Reporters nationwide have faced a flurry of subpoenas in recent months, calling into question whether journalists can guarantee confidentiality to sources. The repeated attempts to force journalists to reveal their confidential sources and other information about their newsgathering demonstrate the need for strong reporter “shield laws” on both the federal and state level.
Among some recent examples of attempts to force reporters to reveal information in federal court:
- The lawyer for former Trenton, N.J. mayor Tony Mack, who is facing federal corruption charges, issued a subpoena to a reporter for the Trenton Times, to ask about the reporter’s interview of a co-defendant.
- A military judge ordered CNN and CBS to release unaired interview footage as part of a Naval Academy midshipman’s court-martial on charges of aggravated sexual assault and false statements.
- New York City’s lawyers subpoenaed a Village Voice reporter for recordings that he obtained as part of his investigation into New York Police Department’s manipulation of police reports.
These recent cases demonstrate that journalists face the constant threat of being forced to reveal confidential information in federal courts. At the federal level, Congress has not yet enacted a shield law. Last September, the Senate Judiciary Committee, in a 13-5 vote, approved a bill that would prevent federal prosecutors, agencies, and civil litigants from forcing journalists to reveal their confidential sources without court approval. The Free Flow of Information Act (FFIA), sponsored by Sens. Charles Schumer, D-N.Y., and Lindsay Graham, R-S.C, would require anyone seeking confidential source information to exhaust alternative sources, demonstrate that the information is essential to the resolution of the matter, and would require a federal judge to conduct a balancing test to determine whether to allow a prosecutor or litigant to subpoena a journalist in federal court. The bill now awaits a vote in the full Senate.
Similarly, at the state level, prosecutors and litigants are also attempting to force journalists to reveal information about their reporting. Among some recent examples:
- The publisher and a reporter from The Edina Sentinel in Missouri received subpoena for information about their coverage of a murder trial.
- As part of an investigation into a shooting, a detective served a search warrant at the Daily Herald in Everett, Wash., seeking the identity of a person who posted a comment on the newspaper’s website.
- A Missouri prosecutor issued a subpoena to a St. Louis Post-Dispatch reporter for testimony about a confrontation that the reporter allegedly witnessed in courthouse elevators.
- The Union County, N.J. prosecutor subpoenaed a local blogger who writes critical articles about the county government, seeking the names of county employees who she alleged wrongly used the county’s generators after Hurricane Sandy.
- Lawyers for a former water district official in Nevada, who is facing a criminal trial for misconduct of a public official, subpoenaed the Mesquite Citizen Journal for documents, computer hard drives, audio recordings, and videotapes.
- A reporter in Philadelphia was subpoenaed by a civil plaintiff for information related to his ongoing coverage of a sex abuse scandal in the Philadelphia Catholic Church.
- The lawyer representing the Texas Windstorm Insurance Association subpoenaed the Austin American-Statesman for notes, emails, and other unpublished information, as part of its defense of a civil lawsuit. The lawyer later withdrew the subpoena after the newspaper announced plans to challenge it.
Because these subpoenas are in state courts, the federal shield law would not apply to these cases. But they are illustrative of the continued pressure that journalists face to reveal their sources. Although most states provide some protection either through statute or common law, that protection is not absolute, and even if the subpoena violates the shield law, litigants and prosecutors may still attempt to issue it.
– The author, a media and privacy lawyer at Covington & Burling, represents a 70-member media coalition seeking passage of the FFIA. The views expressed are those of the author and not of the firm.