morning Dylan and l went to the Unitarian Universalist Church. It was quite the

topic of discussion. Dylan became sick, probably because of a neurological condition

that we later learned about, that he is still being treated for today and that is triggered

by stress. He went to bed early.

• On Monday, a day after the Ad was published, I came home and he was on our futon

in the living room. It was around 6:30 p.m. He appeared to have been crying. I asked

what was wrong. He told me he had been fired because they had found out he is gay

as a result of the Ad. l did not grill him on the details, but he said the circumstances

were that he had been upset and told some co-workers why and gossip had gotten

around. We both had been fairly uncommunicative about our separate lives outside

the home for quite a while, especially when work was stressful, so I didn't know

much about his "job" at the time. l believed it involved working with people who had

mental illnesses.

• For years after that conversation, when Dylan and l spoke about what happened, he

continued to tell me he had been fired because of the ads and how it had been very

hard on him.

• I had read reports from other media outlets that had also reported that Dylan had been

fired because of the ads. I do not recall speaking to these outlets about that happening.

I assumed the reporters had independently verified this information. Based on

Dylan's personality, I also assumed that if these reports had been wrong, he would

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have corrected them.

15. The Complaint alleges I said: And it was reallv hard for him. The statement was true, and

when I spoke those words I had no reason to doubt what I said. These are things I remember

from that time that caused me to conclude that the publication was very hard on him:

• Dylan told me it was really hard for him. He had been upset about the ad at work, had

told others about it, and said that he was then fired (see Paragraph 14 above). He

described the people at his work as a bunch of homophobes.

• Shortly thereafter, he complained of being ill and took to bed for long stretches, as

long as a week at a time, as if he had a cold or the flu. See my paragraph 16 below for

facts that also bear on this statement.

• Dylan thereafter stopped or greatly reduced paying for shared expenses. See my

paragraph 17 below for facts that also bear on this statement.

• Dylan continued, for years, to maintain that he had been fired for being gay after the

ad was published.

• I had read reports from other media outlets that had also reported that Dylan had been

fired because of the ads. I do not recall speaking to these outlets about that happening.

I assumed the reporters had independently verified this information. Based on

Dylan's personality, I also assumed that if these reports had been \Vrong. he would

have corrected them.

16. The Complaint alleges I said: He actually got sick soon afterwards and was in bed for a

month. The statement was true, and \Vhen I spoke those words. I had no reason to doubt what

I said. I had no reason to doubt because of the follovving:

• Dylan was sick and seemed to spend a great deal of time in bed. I was under the

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impression that he was unemployed, and, as stated below in my paragraph 17, he

claimed to be too sick to find a new job.

• I started coming home for lunch to save money, sometimes finding Dylan still at

home in bed. Although he had complained of illness and stress before the Ad, the

continual nature of his malady and extended periods in bed had not occurred before

the Ad.

• I later learned that he has a severe migraine disorder that causes him to become sick

for long stretches at a time. Today he still suffers from this condition, and even with

years of medication, diet changes, lifestyle changes and treatment, he still becomes

sick for long stretches when in a stressful situation.

17. The Complaint alleges I said: I didn't know ho\V we ·were going to pay the bills. The

statement was true, and when I spoke those words I had no reason to doubt what I said. Here

are the reasons why:

• 1 recall I earned about $19,000 to $25,000 per year at the time. It was difficult for two

people to live on that. We were living paycheck to paycheck.

• I cannot say for certain if I paid the bills in their entirety or not, but I do remember

feeling like I paid a lot more than Dylan did, could rarely afford to have fun, and

could not afford better clothes, even though some of my colleagues and some people

on my beat teased me for having holes in my sweaters.

• Finances were always a touchy subject between me and Dylan, as they are for many

couples. I asked him to work harder on finding a job after the ad. He replied that he

was sick and would get on it \.vhen he was feeling better.

18. The Complaint alleges I said: It was reallv hard when people started leaving notes on mv


doorstep. The statement was true, and when I spoke those words I had no reason to doubt

what I said. See my paragraph 21 below for facts that also bear on this statement.

• The Complaint alleges I said: [It was really hard] when somebody kept calling in the middle

of the night threatening to rape me with his handgun. That was -- I mean. that was really

terrible. The statement was true, and when I spoke those words I had no reason to doubt what

I said. After the Ad, I answered a call and heard a male voice that said something like "Cut

this shit out, faggot. I'm going to fucking rape you with my handgun." It happened more than

once, but it only started after the Ad.

