Reporter battles California attorney general over subpoenas

Wednesday, April 21, 1999

Peter Y. Sussma...
Peter Y. Sussman
A San Francisco-based journalist claims the California attorney general's office has initiated a drawn-out legal battle over his reporting in an effort to stifle his coverage of state prison issues.

But state attorneys say they want freelance reporter Peter Y. Sussman to hand over all of his notes, correspondence and research concerning the media's access to prisoners to help them defend the California Corrections Department against an inmate's lawsuit.

Several free-press organizations say state Attorney General Bill Lockyer and his staff are treading on dangerous ground in what they describe as “a simple lawsuit over prisoner treatment.”

“By ensnaring a respected journalist with little or no direct relationship to the case and by attempting to pry open this journalist's professional and personal life, the state is making a frontal assault on the First Amendment,” the Society of Professional Journalists said in a recent statement.

Over the past three months, Sussman says he has sweated through more than 14 hours of pre-trial testimony in connection with a state prisoner's civil lawsuit concerning media access to inmates.

Sussman says he also has received several subpoenas ordering him to turn over articles, letters, e-mails, computer records and other documents in connection with the suit. One subpoena demanded that he provide the attorney general with a copy of a pending contract with Harper's magazine.

“This thing is so broad, anyone I've talked to could be subpoenaed,” Sussman said. “What all of this has to do with this prisoner's lawsuit is beyond me.”

The subpoenas and depositions stem from Woodard v. Duncan, a civil case with its own First Amendment issues involving the media's right of access to prisoners. In his lawsuit, Robert J. “Boston” Woodard claims he was removed as editor of the prison newspaper after he wrote a letter to a journalist inviting him to interview Woodard at the prison.

David Newdorf, Woodard's attorney, said his client filed the lawsuit in August 1996 when he was a prisoner at the California Men's Colony in San Luis Obispo. The trial is slated for August.

As editor of The Communicator, Woodard had often invited outside reporters to inmate events and concerts. In a February 1996 letter, Woodard invited a journalist to interview Woodard's rock band, which included James Gordon, a former drummer with Eric Clapton and co-composer of the hit “Layla.”

According to the lawsuit, prison officials fired Woodard as the paper's editor and confined him to his cell for five days on charges of “circumventing policies” that forbade prisoners from talking to reporters face-to-face.

Newdorf said that while the California prison system issued such a policy in 1996 as an “emergency” ban, it never officially approved it or put it in writing.

“When Woodard wrote the letter, there was nothing in writing and there was no official revision of policy,” Newdorf said. “He believes the action was motivated by the work he was doing in several First Amendment areas, such as inviting media into the institution.”

As for Sussman, Newdorf said the reporter's role in the case “is quite immaterial.” He said Sussman briefed him on media-access issues and had talked with Woodard in the past, “but that's the full extent of his role.”

“It's mystifying to me as a legal matter that they have spent so much time deposing him,” Newdorf said. “The only thing that makes sense to me is that Mr. Sussman is currently working on an article for Harper's magazine on this very issue. The state Corrections Department views him as a political enemy and wants to find out as much as possible.”

Sussman said attorneys asked him numerous questions unrelated to the Woodard case, including inquiries into an article on media access to inmates for Harper's and potential book contracts.

“They were very, very concerned about what I'm going to be publishing next,” he said. “Frankly, a book contract would be so far down the line it would be hard to believe that any information is relevant to this case. … I just know that it's totally improper and probably illegal and abusive.”

The first subpoena for Sussman arrived Jan. 11, ordering him to gather numerous records and appear for a deposition the next day. The reporter testified for nearly four hours but refused to turn over anything but published articles.

In a March 2 letter to the court, Sussman asked for relief from future subpoenas on two grounds, citing the impossible burden of gathering all of his records from the past nine years and his First Amendment rights as a journalist.

But the judge allowed the attorney general to depose Sussman again on March 18, this time for more than 10 hours.

Sussman's situation has sparked the attention of groups such as the California First Amendment Coalition and the Society of Professional Journalists, which accuse state officials of drawing the reporter “into a Kafka-esque legal drama that now threatens to extend into cyberspace and chill the free exchange of ideas there.”

On April 9, Deputy Attorney General Jane Catherine Malich asked the U.S. District Court of Northern California to extend discovery to allow her to subpoena an online community known as The Well for all postings and e-mail on the issue of media access to prisoners.

In her petition, Malich said she needed the records because Sussman was a member of The Well and likely had corresponded with other members about the Woodard case. She wrote that the postings would help justify the need for Sussman to hand over his documents.

Gail Ann Williams, executive director of The Well, said she couldn't comment about the subpoena because she hadn't received it.

“The thing is, we haven't seen the subpoena, so I don't really know if it would be appropriate or outrageous,” Williams said. “We've known it would happen for a couple of weeks now, but I can't comment on something that is, at this point, imaginary.”

Malich's office referred calls to Lockyer's office.

Nathan Barankin, a spokesman for Lockyer, said the attorney general's job required him to defend state agencies against all lawsuits, and “we will defend them to the best of our ability. To do otherwise would be a dereliction of duty.”

Barankin added that the attorney general “is not in the business of chilling free speech.” The subpoena, he says, focuses on Sussman's role as an adviser to Newdorf and not as a journalist.

“It would be unconscionable and extreme to make such a subpoena on a person whose only role was to have written articles critical of department policy,” Barankin said. “Certainly we would not be making such a subpoena request were we to believe that Sussman was limited exclusively to having written articles about inmate interaction policy.”

Terry Francke, general counsel for the California First Amendment Coalition, disagrees. He says state officials seem to be targeting Sussman because of his reporting on the state prison system.

Francke says government doesn't have license to conduct searches of a reporter's confidential or unpublished materials. He noted that the 9th U.S. Circuit Court of Appeals determined in the 1972 case Bursey v. U.S. that the government must show “that the line of interrogation bears a substantial connection to the compelling subject matter of the investigation and is necessary to vindicate its interest in enforcing the law in question.”

Francke said: “If this were permitted, then I don't see any reason why a journalist or a newspaper or a broadcast outlet could not have its reporters or editors subpoenaed and heavily deposed for all kind of cases.”

But Sussman says that, in some ways, the attorney general's office has already won the battle.

“In a way, they have succeeded, because I haven't been able to work on my Harper's piece in weeks,” Sussman said. “And the story is a little different than the one I started to write. I can't write about it without mentioning this situation, but I shouldn't have to personalize it to tell the story. It's an important story to tell, but I don't want it to get consumed by the sideshow.”