First Amendment outrage of the week: Trying to turn reporters’ notes into ‘evidence’

Wednesday, May 10, 2000

Periodically, identifies a “First Amendment Outrage of the Week,” recognizing the single act or gesture most offensive to the spirit of free speech, free press and free expression.

Original story
  • Kansas newspaper posts reporter’s notes before giving them to prosecutors

  • Trying to turn reporters’ notes into ‘evidence’


    An unfortunate series of events in Wichita, Kan., in the past few weeks reminds us of how fragile the wall of First Amendment protection surrounding a journalist doing his or her job really is.

    In this case, a reporter for The Wichita Eagle, Tim Potter, was following up on a brutal murder of a woman, Janice Vredenburg, in her north Wichita home. He sought an interview with the prime suspect, Tanner Green. Green telephoned Potter from jail, and they talked for about an hour.

    Although Green, who has been charged with the murder, has refused to talk to police about the crime, he claimed he was innocent during his interview with Potter. Green said he could explain the blood that police found on his watch and account for his whereabouts on March 27, the day of the murder.

    Potter wrote a story from that interview, and the Eagle published it on April 19. The next day, Potter and the newspaper received subpoenas demanding that they turn over to prosecutors all notes, drafts and unpublished materials relating to the interview with Green. In addition, Potter was ordered to appear at an “inquisition,” which in Kansas is a closed-door legal proceeding similar to a grand jury, to answer questions about the interview.

    “It is the state’s position that it’s no longer the property of The Wichita Eagle,” said Assistant District Attorney Kevin O’Connor in seeking a transcript of the interview. “It’s evidence in a first-degree murder case. It should be in our possession right now.”

    The newspaper initially decided to fight the subpoenas. It went to Sedgwick County District Court on May 2 seeking to quash, but District Judge Clark Owens refused the requests. Although there is some precedent to suggest that a reporter’s notes can be withheld from lawyers if they contain information that is not relevant to the case or available from another source, Owens said that was not the case here.

    Owens said the information was clearly relevant and unavailable from any other source, according to a report on the court hearing in the May 3 Eagle. He speculated some of the material might end up as evidence in Green’s murder trial.

    After the newspaper refused to turn over the notes, Owens cited the paper for contempt and fined it $500 a day until the notes were produced. At first it appeared the paper might appeal, but three days later, the newspaper posted all of Potter’s interview notes on its Web site, and 20 minutes later turned the notes over to prosecutors.

    In a story on May 6, Eagle Editor Rick Thames said the paper was complying with the subpoena “reluctantly” because he and publisher Peter Pitz “determined it was unlikely an appeal of Owens’ ruling would be successful.”

    “It was clear it was going to be a very difficult road, and our chances were not very good in this case,” Thames was quoted as saying. He elaborated the next day in a Sunday column, saying he and Pitz thought the appeal chances were “very slim” because Kansas, unlike 31 other states and the District of Columbia, has no specific “shield law” that prevents government agencies from seizing files of the working press.

    Thames said the paper put the material on its Web site before complying with the subpoena because that let the paper “provide the district attorney’s office (with) what is now published information. That may not seem like much of a distinction to many, but we believe it is very important.”

    Indeed, it doesn’t seem like much of a distinction, and we might have wished that the newspaper had fought harder. But in talking with legal experts familiar with shield laws and the Kansas case, it appears unlikely, as Thames said, that the paper would have won. Without a shield law, the paper would have needed the courts to make new law, and that is a long shot.

    “Kansas has no shield law, and no basic reporter’s privilege,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. “In Kansas, they would be out there trying to create new law, and probably not being too successful in it.”

    But the prosecutors should not have pursued the newspaper and its reporter in the first place. The paper, after all, ran a story about the interview immediately after it was conducted. That story contained the same information that the reporter’s notes did about the suspect’s potential alibi and his explanation for blood on his watch.

    That meant the police, simply by reading the news story, had leads to run down to see if the suspect’s alibi holds up. Prosecutors had a preview of how the suspect would try to explain away key evidence.

    This is why we need shield laws. In a country with a free press, journalists cannot be used as an officially controlled investigatory resource. Newsgathering should not be considered “evidence” — the journalist is not on trial, and the published or broadcast report can point to real evidence that police and attorneys are free to check out, rather than seeking to “possess” raw journalistic material that should be protected by the First Amendment.

    Vernon Keel, a professor of First Amendment law at Wichita State University, said the prosecutor’s quest for reporter Potter’s notes would have been less likely to succeed if Kansas had had a shield law. All that journalists have in Kansas is some common-law protection, he said, in that the Kansas Supreme Court has recognized the 1972 Branzburg v. Hayes federal decision that sets forth a three-part test of qualified privilege for a journalist. That test, which Owen applied, requires that there be probable cause to believe the journalist has relevant information; that the information be available in no other way less damaging to First Amendment rights; and that there be a compelling and overriding interest in the information. But it is still a subjective standard that can vary in its application from judge to judge, case to case.

    “I think a shield law has less subjectivity and more precision in its application than court precedent as we have here in Kansas,” Keel said. “The judge in this case clearly was looking at the three-part test and saying, ‘You don’t meet it.’ “

    Keel, who is president of the Kansas Sunshine Committee for Open Government, noted that in a recently completed legislative session, state lawmakers agreed to substantially strengthen the state’s open records laws. But nothing was done about protecting reporters with a shield law, because Keel says it’s not been an issue previously.

    Keel, who holds a similar post with the Society for Professional Journalists, said the Wichita Eagle case may change that. “I promise you as sunshine chair for SPJ in Kansas that we certainly will begin to initiate some discussions among journalists in Kansas about the need to seek legislation that will provide statutory protection in matters like this,” he said.

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