Report: Broadcasters tend to submit to subpoenas

Monday, March 29, 1999

A new report on subpoenas served to news organizations reveals that broadcasters have overwhelmingly received and complied with more of them than their print counterparts.

Broadcasters complied with 73% of the subpoenas they received in 1997, according to a March 16 report released by the Reporters Committee for the Freedom of the Press. While newspapers managed to negotiate the withdrawal of nearly half the subpoenas they received that year, broadcasters did so only 17% of the time.

“Broadcast news operations deliver their unique product through a highly visible medium, and perhaps that explains why they attract the lion's share of subpoenas,” said Jane Kirtley, executive director of the Reporters Committee. “But fighting subpoenas doesn't have to mean a full court battle. Broadcasters could learn a lesson from their print colleagues: Never underestimate the power of persuasion.”

The report, “Agents of Discovery,” examines the number of subpoenas served on the news media during 1997. Funded by the John S. and James L. Knight Foundation, the project follows up on efforts to examine the frequency of subpoenas in 1991, 1993 and 1995.

According to the survey, more than half of 597 respondents had received a subpoena in 1997. Altogether, they reported a total of 2,725 subpoenas from lawyers seeking published and unpublished material, testimony and other information.

Although only 187 of the respondents were broadcasters, they received 1,941 or 71% of the total number of subpoenas reported. The broadcasters fully complied nearly 73% of the time, while newspapers did so only about 23% of the time.

Barbara Cochran, executive director of the Radio-Television News Directors Association, said the real issue was the “outrageous frequency” with which lawyers go to television stations to obtain this material.

“I think broadcasters are being hit inordinately and unfairly with subpoenas,” Cochran said. “And the reason broadcasters are hit so much more often is that the nature of what is broadcast is more compelling.”

Cochran noted that 80% of subpoenas served on broadcasters were for previously broadcast material. She compared that to statistics showing that broadcasters had complied 73% percent of the time.

“Even with material previously broadcast, they must not be complying all of the time,” she said. “I think where most broadcasters draw the line is with material that hasn't been broadcast or notes that should be off limits to subpoenas.”

But Kirtley said broadcasters might want to consider challenging the subpoenas more often. She noted that when news outlets — print and broadcast — challenged subpoenas, they were successful about 75% of the time.

Researchers found, however, that a significant percentage of survey respondents reported they had changed newsroom policies even after a subpoena had been successfully blocked. According to the report, 23% of the respondents said they took actions such as establishing a policy of destroying unpublished notes and videotape, removing subpoenaed reporters from stories and curbing the use of confidential sources.

“The threat of being involved in any suit makes you think twice,” Robert Maney, editor of the Paxton (Ill.) Daily Record, told researchers.

Researchers wrote that “taking these actions for legal, rather than editorial, reasons undermines [journalists'] First Amendment right to gather and disseminate the news.”

Although researchers said they found great disparity in how news organizations handled subpoenas, they wrote that “the threat and use of subpoenas burdened all who encountered them. Every minute and every dollar spent responding to subpoenas, or developing policies to avoid future subpoenas, were time and money taken from the news-gathering process.”

Press advocates are worried about the future with regard to subpoenas.

In her foreword to the report, Kirtley noted that a number of state and federal courts had scaled back the First Amendment right to protect confidential sources and unpublished information.

“It is disturbing that so many judges seem to regard a subpoena served on a news organization as no different from that served on any other business entity,” Kirtley wrote. “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.”