In 2001, freelance book author Vanessa Leggett broke a record she never aspired to challenge. Serving what would turn out to be a 168-day prison term, she became the longest-jailed journalist in U.S. history held for refusing to disclose a confidential source.

Leggett chose to go to prison rather than comply with a subpoena from a federal grand jury. She had claimed that a reporter's privilege protected her from having to disclose her confidential sources for a book she was writing about a murder case in Texas. After a U.S. District Court judge and an appeals court ordered her to disclose her interviews or go to jail, Leggett stood her ground and turned herself in to prison officials.

"I just feel like I'm doing what I have to do to protect my First Amendment right to freedom of the press," Leggett told an Associated Press reporter on her way to jail. "I feel like what they are doing is wrong."

After her release almost six months later, Leggett said she would be more than willing to go back to jail if she were subpoenaed again.

"If that's what it takes, that's what it takes. This is not so much about me. It's about the public's right to a free and independent press."

Subpoenas to journalists by government and other litigants rarely result in jail time. Vanessa Leggett's ordeal made national news for being the first time in 30 years that a journalist had spend any significant amount of time behind bars for refusing to comply with a subpoena.

Yet the practice of subpoenaing journalists creates problems besides the threat of jail. Compliance with subpoenas endangers the freedom of the press. Each time the press is forced to provide evidence to prosecutors, police, criminal defendants or civil litigants, the media's neutral status is compromised, and the free flow of information to the public is chilled.

Moreover, as many managing editors and news archivists will attest, subpoenas to news organizations are burdensome and time consuming, often eating up valuable resources that should be used to gather and disseminate news.

In a friend-of-the-court brief submitted to the U.S. Court of Appeals in New Orleans (5th Cir.) in Leggett's case, The Reporters Committee for Freedom of the Press and other media organizations argued that news organizations should be free from "the threat of administrative and judicial intrusion into the newsgathering and editorial process; the disadvantage of a journalist appearing to be an investigative arm of the judicial system or a research tool of government or of a private party; the disincentive to compile and preserve nonbroadcast material; and the burden on journalists' time and resources in responding to subpoenas."1

When it rejected Leggett's appeal in August 2001, the appellate court issued an opinion that made no mention of the burden subpoenas impose on news organizations.2

Other courts have been similarly unwilling to acknowledge the enormity of harm that results from media subpoenas. In 1998, a panel of the U.S. Court of Appeals in New York City (2nd Cir.) rejected assertions that subpoenaing the media has deleterious effects on the newsgathering process because those assertions were supported by "no persuasive argument, much less any appealing evidence."3 The U.S. Supreme Court's 1972 landmark opinion in the case Branzburg v. Hayes noted that "[e]stimates of the inhibiting effect of such subpoenas . . . are widely divergent and to a great extent speculative."4

The Reporters Committee for Freedom of the Press, with the assistance of news outlets around the country, has taken on the task of documenting the burden these subpoenas to satisfy the demand for empirical evidence from judges faced with subpoena challenges.

Taken together with the previous editions of Agents of Discovery — which surveyed the news media on the same topic in two three-part studies, one covering the years 1989, 1991, and 1993, and the second covering 1997, 1999 and now 2001 — this is the only current, major study of the incidence of subpoenas issued against news organizations. The last similar national study of this type was published in 1971 by former University of Michigan law professor Vincent Blasi.5

The 319 journalists and media attorneys who provided data for this report represent print and television news outlets from all over the country. All together, they received 823 subpoenas in 2001. The managing editors and news directors who replied to the survey almost unanimously agreed that responding to subpoenas from investigators and litigants is a burdensome, and often aggravating, task. Each subpoena drains time and money from a news organization's budget — resources that should be spent on newsgathering. Some subpoenas require expenditures for legal fees, which can mount if an attorney needs to go to court to protect a news organization's press freedoms. Even the simplest subpoena requires the time and attention from a staff person who can discuss the matter with the subpoenaing attorney or locate and dub a videotape.

Some news outlets, in an effort to limit the flow of subpoenas, have developed policies and strategies for avoiding unnecessary requests. Several surveyed newsrooms reported the institution of policies to destroy raw footage or reporters' notes, remove reporters from coverage of an event, notify confidential sources that confidentiality might be compromised in the face of a subpoena, or prohibit the use of confidential sources altogether. The fact that newsrooms are forced, by the threat of overburdensome subpoenas, to modify their newsgathering processes in this manner represents an intrusion on their First Amendment right to gather and disseminate the news. Editorial freedom is lost when newsgatherers destroy or avoid valuable reporting for fear of compelled disclosure.

The subpoenas issued against journalists vary in scope and originate from a variety of sources. A subpoena might request anything from a published article or previously broadcast story to the disclosure of a confidential source. The majority of subpoenas are issued by criminal prosecutors and defense counsel, but many subpoenas also are issued by private litigants in civil lawsuits.

News organizations that want to fight subpoenas often file motions asking courts to "quash" them. A state's case law, the First Amendment, a state constitution, or a state shield law might provide the grounds for such challenges. The news media often invoke these sources for a "privilege" that will defeat any legal obligation to comply with subpoenas. Journalists and attorneys interested in learning the contours of their own state's privilege should take advantage of the Reporters Committee's new Reporter's Privilege Compendium, available online at www.rcfp.org/privilege. The compendium provides comprehensive guides, compiled by media lawyers in each state and every federal jurisdiction, to responding to and fighting against newsroom subpoenas.

Journalists object to subpoenas because they want to maintain their independence from government or from a particular side in a dispute. They worry that willing compliance with subpoenas will turn them into "investigative arms" of prosecutors, police, criminal defendants and civil litigants. This study documents the events that fuel such fears and the burden subpoenas place on the news media.