Press advocates welcome new California subpoena law

Thursday, September 21, 2000

Press advocates cheered a new California law requiring that
journalists be granted a five-day grace period before being forced to testify
under subpoena. The law also requires judges to offer certain findings of fact
before citing journalists for contempt.

“What this will do is make the judge go through a few more hoops and
actually put the findings in the record,” said Lucy Dalglish, executive
director of the Reporters Committee for Freedom
of the Press. “I hope this will make judges not be so quick to cite
journalists for contempt.”

Dalglish and other media experts say that California judges often
order journalists to appear before the court and bring all of their material
within 24 hours.

“This should give journalists time to react and to get the subpoenas
quashed,” Dalglish said in a telephone interview.

Assemblywoman Carole Migden, D-San Francisco, introduced the bill
early in the General Session in response to several cases in which journalists
were jailed or threatened with jail for refusing to testify about confidential
sources or unpublished information.

The bill was approved 73-0 in the Assembly and 38-0 in the Senate.
Gov. Gray Davis signed the bill into law on Sept. 12.

The new law, which goes into effect Jan. 1, 2001, says that a
journalist’s testimony under subpoena doesn’t constitute a waiver of his or her
rights under the state shield law. The law requires the court, except in
extreme circumstances, to provide at least five days’ notice to a subpoenaed

The new law also requires the judge to detail the importance of the
information and explain why alternative sources are insufficient to satisfy the
defendant’s right to a fair trial.

Tom Newton, general counsel for the California Newspaper Publishers
Association, said judges too often ignored the state’s shield law, which gives
journalists certain privileges in keeping sources confidential and not
revealing unpublished material in court.

“We found the judges not even considering this,” Newton said. “If the
defendant wants it, the defendant gets it. Now a judge has to have his reasons
on the record why the shield law should be pierced.”

Several recent press cases sparked the new law.

Earlier this year, Tim Crews, editor and publisher of the
Sacramento Valley Mirror in Glenn
County, spent five days in jail after he refused to reveal his confidential
sources for a story involving the sale of an allegedly stolen firearm. The
attorney for the state police officer charged in the case said Crews’ sources
would help the defense.

The trial court agreed, determining that the officer’s right to a fair
trial outweighed Crews’ protection under the shield law. The
charges against Crews were later
dismissed only after some of the charges against the officer were

Newton said the new law would have forced the judge in Crews’ case to
make a complete record of the subpoena request and explain why such information
wasn’t available elsewhere. And information was available elsewhere, Newton
said, but the prosecutor in the case did not subpoena Crews’ likely sources, a
handful of law enforcement officials privy to details of the case.

In another case, a reporter for the Marin
Independent Journal
refused to answer a prosecutor’s questions
during a trial and was hit with a contempt order and a $5,000 fine.

Dan Fost testified in a court case but only to verify articles he had
written involving the case and to confirm general journalistic practices. He
asserted his reporter’s privilege under the shield law when asked about other

The state attorney general said Fost forfeited his rights when he
agreed to answer questions on the stand. Last May,
a state appeals court threw out the
contempt-of-court ruling against Fost.

In yet another case, David Sommers, editor of the California State
University-Sacramento State Hornet,
and others were subpoenaed to provide testimony or evidence other than that
published in the newspaper. An attorney for a man arrested at a campus football
game had sought witness contact information and “all news-clips, films, videos,
photographs, or other documents pertaining to” her client’s arrest. Last April,
a Sacramento County Superior Court judge granted Sommers’ motion to quash
the subpoena.

“We wanted journalists to have the ability to meet with their
employers and, hopefully, legal counsel qualified to advise them on shield-law
issues,” Newton said. “If they have less than 24 hours, they are often not

He said the new law should protect California journalists from
appearing to be agents of government or criminal defendants and “having to
waste their precious resources doing these non-job-related activities.”

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