19. The Complaint alleges I said: And then professionally. it became much harder to do my job

because. yes. Idaho Falls was buzzing about mv sexual orientation. The statement \Vas true,

and when I spoke those words I had no reason to doubt what I said. See my paragraph 27

below regarding the difficulty I had collecting information once the Ad was published.

20. The Complaint alleges I said: And. you know. when I tried to talk to people. they would say

things like. "Oh. I can't talk to you. You're a homosexual. We don't associate with that." The

statement was true, and when I spoke those words I had no reason to doubt what I said. What

follows are some instances of the rejection:

• Before the Ad was published, I would regularly get coffee at one of those drive

through places that was basically just a little stand in a parking lot. These teenage

women worked there. They were bubbly and nice. flirting with me a bit and they

knew I worked at the newspaper because I'd told them and they read the newspaper

vvhen they were bored.

• But a few days after the Ad ran, one of these women refused to serve me. She said

something like, "I read about you in the paper and knovv what you are. I have a right


to refuse service and it's against my beliefs to serve people like you. You aren't

welcome here and you don't belong in Idaho Falls".

21. The Complaint alleges I said in response to a Maddow question: MADDOW: Did all of this

happen because you were being discussed on a local radio show or did this happen not until

your name appeared on the ad? ZUCKERMAN: This did not happen until mv name appeared

in the Ad. The statement I made is true, and when I spoke those words I had no reason to

doubt what I said.

• Although some attacks sta1ied before the Ad ran, probably as a result of a local radio

show, those attacks quickly died down. Much more serious events occurred after the

Ad was published. What happened after the ads ran was traumatic- one of the worst

periods of my life, and I would prefer to forget it and never speak of it again. The

attacks after the Ad were scarier and more vicious.

• Maddow's segment was not about what happened to me because of a talk radio show.

It was about Frank VanderSloot, Mitt Romney's finance co-chair, and what happened

to me after the ads he took out had run.

• Right before I made this statement, Maddow had asked me about what had happened

to me as a result of the ad, not what had happened before it. I described what had

happened to me after the ad.

• I understood Maddow' s question to be what I had just told her about: my experiences

after the appearance of the Ad, not about other, lesser incidents had happened earlier

to me.

• When I said, "This did not happen until my name appeared in the ad,'' I was referring

to what I had just related to Maddow the things that I had happened to me after the


Ad was published.

• All of the things that I described to Rachel Maddow were things that happened to me

after the Ad.

These were my experiences after the Trish and Halli show aired:

• Some people on my beat found out my sexual orientation, but did not react by

shutting me out.

• My office, home and cell phones rang through the night.

• Twice, I was awakened at night by someone ringing the doorbell to "find out the

truth."

• Most people that I talked to told me they didn't take the Trish and Halli show

seriously.

• By early May, 2005, a month before the Ad, I wrote and told my boss that "everyone

seems to have forgotten. It's old news. The city of Idaho Falls seemed to go back to

normal." I felt that the controversy related to the articles had largely blown over, that

the negative blowback was subsiding and that it was not as bad as I'd feared. Then

the Ad was published and it was like a bomb going off.

What happened to me after the radio shows was disturbing, but nowhere close to the evil and

hatred that appeared after the Ad. These were my experiences after the Ad:

• I received calls where people cussed me out, often using epithets. I decided at some

point to unplug the landline at night.

• Several notes -five to I 0 were left on my car and doorstep. I read only a few of

them. One said "FUCK YOU FAGGOT" and another said ·'You are over." I didn't

read the others and threw them out.


• As described in Paragraph 20, r was refused service at a drive-through coffee stand.

• At a Wal-Mart in the produce section, this guy asked me in a curt voice if[ was Peter

Zuckerman. He was maybe in his 40s and was alone. I said "Yes. r need to grocery

shop right now." The guy kept following me to other aisles. He stopped me again and

said "[ read about how you're homosexual and who you are. You're going to fucking

pay for this." I quickly left. He kept following me. I just left my grocery cart and left

the store.

• The day of the ads, a Sunday evening, I told Dylan I was going to do some errands. I

got in the car and drove to the parking lot nearby, close to the movie theater, and just

started crying. The lot was right next to the apartment. I had a very distinctive car at

the time a Honda Civic with a huge gash on the driver's side door and peeling paint

that I'd unsuccessfully tried to rustproof with spray paint that had turned fluorescent

blue, making the car look polka dotted. Someone -- also a middle-aged guy --

knocked on the window. I opened it a crack. The conversation went something like

this:

Him: "Do you live here"

Me: "I'm really busy right novv."

