From the Fall 2002 issue of The News Media & The Law, page 17.
By Wendy Tannenbaum
Key evidence in the case against John Walker Lindh, the American sentenced in October for supplying services to Taliban forces, included a videotape of Lindh being interviewed by a freelancer working for CNN.
No one at CNN will confirm it, but there is speculation that CNN handed the tape over to the government without waiting for a subpoena for the footage. CNN may have aired the entire videotape, including what normally would have been “outtakes,” so that it would no longer be “non-published” work product and could be given to authorities immediately.
Other unbroadcast media footage also may be in the hands of government officials, although instances of media cooperation with government are hard to track down. News media organizations that offer tape and other unpublished materials to government do so behind closed doors, presumably to avoid giving the impression that they are working too closely with the government, and have been unwilling to offer examples of cooperation.
Yet some media attorneys suspect that news organizations, particularly television media, are more forthcoming with their unpublished investigative materials than they were before the War on Rerrorism began.
Media lawyer Eve Burton, who has served as in-house counsel for CNN and The Daily News in New York, now teaches at the Columbia University School of Journalism and will soon begin working as general counsel for Hearst. In her view, patriotism is the main factor driving news organizations to cooperate with government officials. Members of the media have been more willing to participate in government investigations recently because they believe their journalistic work may aid in the War on Terrorism, Burton suggested.
And the cooperation goes beyond responding to subpoenas.
“Major news organizations have been more willing [since September 11] to provide documents to the government without a subpoena and sometimes without even being asked,” Burton said. This is particularly the case with video and documentation obtained through international reporting, she says.
Media organizations apparently have given up unpublished information and footage despite the protection of “reporters privilege” laws, which exist in most states. The reporters privilege allows the press to resist handing over unpublished material to grand juries and to parties in court proceedings, unless the material sought is essential to the proceeding and cannot be obtained from other sources.
Burton agreed there’s a risk that the privilege reporters have fought so hard for might erode if it is not asserted every time a newsperson is subpoenaed. A judge may refuse a journalist’s claim of privilege in one case because the journalist willingly turned over materials in response to another subpoena and was not, therefore, consistent in her use of the privilege.
Ronald E. Bush, a media attorney in Idaho, cautions his clients to resist requests for unpublished material whenever possible.
“The reporter’s privilege is a dog that Idaho courts love to kick,” Bush says, “so my advice to all of my media clients is always that they need to be consistent.” He fears that “any favoritism or inconsistency threatens [his clients’] ability to assert the privilege in circumstances where they feel it is critically important.”
Some media organizations get around the need to assert the reporters privilege by dumping what would be otherwise unpublished materials onto their Web sites. By posting video or other materials on the Internet, the media company puts the information into the public arena and has no need to claim a privilege.
This tactic was employed recently in Florida, where The Orlando Sentinal decided to post the tape and transcript of a killer’s confession on its Web site, after prosecutors and defense attorneys in the murder case demanded the material.
It is difficult to collect examples of judges actually holding willing compliance with subpoenas against journalists, particularly because comments from the court on the topic often come spontaneously from the bench, rather than in court documents. Nevertheless, a couple of reported court opinions show that it does happen.
In a reporters privilege case in 1998, the Supreme Court of Florida noted in an important opinion that “there are instances where reporters do testify without raising the privilege.” The court, unhappy with journalists’ practice of picking and choosing when they would claim the privilege and when they wouldn’t, sent a warning to the media: “In evaluating these concerns, we emphasize that it is the court and not the reporter or the reporter’s publisher that determines whether the privilege acts to preclude disclosure.” (State v. Davis)
In an earlier opinion out of the Court of Appeals of Michigan, a judge showed similar disdain for a media company’s inconsistent practices with respect to releasing photographs. The court refused to quash a subpoena from an insurance company for photographs taken by The Ann Arbor News. The decision was based in part on the fact that the paper had never claimed a privilege before and had, until that case, been generous and forthcoming with unpublished photographs. (Marketos v. American Employers Ins. Co.)
George Freeman, counsel for The New York Times, denied that the media’s practice of fighting subpoenas has changed since September 11. He said any cooperation provided by the news organizations in the immediate aftermath of the attacks has since died down. The Times, which does not produce video footage, has not received many terrorism-related subpoenas, according to Freeman.
The bottom line, Burton said, is that media organizations need to be consistent. News executives should think things through, she said, and decide what their policy will be in the face of various types of subpoenas, particularly those from the government.
The fear, as Burton pointed out, is not so much that judges will ignore or change privilege laws, but that the news media will begin to be seen as an investigative arm of government, not as a neutral watchdog.