News organizations win subpoena battle over footage of Michigan campus riot

Tuesday, May 4, 1999

The Michigan Supreme Court last week granted 11 news organizations a reprieve from a prosecutor's subpoenas for unaired video and unpublished photographs of a March 27 riot on the Michigan State University campus. The court, however, did not rule on strict First Amendment grounds.

Instead, the Supreme Court sent the case back to state district court because the prosecutor had used the wrong kind of subpoena. The high court said the prosecutor could request an “investigative subpoena” — one comparable to a search warrant — but would not guarantee that such action would get it or other courts' approval.

News officials in Michigan declared victory anyway.

Susan E. Kelley, news director for WWMT-TV in Kalamazoo, said television news directors and newspaper editors in Michigan were “extremely grateful the First Amendment didn't take the horrible hit we were anticipating.”

Prosecutor Stuart Dunnings III sought hundreds of unpublished photographs and video footage taken the night of March 27, when more than 5,000 people rioted on the Michigan State campus and in downtown East Lansing. The riots began in the final moments of the NCAA semifinal basketball game in which Michigan State lost to Duke.

“The continued delay by the news media in compliance with the law could further jeopardize our efforts,” Dunnings said last month, adding that he hoped to charge as many alleged rioters as he could before Michigan State's summer vacation begins May 7.

Two lower court judges sided with Dunnings, ruling that unpublished or unaired materials weren't protected because the riot was filmed in a public place. The judges said, too, that the state's shield law only protects confidential sources.

The decisions required the Lansing State Journal, the Detroit Free Press and The State News — Michigan State's student newspaper – and eight television stations to submit to the subpoenas. All but one of the television stations refused to turn over any unpublished materials.

“We believe it is wrong to be compelled to turn over to the police the materials which we have decided are unfit to broadcast or to publish,” WWMT's Kelley wrote in a note. “The prosecutor would trample on the First Amendment rights and long-developed legal privileges of journalists in a hunt for those who trampled on the reputation of his city and perhaps committed crimes in the streets.”

Kelly said they were confident the courts would rule against any investigative subpoenas because “they are clearly fishing expeditions.”

In fact, Circuit Court Judge Lawrence Glazer already has forbidden the use of investigative subpoenas in the case. Glazer cited a 1995 state law which says that investigative subpoenas can't be used against the media unless the media is the target of an investigation.

Jane Kirtley, executive director of the Reporters Committee on Freedom of the Press, said it was unfortunate that it took the Michigan Supreme Court to quash the subpoenas. She also said she was disappointed that the court declined to cite First Amendment free-press rights.

“News organizations run into [situations] where being a good citizen requires them to cooperate with authorities but being a good journalistic citizen means upholding First Amendment rights,” Kirtley said. “And sometimes that puts you at odds with authority. But, as a journalist, your first allegiance should be to press rights.”