Him: "I know who you fucking are."

Me: "Please leave me alone."

Him: "You better watch your back."

He was about to say more, but then his cell phone rang. He hit the pickup button

and, in a strangely more polite voice, said "Hold on a second." As he spoke into

his phone, I drove toward the apartment.


He put the phone in his pocket and ran after me, yelling something.

• I drove onto a main road, and drove around town for about 30 minutes, headed back

to the apartment, and while driving by the movie theater, tried to determine if the man

was gone. I didn't see him. I returned to the apartment. It is possible he was the

source of how people found out where I lived because that's when I started getting

notes. I had a very distinctive car and, unfortunately, it was parked right in front of

the stairs that led directly to the apartment.

22. The Complaint alleges I said in response to a Maddow question: MADDOW: When he savs

he wasn't outing you. evervbody knew already. you dispute that contention? ZUCKERMAN:

I absolutely dispute that contention. The statement I made is true, and when I spoke those

words I had no reason to doubt what l said. "Everybody" did not know already I am gay.

• I knew nine people in Idaho Falls who knew I \Vas gay.

• Outside of Idaho Falls. I had told between 40-50 people in total I was gay, but many

of them were family members. Some of my more distant family members did not

know I was gay.

• Before the Ad, I had a strong feeling that the vast majority of people I interacted with

in Idaho did not know l am gay. My article on the Poynter Institute web site was so

obscure that it did not show up in search engine results under my name and could

only be found with advanced searching tools that few people besides professional

investigators knew how to use. It was not likely to have been seen by many people. I

did not know of anyone in Idaho besides my pa1tner Dylan who had read it. I did not

sense that anyone in Idaho Falls was likely to read that web site.

• I knew that some people in Idaho Falls must have heard the radio shmv and suspected


I am gay. The reactions I had gotten proved that. But the audience for the show was

relatively small, the show was not seen as a credible source. Most of the people who

found out through the show probably only considered it a rumor, not something that

was necessarily true, and 1 did not confirm the rumor to them. I did not fear that the

whole community knew or that most people I interacted with knew.

• Most of the facts I experienced in my daily life proved to me I ·was not "out" in my

community and that I largely was in control of whether people knew.

• When the Ad came out, that changed. As described in paragraph 21, my experience

was that I was "outed" because of the Ad -- a large audience, if not most people I

interacted with in Idaho, found out I am gay as a result of the Ad.

23. The Complaint alleges I said: The Idaho Falls Post Register was the place I worked. It was

mv colleagues 1 worked with. It was the people on mv beat. The statement was true, and

when I spoke those words I had no reason to doubt what I said.

• After the Trish and Halli shovv, my ability to do my job was not significantly

impacted. As I wrote contemporaneously, the controversy was brief and, although

stressful, not horrific

• After the ads ran, my ability to do my job V•/as severely damaged. See more facts

stated related to this in paragraph 27 below.

24. The Complaint alleges I said: Yes. a handful of people knew I'm gav. Mv bovfriend knew I

was gay. Mv parents and boss knew· I was gav. Mv boss knew I'm gav. The statement was

true, and when I spoke those words I had no reason to doubt what I said.

• As stated in my paragraph 22 above, I knew nine people in Idaho Falls who knew I was gay.

Those people included my boyfriend, parents and boss.


25. The Complaint alleges I said: But most -- I hadn't told anybody on my beat that I'm gay and

for good reason. because I was worried they wouldn't talk to me. The statement was true, and

when l spoke those words I had no reason to doubt what I said.

26. The Complaint alleges I said: And I feel like the worse part isn't so much that I was harassed.

but was that this was really important story that needed to get out there. This was a story

about child molesters in the boy scouts. It was about trying to protect kids from these kind of

pedophiles. The statement was true, and when I spoke those words I had no reason to doubt

what I said.

27. The Complaint alleges I said: And by making it so hard for me to gather information. it

actually really limited the story. There's a lot more to that story that I was not able to get.

And this was a major contributor for one of reasons I couldn't get it. The statement was true,

and when I spoke those words I had no reason to doubt what l said.

• Before the Ads, I had received several tips about approximately I 0 other chi Id

molesters in the Boy Scouts in Idaho.

