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Journalism student fights city’s subpoena for videotape

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  1. Protecting Sources and Materials

    NMU         MONTANA         Confidentiality/Privilege         Nov 3, 2000    

Journalism student fights city’s subpoena for videotape

  • A woman documented clashes between police and protestors at a Hell’s Angels summer rally, and now, the police want all of the raw footage for an investigation.

A University of Montana journalism student is trying to quash a subpoena for video recordings of disturbances between protestors and police at a Hell’s Angels gathering in July. A city attorney subpoenaed Linda Tracy’s footage as part of an investigation into the incident.

In a motion to dismiss the subpoena on Oct. 11, the student’s attorney Rick Sherwood said the state shield law and First Amendment protect the tapes from release. In an affidavit, Tracy claimed that if she were “seen as an agent, even a reluctant one, for gathering material that can be seized by the government,” then her sources would “dry up.”

Tracy edited video she and others recorded of police clashing with protesters and onlookers at a Hell’s Angels gathering. Her documentary, entitled “Missoula, Montana,” was shown to groups concerned that police had overreacted. Tracy also made her documentary available for free rentals at a local video store. She later received class credit for producing the documentary.

“The principle of this case is very starkly presented about the importance of a journalist’s underlying sources and source material,” Sherwood said. “The alternative to quashing it is letting the government become an editor over the shoulder of journalists doing the news.”

Tracy said she intended to provide a more in-depth look at the incidents than would be possible on the evening newscast. She used 20 minutes of the nearly 2 hours of footage available.

The city began distributing copies of the documentary, without permission, as part of a compilation of videos dealing with the same incidents. Through a university attorney, Tracy demanded the city stop copying and distributing the documentary. Tracy declined to give permission even when asked by the mayor.

“I totally felt like (the subpoena) was a fishing expedition,” Tracy said. “And I also felt like it was a form of intimidation. They got mad at me, so they tried to put me in jail.”

“If I have already been proven willing to turn over raw footage to the police department, the next time I go out to do a video of a group that might be really sensitive to the media, they’re not going to trust me,” Tracy said. “To me, that’s the most important thing.”

Gary Henricks, a city attorney in Missoula, said he could not recall when he first became aware that Tracy had more raw footage, but denied having any contact with the mayor’s office about Tracy’s tapes before the subpoena was issued.

In his objection to Tracy’s motion to dismiss, Henricks alleged that Tracy was not a journalist and therefore not entitled to journalistic protections. This position motivated local journalists to support her cause. The local chapter of the Society of Professional Journalists donated $1,000 to Tracy’s defense.

Henricks said the Montana shield law was not so broad as to cover Tracy. In addition to arguing that Tracy was a student and not employed by any news media outlet, Henricks pointed out that Tracy used the video documentary for class credit only after she was unable to complete a separate pre-assigned project. Tracy also owns a video business, “Turtle Majik Productions,” but Henricks mentioned that her state business application makes no mention of investigative journalism as its business purpose.

“My idea of a journalist is somebody who recognizes a newsworthy event and documents it and disseminates it out to public,” Tracy said. “I think documentarians are as much journalists as news reporters.”

“At SPJ, we’d almost say there is no set definition for what makes a journalist because once you start defining them, we feel that opens the door to certain restrictions based on the definition,” said Ian Marquand, chair of the SPJ Freedom of Information committee. “As vague as it may sound, I know a journalist when I see one based on the function they perform and based on why they do what they do and what the nature of their work is.”

Sherwood said he will reply to the city’s objections in early November. The local judge will then determine if oral arguments are necessary.

(Montana v. Known and Unknown; Media Counsel: Rick Sherwood, Reynolds, Motl and Sherwood, Helena, Mont.) DB

© 2000 The Reporters Committee for Freedom of the Press

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