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For a variety of reasons, media outlets resist challenging subpoenas From the Spring 2001 issue of The News Media &…

For a variety of reasons, media outlets resist challenging subpoenas

From the Spring 2001 issue of The News Media & The Law, page 45.

By Mysty Litman

When celebrations turn to chaos, a split second can transform a city street into a war zone. At recent events across the country, college students and partygoers became unruly mobs, setting fires and pummeling bystanders with debris. Some overturned cars and looted local stores. People caught in the throng suffered injuries. And in the aftermath, police attempted to apprehend the nameless suspects who became lost in a crowd.

Enter the press.

Journalists who cover incidents that call for a police investigation may hold the missing piece of the puzzle. Unpublished photos and unaired footage may aid the pursuit of suspects. Journalists have traditionally refused to release material because cooperating with authorities jeopardizes their independence.

At times, print and broadcast media voluntarily comply with requests. When news organizations receive subpoenas, some comply without a fight. Some news outlets have found innovative, albeit disturbing, ways to dodge complying with subpoenas by first disseminating sensitive material.

Agents of Discovery, a survey of subpoenas served on the news media in 1999, found examples that cover the spectrum between complete compliance and absolute resistance. While fewer media organizations that responded faced subpoenas in1999 than in 1997, those in the news business still attested to the hassles created by subpoenas.

Agents of Discovery, released by The Reporters Committee for Freedom of the Press in March 2001, is a compilation of 440 news outlets’ encounters with government agencies that sought the materials the laws work to protect.

From the streets of Seattle to a college town in Pennsylvania, from a newspaper’s photos to a reporter’s interview transcripts, news organizations present varied attitudes toward assisting police investigations or complying with subpoenas.

Mardi Gras Melee

Seattle’s Fat Tuesday celebration on Feb. 27 ended tragically when a rioter beat a man to death and hit others with a skateboard. The festivities, an annual tradition in the city’s Pioneer Square, yielded almost 70 injuries and more than 20 arrests. Three Seattle television stations assisted police by voluntarily submitting both aired and unaired footage of the uprising. KCPQ-TV provided approximately five minutes of footage, but refused to manipulate the video so police could more easily identify any suspects. KIRO-TV also handed over its footage, but did not have time to review the tapes for unaired material.

When police requested footage from KING-TV, the station complied only by submitting the material it had already broadcast. News Director Pat Costello explained that KING, along with two sister stations, reported live from Pioneer Square throughout the event. The hours of footage the police obtained was already in the public domain, Costello explained, unlike other Seattle stations.

“We avoided some of the problems that the other stations had,” Costello said.

But Costello said circumstances sometimes warrant cooperation with police and the other news outlets faced a tough decision whether to release unpublished material.

“Certainly, you could conjure up all kinds of situations where you’d really have to make some tough calls,” he said.

Costello avoided a tough call, but said the police seemed satisfied with the footage they received although they “would have loved to have gotten all of it.” He also said KING-TV is not in the practice of submitting raw video to law enforcement.

“Our policy is pretty clear that we do not supply unedited work product,” he said.

March Madness

Jim Frank, station manager of WTAJ-TV in Altoona, Pa., also faced a dilemma before giving police both aired and raw footage of a March 23 riot at Penn State University.

“It’s become a community problem,” said Frank of Penn State’s third uprising in three years. “Whatever role we can play in helping bring some justice, we do.”

WTAJ’s cameras caught the rioters’ antics, sparked by their team’s loss in the NCAA basketball tournament, on videotape. When police requested the footage, Frank obliged after conferring with his managers and bureau chief in State College, Pa., where the riot occurred.

The station’s role as a victim in the riot may have prompted the decision to assist the police as well, Frank said. During the chaos, students surrounded a WTAJ van and began kicking the vehicle, causing several hundred dollars worth of damage.

Frank said he had no reservations about assisting law enforcement in this instance, and did not see it as a threat to the station’s credibility.

“There are occasions when it does a greater good to work with them,” he said.

KOLD-TV in Tucson, Ariz., also plans to assist local police, although less willingly. Bob Smith, the station’s news director, said the station will comply with a subpoena it received for its file footage of an April 2 riot at the University of Arizona. This year’s loss in the NCAA basketball finals prompted approximately 2,000 people to pour onto the streets of Tucson.

The events at Penn State and the University of Arizona suggest a reliance on the news media for material that law enforcement couldn’t obtain otherwise. This perception may prompt news agencies to hand over tapes or photos rather than risk a lengthy court battle if law enforcement issues a subpoena.

Erwin Chemerinsky, a law professor at the University of Southern California, analyzed both sides of the issue.

“On the one hand, it’s troubling to see the media give material when it’s often not going to be legally imposed,” he said. “On the other hand, it’s also easy to understand why the media often don’t want to fight it out in litigation.”

