Student journalist fighting prosecutor’s subpoena

From the Winter 2001 issue of The News Media & The Law, page 22.

A University of Montana journalism student is trying to quash a Missoula city subpoena for videos she recorded of protester-police disturbances surrounding a Hell’s Angels gathering in July 2000. The city subpoenaed Linda Tracy’s video footage as part of its investigation into the incident. The trial judge ordered a hearing to determine whether Tracy qualifies under the Montana shield law for protection of her unaired footage.

“The principal of this case is very starkly presented about the importance of a journalist’s underlying sources and source material,” Rick Sherwood, Tracy’s attorney, said. “The alternative to quashing it is letting the government become an editor over the shoulder of journalists doing the news.”

A local trial judge on Dec. 4 ordered a hearing to determine whether Tracy, a University of Montana undergraduate, qualifies under the state shield law for protection of the unaired footage. The court has yet to set a date for the hearing.

Tracy, a journalism student, 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 to the crowds. Tracy also made her documentary available for free at a local video store. She later received class credit for the documentary.

Tracy said she intended to create the documentary to provide a more in-depth look at the incidents than would be possible on the evening newscast. She used 20 minutes of nearly two hours of the footage.

The city of Missoula began distributing copies of the documentary as part of a compilation of videos dealing with the same incidents without obtaining permission from Tracy. Through a university attorney, Tracy demanded the city stop the copying and distribution. When the mayor requested permission to use the tape, Tracy declined. Deputy city attorney Gary Henricks’ subpoena was signed by a local judge the same day she declined, 11 weeks after the incident took place.

“I totally felt like (the subpoena) was a fishing expedition,” Tracy said. “And I also felt like it was a form of intimidation. They got mad at me, so they tried to put me in jail.”

Henricks said he could not recall when he first became aware that Tracy had more footage than her 20-minute documentary, but denied having any contact with the mayor’s office about Tracy’s tapes before the subpoena was issued.

In an affidavit, Tracy claimed her sources would “dry up” if she were “seen as an agent, even a reluctant one, for gathering material that can be seized by the government.”

“If I have already been proven willing to turn over raw footage to the police department, the next time I go out to do a video of a group that might be really sensitive to the media, they’re not going to trust me,” Tracy said. “To me, that’s the most important thing.”

In his objection to Tracy’s motion to dismiss the subpoena, Henricks alleged the student was not a journalist and not entitled to journalistic protections, an argument which has motivated local journalists to support her cause. The local chapter of the Society of Professional Journalists donated $1,000 to Tracy’s defense.

Sherwood argued in his motion to dismiss the subpoena that the tapes are protected both under the Montana Media Confidentiality Act — or “shield law” — and under the First Amendment. The statute states that the privilege applies to “any newspaper, magazine, press association, news agency, news service, radio station, television station, or community antenna television service or any person connected with or employed by any of these for the purpose of gathering, writing, editing, or disseminating news”

Henricks argued the Montana statute did not cover someone in Tracy’s position. In addition to arguing that Tracy was primarily a student and not employed by the news media, Henricks pointed out that Tracy used the video documentary for class credit only after she was unable to complete a separate pre-assigned project. Tracy also owns a video business, “Turtle Majik Productions,” but Henricks mentioned that her state business application makes no mention of investigative journalism as its business purpose. Henricks also argued that Tracy failed to get a business license with the city.

“My idea of a journalist is somebody who recognizes a newsworthy event, and documents it and disseminates it out to public,” Tracy said. “I think documentarians are as much journalists as news reporters.”

“At SPJ, we’d almost say there is no set definition for what makes a journalist because once you start defining them, we feel that opens the door to certain restrictions based on the definition,” said Ian Marquand, chair of the SPJ Freedom of Information committee. “As vague as it may sound, I know a journalist when I see one based on the function they perform and based on why they do what they do and what the nature of their work is.”

Tracy said that public statements by authorities indicated that two detectives have been examining videos shot by others since the incidents took place. Henricks said police had reviewed approximately 40 other tapes, but denied that Tracy’s tapes were superfluous to the investigation.

In a seven-page ruling calling for the hearing, Missoula District Judge Douglas Harkin determined the primary issue is whether Tracy is a “person” under the state shield law.

“The term ‘person’ under (the shield law) does not encompass any university student studying journalism at the University of Montana who receives academic credit from the Journalism Department for school work performed,” Harkin wrote. “However, Linda Tracy has presented evidence that her business, Turtle Majik Productions, or her connection with the University of Montana’s Radio and Television Department program entitled Montana Journal meets the threshold level needed to raise a question of fact; therefore, an evidentiary hearing is required.” –DB