• Before the Ads, I had also received some pages of the Boy Scouts "Perversion Files"

that included names of perhaps I 0 other people \Vho had been kicked out of Scouting

in Idaho for child molestation.

• I had been making progress on those leads before the Ads ran and before the first

installment of the Scouts Honor series ran, resulting in several other follow-up

"Scouts Honor" stories.

• But once the ads ran, people began shutting me out because they did not want to

associate with someone who is gay. Such reporting is delicate and people are easily


spooked, and I was disappointed. This had not happened after the Trish and Halli

show was broadcast.

• I did not want to report the events to the police because I covered them, because I

worried it would become a news story, attracting more attention, and because I had

promised to protect the source who had given me copies of the Confidential Boy

Scout files, and that person made me promise not to give them to anyone else. When

leaving Idaho Falls, however, I did encourage the police to ask for the Scouts for the

perversion files. -I do not know what happened as a result.

28. The Complaint alleges I said in response to a Maddow question: MADDOW: And in your

reporting you did in Idaho, in any of the reporting that you have done. have you ever dealt

with somebodv who is as interventionist in terms of trving to control the coverage that a

publication that you were involved in was actually standing behind? ZUCKERMAN: Not

quite like this. I've never had somebody run paid ads in the newspaper rm working at as

trving to discredit me as a person. The statement I made is true, and when I spoke those

words I had no reason to doubt what I said. I have never experienced anyone try to control

the coverage of a .story to this extent in a newspaper I was working for.

I declare under penalty of perjury under the laws of the State of Idaho that the foregoing

I 0 ''(\ is true and correct, and was executed this _/_,_1 clay of July, 2015 at Portland, Oregon.


CERTIFICATE OF SERVICE

I certify that on the 15111 day of Julv, 2015, I served true and accurate copies of DECLARATION OF PETER ZUCKERMAN IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT on the following persons, either by deposit in the U.S. Mail, addressed as follows and with the correct first-class postage affixed thereto, or be deposit in the designated courthouse mailbox, or by hand-delivery, as indicated below:

Ryan D. Nelson ] U.S. Mail, postage prepaid Michael L. LaClare ] Hand Delivery Jennifer Hall ] Fax Keith Woffinden ] Overnight Mail MELALEUCA, INC. ] Email 3910 South Yellowstone Hwy. Idaho Falls, ID 83402 Email [email protected] Email [email protected] Email [email protected] Email [email protected]

Counselfor Plaint(/fs·

Thomas A. Clare Elizabeth M. Locke Megan Meier CLARE LOCKE LLP 902 Prince Street Alexandria, Virginia 22314 Email [email protected] Email [email protected] Email [email protected]

Counselfor Plaint(/!~

Marvin M. Smith Marcia Morrissey SMITH & BANKS PLLC 3010 Jenner Lee Drive Idaho Falls, ID 8340 I Email [email protected] Email [email protected]

Counselfor Defendants The Foundationfor National Progress, dba j\;fother Jones. iV!onika Bauerlein, and Stephanie Mencimer

Charles A. Brown

] U.S. Mail, postage prepaid ] Hand Delivery ] Fax ] Overnight Mail ] Email


[ I U.S. Mail, postage prepaid


P.O. Box 1225 324 Main Street Lewiston, ID 8350 I Email [email protected]

Counsel.for Defendants The Foundation.for National Progress, dba J\lfother Jones, Monika Bauerlein, and Stephanie kfencimer

James M. Chadwick David E. Snyder Tenaya Rodewald Robin Regnier SHEPPARD, MULLIN, RICHTER & HAMPTON LLP 379 Lytton Avenue Palo Alto, CA 9340 I Email [email protected] Email [email protected] Emai I trodewald@sheppardm u 11 in.com Email [email protected]

Counsel for Defendants The Foundationfi:Jr National Progress. dba Mother Jones, Monika Bauerlein, and Stephanie Mencimer

Matthew C. Parks ELAM & BURKE 251 E. Front Street, Ste 300 Boise. ID 83702 Email [email protected]

Counsel.for Defendant Peter Zuckerman

] Hand Delivery ] Fax ] Overnight Mail ] Email

[ ] U.S. Mail, postage prepaid [ ] Hand Delivery [ ] Fax [ ] Overnight Mail [ ] Email


Gary L. Bostwick Attorney.for Defendant Peter Zuckerman

- -DECLARATION OF PETER ZUCKERMAN I/S/O MOTION FOR SUMMARY JUDGMENT Page 17

affidavit of peter zuckerman from summary judgment

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