Poor police work no excuse for stripping journalists of rights
Commentary
By Douglas Lee
Special to freedomforum.org
11.02.00
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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.
Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Badger & Lee and a legal correspondent for the First Amendment Center.
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