Underlying the news media's resistance to subpoenas is a fear that providing information in response to subpoenas, especially when those subpoenas come from government sources, interferes with their ability to function as independent newsgatherers.

"We train reporters/line editors to be constantly vigilant to lawyers/subjects of stories asking about stories which may trigger subpoenas. We ask they report all such conversations," said Frank Gibson of The Tennessean in Nashville. "When a subpoena seems likely, we ask lawyers to negotiate ways to avoid being used by prosecutors or litigants."

In its friend-of-the-court brief arguing that book author Vanessa Leggett should be entitled to a legal privilege allowing her to refrain from testifying before a grand jury in 2001, The Reporters Committee for Freedom of the Press wrote: "Absent this protection, the press will be reduced to an investigative arm of prosecutors, police, criminal defendants, and civil litigants, resulting in a severe chilling of the flow of information to the public. It is this public need for information that should be at the center of this debate, particularly with respect to confidential sources and information."8

The "investigative arm" analogy is not new. In 1972, in the U.S. Supreme Court's watershed reporter's privilege case Branzburg v. Hayes, Justice Byron White, in his concurrence, made sure to point out: "[w]e do not hold . . . that state and federal authorities are free to annex the news media as an investigative arm of the government."9

The court hearing Leggett's case took a narrow view of the privilege and said journalists have an obligation to help the government prosecute crimes. Many in the news media disagree and, like most respondents to the 2001 survey, resist all requests for unpublished or nonbroadcast newsgathering information.

Some efforts to remain independent are successful, while others are not. Another newsgatherer in Texas recalled having spent considerable time "haggling with [a] prosecutor" over a particular subpoena. "We opposed being used as part of their investigation," reported the publication's editor, but ultimately a motion to quash was defeated.