Journalists successfully exercise privilege in courts

From the Spring 2001 issue of The News Media & The Law, page 47.

Attorneys successfully quashed subpoenas in two notable cases involving news reporters, but a federal judge in Tacoma, Wash., forced a Wired News reporter to testify at trial based on a subpoena approved by Attorney General John Ashcroft.

Montana student covered by shield law

A state trial judge on March 9 dismissed a subpoena issued to a student journalist who had videotaped disturbances between protestors and police at a Hell’s Angels gathering in Missoula, Mont., in July 2000 (See NM&L, Winter 2001).

Judge Douglas Harkin ruled the “shield law affords absolute immunity to those who qualify for its protection.” The court took a “broad view of the protection granted by” the shield law.

Harkin ruled that Linda Tracy, a student at the University of Montana, qualified for shield law protection, despite a prosecutor’s claim that she was not entitled to use the shield law because she was not employed by a news media outlet. Additionally, the prosecutor, Missoula deputy attorney Gary Henricks, argued Tracy was not a journalist because she used the video documentary for class credit only after she was unable to complete a separate project. Tracy also owns a video business, Turtle Majik Productions, but Henricks argued that her state business application makes no mention of investigative journalism as its business purpose.

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 at a local video store.

The court determined that Tracy was gathering footage with an intent “to sell or give the video footage to commercial or public new agencies, television stations, or community antenna television services. Her stated intention is supported by her work with her own business, Turtle Majik Productions, her prior record of similar activities with various news entities, and her subsequent actions in connection with showing and editing the footage.”

The court refused to answer whether Tracy was protected under the shield law “solely by virtue of her status as a student at the University of Montana.”

Reporter mum on arsonist’s identity

A Phoenix reporter will not be compelled to reveal the identity of a self-proclaimed serial arsonist after a judge on Feb. 27 granted the newspaper’s motion to quash a grand jury subpoena.

Maricopa County Superior Court Judge Frank Galati found that Phoenix New Times reporter James Hibberd was protected by the state shield law, but noted that he did not condone the reporter’s actions or the paper’s decision not to contact authorities after an exclusive interview in mid-January with a purported arsonist.

In a phone interview, New Times attorney Mike Meehan said he was satisfied with the decision. “Obviously we believe the judge correctly applied the shield law,” he said.

Meehan said the prosecution presented “a novel argument that in the face of a shield law, which is pretty broad, that you could make an exception for anyone who could be a perpetrator of a crime.” Deputy County Attorney Paul McMurdie unsuccessfully argued that the arsonist did not qualify as a confidential source because a crime was committed.

Hibberd also did not have to release any materials he used during the newsgathering process, including a tape-recorded phone conversation with the alleged arsonist, computer disks, or any items that may lead authorities to a group claiming responsibility for the torching of nine luxury homes in the Phoenix Mountains Preserve. The prosecutor had asked that such materials be turned over.

Hibberd and the New Times entered the controversy after the weekly magazine received an anonymous letter, titled “Thou Shall Not Desecrate God’s Creation,” from the arsonist, who did not reveal his identity, on Jan. 12. A week later, the paper printed a note on its cover telling “Thou Shall Not” to call the newspaper. After the paper received numerous calls inquiring about the cryptic message, the professed arsonist finally contacted Hibberd for an interview.

Wearing a disguise to meet the reporter, the man told Hibberd that his group of mountain biker “eco-defenders” set the fires to discourage development in the area.

Online reporter loses subpoena battle

Wired News reporter Declan McCullagh was forced to testify in a federal criminal case in Tacoma, Wash., on April 2 after U.S. District Court Judge Jack Tanner refused to quash a subpoena issued to the journalist.

At the trial, McCullagh confirmed that he was the author of two articles involving the defendant James Bell and said he believed the articles were accurate. McCullagh said he respectfully declined to answer about six more questions, exercising his First Amendment privilege as a journalist.

Tanner “did not order me to answer questions from either the prosecution or defense, so I was not held in contempt,” McCullagh said. “I was prepared to refuse to answer those questions, but fortunately I didn’t have to go that route.”

McCullagh was subpoenaed on March 8 by the Department of Justice, an action approved by Attorney General John Ashcroft. McCullagh had previously written about the case and interviewed the defendant for Wired. The subpoena called for McCullagh to testify about the articles he had written.

“As a general rule, I do not believe it is desirable for journalists to disclose information or interviews that were gathered or performed for news purposes,” McCullagh said in an e-mail message to an Internet mailing list of politics and technology that he moderates.

Bell is a so-called “cypherpunk,” which one Internet dictionary defines as “someone interested in the uses of encryption via electronic ciphers for enhancing personal privacy and guarding against tyranny by centralized, authoritarian power structures, especially government.”

In April 2000, McCullagh wrote how Bell, who was then about to be released from prison for tax evasion, planned to exact revenge on federal officers through a plan called “Assassination Politics.” In the article, McCullagh described how Bell’s plan involved using digital cash and anonymity to predict and confirm assassinations.

In November 2000, McCullagh wrote two Wired articles about a search of Bell’s house by federal agents. Bell was subsequently charged with stalking and intimidating the family of an IRS agent. Bell was convicted by the Tacoma jury on April 10 of two counts of stalking government agents; one count involved sending a fax letter to a government agent, the other count was for crossing a state line with an intent to harass.

U.S. Attorney Robb London claimed McCullagh’s testimony was necessary because federal rules of evidence do not allow the introduction of statements contained in news articles without the author testifying as to their validity.

“We’re only interested in having you testify about statements of his that you published,” London wrote to McCullagh on March 9. According to federal regulations, Department of Justice employees must obtain permission from the attorney general before subpoenaing a member of the news media. Generally, they must exhaust alternative sources for information before doing so. After Ashcroft approved the subpoena, London wrote to McCullagh. “If your subpoena could have been avoided, it would have been,” London said.

McCullagh said neither party objected to his coverage of the trial as a reporter so he was not excluded from the courtroom.

“That’s another reason why reporters shouldn’t testify: It prevents them from doing their job, and allows either side to prevent critical press coverage,” he said. — DB, ML