We at the Reporters Committee for Freedom of the Press knew if we waited long enough for a horror story to make the case for a strong reporter's privilege, we'd get a doozy. Just in time for the final installment of Agents of Discovery, a federal judge in Texas threw a young freelance book author in jail for a record-breaking 168 days. Vanessa Leggett refused to identify confidential sources for a book she is writing about a notorious Houston murder and paid the price by serving time in 2001 in a federal prison for contempt of court. Details of her remarkable case are featured in this report.

The Reporters Committee for Freedom of the Press launched its first survey documenting the incidence of subpoenas served on the news media in 1990. We collected data from print and broadcast news operations throughout the United States, hoping to demonstrate that journalists are, indeed, "differently situated" from other targets of discovery, and that the negative impact of subpoenas on newsgathering and dissemination was substantial. The 2003 report (compiling data from subpoenas in 2001) is our sixth.

We produced our first five reports in 1991, 1993, 1995, 1999 and 2001. These Agents of Discovery reports frequently were introduced into evidence or appended to legal briefs and motions seeking to quash subpoenas. They persuaded legislators in several states to enact or enhance journalists' shield laws. And they outlined practical solutions for newsroom executives overwhelmed by expensive, time-consuming subpoenas based on the experiences of their colleagues.

Despite efforts to create or improve shield laws in several states in the late 1990s, the reporter's privilege is still on shaky ground in many states. Several disturbing trends have surfaced. For example, media outlets are broadcasting and printing footage, outtakes and notes (usually on the Internet) so that when the material is subpoenaed they can claim they are handing over material that has already been published. In some states, courts have issued "separation orders," which prevent journalists who have covered court stories from covering the actual trial because they may be called as witnesses. And, perhaps most disturbing of all, some television newsrooms are discarding outtakes within 24 hours so there is nothing available when the process server shows up at the reception desk.

Many judges believe a subpoena served on a news organization is no different from that served on any other business. 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. On the other hand, survey respondents report that they were successful more than 75 percent of the time in 2001 when they sought to get a subpoena quashed. Newsrooms managers who were successful in getting the subpoenas quashed strongly recommend taking legal action whenever a subpoena is served.

There has been some progress. Survey responses show, for example, the average number of subpoenas received by all respondents was 2.6 in 2001. This represents a decline from the 1991 survey, which found that respondents received an average of 3.0 subpoenas. The average number of subpoenas per respondent in 1997 was 4.6.

Broadcasters continued to receive more subpoenas than newspapers in 2001. The average number of subpoenas served on television news stations was 7.7. The average number served on newspapers was 0.7. Lawyers for television journalists say that many litigators incorrectly believe that videotaped evidence, or evidence presented by a famous local television reporter, is more persuasive to a jury than more "ordinary" evidence.

We hope that this reports will help to educate and inform judges of the very real consequences and costs of permitting subpoenas to be served indiscriminately on the news media.

The Reporters Committee is grateful to the John S. and James L. Knight Foundation for underwriting this national survey in 1997, 1999 and 2001.

This report was produced through the hard work of several members of the Reporters Committee staff. We acknowledge especially Wendy Tannenbaum, 2002-2003 legal fellow, who drafted the report and compiled most of the data. Legal Defense Director Gregg Leslie supervised the data collection and reporting and produced the report. Victor Gaberman, Maria Gowen and Lois Lloyd, with special help from the entire Reporters Committee staff, provided administrative support.

We also express our appreciation to the journalists and lawyers whose assistance made Agents of Discovery possible.

Lucy A. Dalglish, Esq.
Executive Director
The Reporters Committee
for Freedom of the Press
May 2003