Wis. judge denies Justice Department's request to subpoena journalists

Lilly Chapa | Reporter's Privilege | News | November 30, 2012

In the first ruling under Wisconsin’s new shield law, a judge denied the state Department of Justice’s request to subpoena three journalists who reported on a farmer’s alleged criminal conduct .

The justice department was unable to show that the information they seek is unobtainable from other sources, as required by the 2010 law, said Sauk County Judge Guy Reynolds. But Reynolds, who ruled from the bench Thursday, added that he would reconsider the subpoenas if the state's other witnesses contradict the journalists' reports.

“[Reynolds] followed the shield law to the letter,” said Drew Shenkman, who represented one of the journalists. Shenkman argued that the state could obtain the same information from non-journalists.

The department is seeking information from Capital Times reporter Jessica VanEgeren, WISC-TV reporter Marc Lovicott and WMTV reporter Chris Woodward about dairy farmer Vernon Hershberger, who was charged with four misdemeanors involving the illegal sale of unpasteurized milk.

The journalists in 2010 reported on Hershberger’s defiance of the Wisconsin Department of Agriculture’s order to cease selling raw milk products. The department said Hershberger was operating without a license, but the farmer continued selling products to his customers, claiming that he didn’t need a license because store members leased his animals and were therefore partial owners of the products they bought.

Shenkman said the justice department wanted to know what the journalists observed while reporting on Hershberger’s violation of the order, including whether they saw people buying and selling raw milk products or breaking the seals the Department of Agriculture had placed on Hershberger’s products.

Shenkman noted that many other people were present: “You could see them on WMTV’s newscast, and there was even a person who was named and quoted, and the state didn’t try to get in touch with him.”

Wisconsin’s shield law was enacted in 2010 by then-Gov. Jim Doyle. The statute provides journalists with a qualified privilege to protect unpublished newsgathering information from disclosure. Anyone requesting a subpoena must prove that the information sought is highly relevant and necessary, is not obtainable from any other sources and that disclosure is in the overriding public interest.

“Wisconsin’s shield law is very strong,” Shenkman said. “It’s a bit unusual because subpoena requests have to go through the court to be approved. In most states journalists are subpoenaed and they have to take it to a judge to contest it. That’s just another way it protects journalists.”