September/October 2000 | Contents

LAW, THE MEDIA &...

...SUBPOENAS
Resist, Resist, Resist

BY NEIL HICKEY

Thousands of times a year, reporters and editors around the country are hit with subpoenas to turn over notes and outtakes and to testify in cases where they're presumed to have information helpful to prosecution or defense. Newsroom lawyers advise their clients to fight subpoenas to the bitter end. Says Linda Lightfoot, executive editor of the Baton Rouge Advocate: "We don't turn over unpublished material." The paper scrupulously invokes Louisiana's shield law. On photo coverage of breaking news, Lightfoot has a simple strategy: "If we take twenty-five pictures and publish one, I throw away the other twenty-four negatives."

Many TV stations have a similar practice. At Tribune Broadcasting, in-house lawyer Charles Sennet says that the company typically declines to surrender non-broadcast tapes. In fact, says Sennet, the outtakes usually aren't available anyway. "You save what's been broadcast and discard the rest."

In Oklahoma City, attorneys for Terry Nichols -- now standing trial for the 1995 bombing of the Alfred P. Murrah Federal Building -- tried to acquire from every television station in town every foot of their coverage whether it had been aired or not."We estimated we had 3,000 videotapes representing 850 hours of material that would take 35 full days to play back," says Joe Hengemuehler, news director of KOCO-TV. The stations refused and the court agreed that the request was an undue burden.

Most journalists and lawyers we talked to agree it's usually okay to comply with subpoenas for material the public has already seen, read, or heard. For the rest, a bit of guile is often necessary. Example: NBC News once shot four hours of film on a story about California cops allegedly targeting blacks, and used roughly 45 seconds of it. All four hours was subpoenaed. NBC refused to turn the tape over, but company lawyers concluded they'd probably lose the case. The network's ploy? It beamed the four hours of (largely boring, useless) video to an affiliated station, thereby establishing that, at least technically, the material was seen -- or might have been seen -- by the public and thus could be surrendered without violating company policy.

Some newspapers have met similar demands for unpublished material by dumping it on their Web sites, thus making it public, rather than caving in under judicial pressure -- a tactic that emphasizes their determination to defy all such probes.

Sometimes, though, a journalist can hit a brick wall, having exhausted all legal options. In June, J. Harry Jones, a San Diego Union-Tribune reporter, agreed to turn over unpublished notes from a jailhouse interview with the suspected killer of three people. Said Jones: "I have a family, and going to jail for a year or two would be too much to ask." Courts can rule that a defendant's right to a fair trial trumps a journalist's right to hold his notes private, including notes from -- and the identity of -- confidential sources.

A 1998 cjr article by Doug Underwood, an associate professor of communications at the University of Washington, triggered a civil defamation lawsuit by a group of reporters who had been laid off by the Arizona Republic. In the article, Underwood reported that the Republic's then managing editor referred to the reporters as "fat, lazy, incompetent, and slow." The reporters sued Phoenix Newspapers, Inc., the Republic's owner, and the editor for libel. (Neither Underwood nor cjr was named in the lawsuit.) The plaintiff reporters then subpoenaed Underwood's notes. He refused, but testified in a deposition about what was in them. The case is now on appeal from a court order that recognized a qualified privilege, but held that the plaintiff reporters' need for the notes outweighed the privilege. The reporters have continued to seek Underwood's notes and have argued that the courts should not recognize a qualified privilege in them.

Neil Hickey is CJR's editor at large.