It’s quick, it’s easy, it’s a subpoena

Wednesday, November 18, 1998

Not all that many years ago, the showdowns between journalists and lawyers over confidential sources and other non-published information raised difficult ethical and legal issues.

Perhaps a confidential source had witnessed a violent crime that was stumping police. Maybe a journalist knew the whereabouts of a criminal who was successfully evading arrest. Perhaps the only recorded statement of a deceased mobster was the exclusive interview given to a reporter several years earlier.

Journalism professors and judges struggled in cases like these to define the point at which the public’s interest in unpublished information outweighed the media’s need to freely and independently gather and report important news. Many states responded by passing bills — called shield laws — designed to protect the media from all but the most serious requests for confidential information. While shield laws vary from state to state, most require a lawyer seeking information from a reporter to demonstrate that (1) the information is relevant to the case, (2) the need for the information is compelling and (3) the information cannot be obtained from another source.

When these shield laws were adopted, most judges applying them protected the media’s interests religiously, routinely rejecting requests from lazy lawyers who were attempting to obtain information that either was irrelevant or available elsewhere. Without this protection, these judges reasoned, reporters would be penalized for investigative reporting and forced to spend their days testifying rather than gathering news.

Judges today, however, seem to have forgotten the important interests served by shield laws and appear to be going out of their way to encourage prosecutors and other lawyers to subpoena reporters. Three recent cases stand out:

  • In Georgia, a reporter to whom a prisoner confessed was ordered to answer 47 questions from a prosecutor about the prisoner’s mental state, despite the fact that the prisoner had confessed three other times before the interview. The judge also appeared to ignore the fact that the jailers and other law enforcement officers were better aware of the prisoner’s mental state than the reporter.
  • In California, a former newspaper reporter is facing a five-day jail sentence for refusing to reveal confidential sources before a grand jury, despite the fact that prosecutors were able to obtain a 23-count indictment without his testimony.
  • In North Carolina, a trial judge has ordered a reporter to either reveal two confidential sources or surrender to U.S. Marshals. The judge apparently believes that the reporter’s sources for a story on a secret $36 million settlement reached between Conoco, Inc., and residents of a contaminated neighborhood were some of the neighbors, who would have violated the judge’s secrecy order by disclosing the terms of the settlement. The case is now before the court of appeals, which has ordered that the reporter may remain free pending the court’s ultimate decision.

The Georgia and California cases also are on appeal, and all three trial court orders should be overturned. The Georgia prosecutor clearly cannot demonstrate that only the reporter has knowledge of the prisoner’s demeanor. The California prosecutor cannot possibly show that the need for the former reporter’s information is compelling, as the grand jury already has returned a lengthy indictment. In the North Carolina case, the identity of the sources is hardly compelling, especially in light of the fact that the only “damage” from the disclosure is that Conoco has had to pay more to settle similar cases. Moreover, the number of neighbors who could have been sources is relatively small, which would seem to require the judge to thoroughly question the neighbors before focusing his inquiry on the reporter.

Regardless of how these cases are decided on appeal, they are just the most recent examples of the way prosecutors and other lawyers today routinely use subpoena power to attempt to extract information from journalists. Trial judges encourage this trend by granting requests for confidential information that would have been rejected out of hand years ago.

While no hard evidence exists to explain why judges apply shield laws more loosely than they did before, the tenor of their decisions suggests that judges no longer view the media’s interests in unfettered newsgathering as worthy of vigorous protection. This may be because judges share society’s distaste for confidential sources. It also may be that judges — like many members of the public — believe that the media have abused their First Amendment freedoms. Or it simply may be that the media have not done a good job of educating a new generation of judges about the importance of shield laws and the media’s newsgathering function.

Whatever the reason for the change in judicial attitude, the cases in Georgia, California and North Carolina suggest that the worst is far from over. Even if all three of these cases are overturned on appeal, the media have a great deal of work to do before prosecutors and judges again view a subpoena to a reporter as a last resort.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Beckman Badger & Lee and a legal correspondent for the First Amendment Center.