Poor police work no excuse for stripping journalists of rights
Like episodes of “Who Wants to be a Millionaire?,” the subpoenas just keep coming.
Two recent cases in which reporters have been subpoenaed demonstrate the breadth of this problem. In one case, ABC News has been ordered to produce unedited videotape from an investigative report. In another, a University of Montana journalism student has been directed to turn over raw footage of battles between rioters and police. Prosecutors subpoenaing journalists, it seems, are more ubiquitous than Regis Philbin.
In these two cases, prosecutors are hoping that good reporting will rescue poor police work. The ABC News case stems from a “20/20″ report on trepanation, the practice of drilling a hole into a person's skull to relieve pressure and achieve a higher consciousness. In the program, ABC broadcast a purported trepanation but superimposed a dot over the drilling. Viewers, therefore, were unable to determine whether the two men ostensibly performing the procedure actually drilled into their subject's skull.
Prosecutors in Iron County, Utah, were similarly unsure, but they still charged the two men with practicing medicine without a license. Their weak case became even weaker when the alleged victim, a woman now living in England, denied that the men had performed the procedure. Instead, she said, she performed the trepanation on herself. The attorneys for the men concurred, claiming the video was simply a dramatization.
Suddenly desperate, the prosecutors turned to the “20/20″ team to prove their case. They subpoenaed both the reporter, Chris Cuomo, and the unedited videotape. ABC resisted these subpoenas, but Utah 5th District Judge J. Philip Eves ruled that Cuomo must testify because he is a “necessary and material” witness. Eves also ordered ABC to produce the unedited videotape.
In the University of Montana case, the videotape at issue was taken by Linda Tracy, a 32-year-old senior majoring in radio-television journalism. Tracy taped the clashes between Missoula police and protestors at a Hell's Angels gathering last July for a documentary she was producing as part of an internship.
Although police already have arrested 63 people for their involvement in the riot, they claim they need the portions of Tracy's video that have not been broadcast to determine whether more arrests are warranted. Tracy is resisting the subpoena, relying in part on a Montana statute that protects information collected during newsgathering.
Unlike Tracy, ABC cannot invoke the protection of a state shield law. Even in the absence of a state statute, however, the U.S. Supreme Court's 1972 decision in Branzburg v. Hayes requires states, under the First Amendment, to offer some protection for newsgathering. Most courts (and most state statutes) utilize a balancing test that weighs the relevance of the subpoenaed information, whether the information can be obtained by other means and whether the subpoena is justified by a compelling interest.
The increasing ease with which courts find this test satisfied is the primary reason prosecutors are more often seeking to turn reporters into witnesses. Many judges define relevance broadly, accept at face value a prosecutor's claim that information cannot be obtained elsewhere and hold that enforcement of any criminal law is a compelling interest. Under these standards, almost no newsgathering is protected.
The flaws in this lax approach are apparent in the Utah and Montana cases. In the Utah case, the judge claimed Cuomo must testify because he was the only definitive witness to the procedure. While Cuomo might be the best, most disinterested witness, he clearly is not the only one. The alleged victim can and should be available. And if she refuses to testify, can the state have a truly compelling interest in prosecuting a victimless crime?
The balance in the Montana case weighs even more heavily in favor of protecting Tracy's videotape, as testimony about the riot is available from scores of witnesses. While prosecutors undoubtedly like the convenience and impact of videotape, the First Amendment does not permit them to involuntarily deputize every reporter and cameraman.
Courts need to restore the intended protective function of the Branzburg test. When a journalist is subpoenaed, the judge should require the prosecutor to demonstrate that the desired information is uniquely relevant, to produce meaningful evidence that police have attempted to obtain the information elsewhere and to offer an interest so compelling that it justifies stripping the reporter of his or her First Amendment protection.
Until judges hold prosecutors to this higher standard, the subpoenaing of reporters will continue, threatening the independence of the media, the freedom to gather news and the integrity of the First Amendment.