But in some cases, law enforcement officers have other sources. Lt. Diane Conrad of the State College, Pa., police force said that in addition to news footage, their police officers rely on their own footage in order to make arrests.

So do other law enforcement agencies. After encountering similar uprisings at Purdue University in West Lafayette, Ind., and the University of Maryland in College Park, police in both states said they have taken matters into their own hands.

At Purdue, this marked the fourth riot in less than three years and West Lafayette Police Chief Dan Marvin said the police assigned people to take photos of the incident. Marvin added that the police have no plans to ask for news footage — at the moment.

“Certainly we would love to have anything that the media can give us, but we can’t just rely on the media and just assume or hope that we could get their footage,” Marvin said.

The police have asked the local media for riot footage before, Marvin said. However, the media refused to comply and the police eventually dropped the request.

In Maryland, Prince George’s County police Cpl. Tim Estes said police used undercover investigators to document the March 31 riot in College Park after the men’s basketball team also lost in the tournament. According to Estes, the police did not ask the media for their footage and used their own surveillance mostly for tactical purposes.

Nothing But ‘Net

The extreme circumstances of a riot can present the media with tough decisions afterwards. But just as important are the thousands of subpoenas served to the news media each year for published stories, interview notes, unpublished photos and unedited audio or videotape. Here, technology has created a blessing and a curse for the media. It is now possible to indirectly cooperate in investigations by posting on the Internet material collected while newsgathering. At the same time, the Internet allows news outlets to distribute more information. In Agents of Discovery, some members of the news media told of the ways in which they better served the public and simultaneously avoided the threat of a subpoena.

“The addition of the Internet really kind of changes a lot of rules,” said Walker Lundy, editor of the St. Paul Pioneer-Press in Minnesota.

For Lundy, the decision to publish 45 photos of apparent drug transactions on the newspaper’s Web site last September was easy. For one, Lundy said, the Internet allowed the newspaper to run all of the “interesting” photos that did not make it into the print editions. Second, Lundy said he knew running the photos made the threat of a possible subpoena a “non-issue.”

“We don’t want anybody outside of the paper, particularly the government, to be rooting through negatives and pictures that we haven’t published,” he said, adding that the Internet provides an easy way to expand publication.

Although the newspaper was never served with a subpoena for the photos, Lundy said he had no qualms about the action.

“I would be a little uncomfortable if someone threatened us with a subpoena and then we published them,” Lundy said.

Other news agencies do not hold the same philosophy. KBJR-TV in Duluth, Minn., was threatened with a subpoena for a transcript of a phone interview with a prison inmate. In response, the station published the entire text of the interview on its Web site.

“We saw no reason to withhold any of the interview,” said David Jensch, the station’s news director. “We were able to stand by our journalistic ethics and still comply with the law.”

The act also saved the station from a potential legal battle, a benefit for media with budget concerns. But according to Chemerinsky, a media outlet may choose not to fight a subpoena for reasons other than the cost factor, particularly if the battle occurs in a federal court or in a state without a good shield law. This fear of making “bad law” may prompt news agencies to resort to other alternatives.

In addition, Chemerinsky said the general prospect of losing may dissuade the media from going to court. When evaluating the chances of winning, sometimes the media determine that the chances “just aren’t enough to justify the fight,” he said.

NBC faced such a prospect while Michael Gartner was president of NBC News. In the Agents of Discovery survey, Gartner suggested that there are ways around compliance.

When prosecutors subpoenaed a videotape of news footage for a story about police tactics, Gartner transmitted it to an affiliate station after being advised by network attorneys that the network would lose if it went to court.

“It was my idea to ‘publish’ so that we wouldn’t be setting bad precedent by turning over ‘unpublished’ material,” Gartner said.

Why Fight?

While subpoenas are undoubtedly costly and time consuming for news organizations to battle, especially when alternatives seem easier, an editor for a community newspaper in Indiana said the fight was worth it. Although the Daily Gazette in Sterling, Ind., lost its battle to quash a subpoena for an interview transcript and reporter’s notes, Executive Editor Jonie Larson said the newspaper vowed to fight the subpoena, the second one it had ever received.

The story that sparked the court dispute occurred when a man accused of helping his girlfriend murder her newborn granted the Daily Gazette an exclusive interview. In March, a court forced the newspaper to release the subpoenaed material. Instead, the newspaper published the entire transcript of the interview before turning the items over to the court.

“By printing the transcript prior to delivering it, we thought we were reinforcing our commitment to the First Amendment,” Larson said, adding that printing the transcript in full gave everyone equal access at the same time.

In an editorial that accompanied the transcript and the original article, the newspaper restated the reason why states have laws to protect journalists.

“Information gathered by a newspaper but not published in the paper should not be revealed unless absolutely necessary to prove a point in court and only if the attorney has no other sources for that information,” the front page editorial read.

For the Daily Gazette, the lost battle cost the small community paper over $2,000 in legal fees. But for Larson, “it was money well spent.”