Fewer media organizations face subpoenas

A survey by the Reporters Committee set for release in March indicates newsrooms have fewer requests for documents than two years ago

From the Winter 2001 issue of The News Media & The Law, page 20.

By Dan Bischof

The number of subpoenas media organizations received in 1999 fell to an average of three per outlet, down from 4.6 in 1997, according to a survey by the Reporters Committee for Freedom of the Press. But journalists around the country still found subpoenas for their work product burdensome.

“It’s a pain!” a California television station news manager who asked to remain anonymous said in one survey response. “The defense is usually ‘fishing’ and the prosecution wants evidence.”

As in previous years, subpoenas sent to broadcasters represented the heavy majority of subpoenas received. Of the 1,326 subpoenas that were reported by media outlets, broadcasters received 71 percent (936) and print organizations 29 percent (390), despite the fact that print respondents outnumbered broadcaster respondents three to one. Newspapers averaged 1.2 subpoenas per outlet, and television stations reported 8.4 subpoenas per outlet.

Explanations vary for why broadcast subpoenas so outpace print subpoenas.

“For trial lawyers, video is more compelling,” Maine media attorney Jonathan S. Piper said. “They want to use the best evidence, the most compelling evidence.”

“The immediacy of electronic media and the fact that you have a talking head compounds the libel plaintiff and the zealous prosecutor thinking that these new sources have more to tell,” Alan Neigher, counsel for both print and broadcast media in Connecticut, said.

Some suggest that subpoenaing lawyers may view the content of print and broadcast differently.

“For the broadcast subpoenas, lawyers generally don’t think there’s any information you have aside from what was published,” Miami media attorney Sanford Bohrer said. “I think there’s a qualitative analysis that goes on that makes them look at print and broadcast differently. The broadcast person, they believe everything is on tape; if you have the tape, that’s it.”

Others suggest that those media organizations that contest subpoenas most vigorously are less likely to receive subpoenas in the future. Of the broadcasters’ 936 subpoenas, 657 (70 percent) were complied with fully without contest. Newspapers only complied with 84 subpoenas of the subpoenas served on them (22 percent) without contest.

But this explanation may be doubtful because broadcasters receive a higher number of subpoenas for material which has already been broadcast, a category that outlets often do not feel compelled to contest. Of the broadcaster subpoenas, 740 (79 percent) asked for — at least in part — material that was already broadcast. Of the newspapers, only 63 percent of the subpoenas asked for material already published.

“Of those we complied with, all were seeking materials that had already been broadcast,” WXYZ-TV of Southfield, Mich., reported.

The survey, Agents of Discovery, will be released in early March. A questionnaire sent to media organizations asked them to report the number of subpoenas received in 1999 and how those subpoenas were resolved. The Reporters Committee sent 2,321 survey requests to television stations and newspapers, and received 440 responses, for a 19 percent response rate. The response rate for the 1997 survey was 29 percent.

The biennial survey began in 1990 in an effort to document the negative impact of increasing numbers of subpoenas on the media. The survey report was sent to media outlets and attorneys, which then used it as empirical proof of the uneven way in which media organizations were being subpoenaed, often as a discovery tool by attorneys in cases the media covered.

The 440 respondents reported being served with 1,326 subpoenas. The highest number of subpoenas reported by an outlet was 50, which was reported by two television stations, both of which asked that their identity be kept anonymous.

Of those respondents who reported receiving at least one subpoena, the average number during the entire year was 6.6. In 1997, the average number was 8.4. Nearly half of all the respondents, 46 percent, received at least one subpoena.

Less than half of the reported subpoenas — 44 percent — were challenged, either by convincing an attorney to withdraw the subpoena or attempting to quash it in court. Of the challenged subpoenas, 78 percent were quashed, an increase of 4 percent from 1997.

“If agencies know you fight back hard and well, they’re less likely to go after you,” said Thomas Kearney, the executive editor of The Keene (N.H.) Sentinel.

Many of the respondents said responding to the subpoenas required a considerable amount of time.

“I assume lawyers learn quickly to use news gatherers as their fact chasers,” Huntsville, Alabama’s WHNT-TV Managing Editor Bob Knowles said in another response. Responding to subpoenas “is like busy work we must do under court order. Subpoena compliance is not a function of putting news on the air!”

“While most of our subpoenas only seek broadcast material, some of those have been huge time wasters,” Paul Conti of WNYT-TV in Albany, N.Y said. “The average subpoena takes us a couple of hours to handle with two people. About six took several days and several people because they wanted many years worth of materials.”

The most surprising change from 1997 seems to be the fewer number of subpoenas issued in non-shield law states. Shield law states averaged 3.4 subpoenas per media outlet in 1999, down from 4.7 two years earlier. Non-shield law states averaged 2.3 subpoenas, a drop from the 4.3 subpoenas per media outlet in 1997.

The decrease is noteworthy because the aim of a shield law is to protect journalists from the subpoena power. However, the states with a statute in place appear to need greater protection.

Moreover, the responses from media organizations suggest that shield laws made little difference in 1999 in whether a subpoena was quashed. The quash rate for shield law states was 28 percent, compared to 29 percent in non-shield law states.

However, several respondents in shield law states expressed how their shield law benefitted them. Conversely, respondents in non-shield law states indicated they believed that having a shield law would decrease the number of subpoenas they receive.

“Maine suffers from the absence of a shield law, an appeals court with little interest in any constitutional or common law privileges and a bar that could care less about the press,” one respondent said.

“Tennessee has a strong shield law which can usually be asserted to force the party requesting information to give up,” WKRN-TV’s Matthew Zelkind said.

Further, a shield law introduced in Florida in 1998 and an amended shield law in Minnesota appear to have deterred parties from serving subpoenas on the media in those states.

In Florida, the average number of subpoenas per respondent was 8.1 in 1997. That number fell to 4.0 in 1999. Largely in response to the contempt issuance and jailing of a Miami Herald reporter in 1996, the Florida legislature passed the “Journalist’s Privilege” bill in 1998.

“Florida obtained a shield law [by] 1999,” one Florida newspaper respondent said. “That may explain why we received no subpoenas in 1999.”

The law created a qualified privilege allowing “professional journalists” to refuse to disclose all information, including the identities of sources, obtained while actively gathering news. The privilege can be overcome and journalists compelled to testify only if the information sought is relevant to a legal proceeding, there is no alternative source for the information, and there is a compelling need for disclosure.

In Minnesota, the average number of subpoenas per respondent fell to 1.0 in 1999 from 3.4 in 1997. Minnesota’s shield law was amended in 1998 to establish the scope of its protection more precisely after court decisions had narrowed it. Under the amended law, disclosure is only warranted in certain criminal cases, and no provision is made for disclosure in civil cases other than for defamation suits.

Also under the amended version of the law, unpublished notes, photographs and unaired videotape are explicitly protected by the qualified privilege. Before the amendments, the state Supreme Court held that unpublished photographs are not protected by either the state or federal constitutions, and that reporters who witness criminal acts can be compelled to testify about them or turn over photographs of the incident.