From the Fall 2001 issue of The News Media & The Law, page 29.
The Justice Department’s guidelines on issuing subpoenas to reporters don’t define who qualifies as a member of the news media. The department’s interpretation, at least as applied to Texas writer Vanessa Leggett, tracks the definition used in several states.
Thirty states and the District of Columbia have enacted shield laws that give journalists some protection against divulging confidential or unpublished information. Typically, those statutes define a journalist as someone who is employed by or connected with a newspaper, radio station or television station.
The state shield laws grant an extra statutory right for journalists who are covered by those statutes. However, people who do not come under the definition of “journalist” in state shield laws can make a First Amendment argument that their activities are constitutionally protected.
The First Amendment contains no definition of the press. But three U.S. courts of appeals — the Second, Third and Ninth Circuits — have defined who qualifies as a journalist, and the definition is broader than many state shield laws.
Those federal courts grant a reporter’s privilege if the person is engaged in investigative reporting, is gathering news and intends at the inception of the news-gathering process to disseminate the news to the public.
This criteria was established initially by the Second Circuit in New York in a subpoena controversy arising out of the wrongful death cases against Claus von Bulow. The children of his wife, Sunny, had alleged that he tried to kill her and left her in a coma. Andrea Reynolds, who was a friend of von Bulow and worked as an investigator for his defense team, was subpoenaed by attorneys for Sunny von Bulow’s children to turn over a draft of a book she was writing about the trial. She claimed the First Amendment protected her right as an author not to be forced to turn the material over. The Second Circuit found that a book author acting as a journalist should indeed be shielded from a subpoena, and established the criteria for determining when an author warranted the protection. But the court found that Reynolds was gathering information during the trial to help the defense, not to disseminate it to the public, so the privilege did not apply. (von Bulow v. von Bulow)
The U.S. Court of Appeals panel in Houston (5th Cir.), which upheld the contempt citation that sent Leggett to jail, never reached the question of whether Leggett was a journalist. However, the court said it would be guided by the same three-part test used by the three federal appeals courts if it had to address the issue.
Leggett fits the definition of someone who was gathering information with the intent to disseminate it, said Rep. Sheila Jackson Lee (D-Texas), who has asked Attorney General John Ashcroft to withdraw the subpoena and free Leggett.
“My understanding is Ms. Leggett’s intent was to do so by writing a book,” Jackson Lee said. — MD