Journalists can’t be cops, too

Friday, April 16, 1999

Several Michigan newspapers and television stations aren’t faring very well in a struggle to preserve their independence from law enforcement.

This week District Judge David Jordan rejected the First Amendment arguments of two newspapers and eight TV stations and ordered them to turn over to Ingham County Prosecutor Stuart Dunnings III photographs and TV videotape taken during a March 27 riot on the Michigan State campus. Last week, the Lansing State Journal got the same treatment from Judge Jordan when it resisted Dunnings’ subpoenas.

The news organizations plan to appeal but the courts are increasingly unsympathetic in such cases.

After the riot, law enforcement agencies went to work tracking down those responsible. The prosecutor fired off subpoenas to 19 different media organizations for published and unpublished material. The police installed a tip line and put up a Web page with photos of people they wanted to identify. Sharp-eyed clerks processing film at a department store turned over to police five rolls belonging to a photographer working for the Associated Press wire service.

Not that the media weren’t cooperative. Newspapers and TV stations voluntarily provided police with published material. The Lansing State Journal, in addition to its regular coverage, displayed dozens of photos on its Web site.

In their zeal to salvage the community’s reputation and catch the rioters, nearly everyone seemed willing to overlook the implications of vigilante clerks pawing through processed film for evidence of criminal activity, anonymous police tip lines that also serve as “get-even lines,” and the posting on the Internet of the photos of hundreds of people, most of whom will never be charged with wrongdoing.

In fact, many questioned the civic commitment of news organizations for fighting the subpoenas for their photos and videotape.

The Michigan media are not the only ones who find themselves in this quandary. Across the nation, there is a growing tendency on the part of legislators, the courts, police and prosecutors, as well as the public, to view the press as mere adjuncts to law enforcement.

Examples of how this mind-set plays out in real life are everywhere.

  • A reporter for the Akron Beacon Journal has been sentenced to jail for refusing to tell a prosecutor about confidential sources in a story about alleged Medicaid fraud.
  • Reporters in Georgia, California and North Carolina also face jail time for not revealing sources in important stories.
  • Authorities in Reno, Nev., raided three television stations and a newspaper in search of material relating to media interviews with a man accused of shooting at people on Interstate 80.

    The list of instances of law-enforcement officials strong-arming journalists into doing their work for them goes on and on.

    This is particularly evident in the increasing number of subpoenas being issued to journalists, documented in a new report by the Reporters Committee for Freedom of the Press. More than half of the print and broadcast news operations surveyed reported that they had received at least one subpoena that year.

    More telling, the Agents of Discovery report states that, “In opinion after opinion, judges fail to acknowledge any special role for the media in a democratic society, or any public interest in ensuring that the media remain impartial and disinterested both in perception and reality.”

    So the tenor of the times favors the idea that freedom of the press must be subordinated to the demands of police and prosecutors. The danger to democracy in that notion was quite apparent to the framers of our Constitution two centuries ago and should be obvious to us today.

    But to those who don’t see that danger, here are a few reasons why reporters and photographers and their bosses should resist efforts by prosecutors and police to make them part and parcel of law-enforcement efforts.

    Press credibility is seriously compromised if journalists are routinely and regularly subpoenaed to provide notes, photos and other material they have gathered in their reporting. Journalists will be viewed as another arm of the law. Sources won’t provide vital information. Readers and viewers will question the motives and allegiance of reporters.

    At scenes of crime and catastrophe, reporters will be viewed as gatherers of evidence rather than news, as informants rather than informers. They are at risk of injury or worse. In fact, one photographer in the Michigan State rioting was severely injured by those who accused him of being in league with the law.

    Journalists must be viewed as independent recorders of what happened, which may well include incidents of police brutality or violation of rights as well as instances of law-breaking.

    Further, if news organizations are required to devote more and more time and resources to providing material for prosecutors, defense attorneys or ordinary citizens involved in civil suits, they will be seriously hampered from doing what they are supposed to do — gather and report the news.

    Subpoenas also interfere with journalists’ ability to cover important
    stories. This week, Declan McCullagh, Washington bureau chief for Wired News, cooled his heels in a Tacoma, Wash., hotel while an important trial he had been covering unfolded a few blocks away. Because he has been subpoenaed to testify in the case, he couldn’t be in the courtroom to cover the trial in person. McCullagh finally took the stand for a few minutes late yesterday.

    This has become a growing problem, where news organizations have had to
    reassign or reduce coverage because prosecution or defense attorneys have
    taken reporters out of the loop by making them a part of the case.

    Routine and regular subpoenaing of journalists and their material is a pernicious practice. It makes the press an arm of the law. It endangers journalists on the job. It shuts down the flow of information that informs the public and helps the police and prosecutors. It compromises an independent source of information that a democratic society depends on.

    What can be done? Major press organizations need to educate the public and their own members. Then they need to persuade legislators to strengthen and increase shield laws, law enforcement agencies to be more imaginative and resourceful in making their cases, and judges to be more sensitive to the damage done to democracy by diminishing the First Amendment rights of the press — and the people.

    And journalists need to keep in mind that when the press succumbs to subpoenas, what the police will hail as cooperation the public will dismiss as complicity.

    The role that the police and prosecutors play in our society is so important that we have armed them with guns and badges, warrants and subpoenas, the power to arrest and punish.

    The role of the press in our society is so important that we have given it the right to keep distance and detachment between those who enforce the law and those who report on law enforcement. If we force the press to do its “civic duty” at the expense of its First Amendment duty, then we’ll have to find someone else to bring us the news next time.

    Freedom and independence for the press is not a special privilege for journalists. It is a special protection for the people.

    Paul McMasters may be contacted at