This report was researched and written by attorney John Adam of the Royal Oak law firm, Martens, Ice, Klass, Legghio & Israel for Detroit Local 22 of The Newspaper Guild. Adam presented his work on June 4, 2002 at a Guild forum aimed at informing Guild members about their legal rights and obligations in case a court orders them to give evidence. Attendance was poor.
Attorney Adam wrote the report in response to my own situation involving a subpoena from the Oakland County Circuit Court. That experience, and John Adam’s research, have caused me to look at so-called journalism First Amendment cases very differently. I’ll write about that adventure soon.
Meanwhile, as Detroit Free Press reporter David Ashenfelter waits to see whether a federal judge will hold him in contempt of court for refusing to identify his sources for a controversial article, it seems like a good time to re-visit Adam’s report. It’s important to know that 1) in the Ashenfelter case, the Michigan reporter’s Shield Law is not recognized by the Sixth Circuit Court of Appeals in Cincinnati and 2) according to U.S. District Judge Robert Cleland, there is no shield protecting a reporter or anyone from giving eviden about a crime.
— JT
SUBPOENAED JOURNALIST IN MICHIGAN: RIGHTS AND DUTIES
Under the First Amendment, the U.S. Supreme Court has said there is a “qualified privilege” with respect to the “newsgathering” process. The courts have noted that the function of the press as a primary source of information to the public may be impeded if a reporter’s ability to gather news is impaired, especially if the importance of the reporter’s relationship with confidential informants is not recognized
Likewise, the Michigan Supreme Court in 2000 threw out criminal investigative subpoenas issued by the prosecutor seeking press photos and video footage in connection with a criminal case arising out of a 1998 East Lansing riot. (In re Investigation of March 1999 Riots in East Lansing, Sept. 26, 2000.) Several different news organizations, e.g., the Lansing State Journal and WZZM-TV, refused to provide unpublished photos or videotape. The prosecutor issued investigative subpoenas to three newspapers and seven television stations seeking all photos and video footage related to the riot.
The Michigan Supreme Court held that a state law, known as the Michigan shield law, provided that a reporter is subject to an investigative subpoena only under two circumstances: (1) where the subpoena seeks already published information or (2) where the reporter is the subject of the inquiry. Because the subpoena fit neither circumstance, the court held that the news media could not be forced to produce the tapes.
Reporters and news media are sometimes served with subpoena duces tecum (to produce documents, like notes, tapes, etc.) or subpoena ad testificandum (to testify) or to do both. Even if the reporter is employed by a news medium, the subpoena is often directed at the reporter, not the company.
Below is a general outline to help you learn your rights and duties. As this is only a general outline, you should consult with an attorney, your union representative and your editor about the specific details of any subpoena. Subpoenas are issued in both state and federal courts and in civil and criminal cases and the rules may differ.
QUESTIONS AND ANSWERS
1. What is a subpoena?
A subpoena is usually a written order directed to a person or entity, like a union or newspaper, directing a person to appear to (1) testify at a hearing, trial, or pre-trial discovery, or to (2) produce documents.
2. How do I know if a subpoena is valid?
It should contain the information required in the blanks of the subpoena form and should be signed by a judge, court clerk or an attorney representing one of the parties. You are entitled to reasonable notice and usually a witness fee. The due date to appear to testify or to produce documents must be reasonable.
3. What should you do if you are subpoenaed by a prosecutor or some other party to testify or to produce documents in a criminal or civil case?
Generally, you should contact your employer and you may want to contact your union representative and your attorney. You should ask the employer for guidance. Do not ignore it or try to evade service of the subpoena. You may object to the subpoena. If you object, you are asking a judge to decide whether you have to obey the subpoena. If you or your employer objects to the subpoena, you may have to appear in court in person or by writing and explain why you should not have to comply with the subpoena.
4. Do I have any special protections because I am a reporter?
Yes. In cases governed by Michigan law, Michigan‘s Shield law, MCL 767A.6(6), applies to criminal investigations:
A reporter or other person who is involved in the gathering or preparation of news for broadcast or publication is not required to disclose the identity of an informant, any unpublished information obtained from an informant, or any unpublished matter or documentation, in whatever manner recorded, relating to a communication with an informant, in any inquiry conducted under this chapter. A reporter or other person who is involved in the gathering or preparation of news for broadcast or publication is subject to an inquiry under this chapter only under the following circumstances:
(a) To obtain information that has been disseminated to the public by media broadcast or print publication.
(b) If the reporter or other person is the subject of the inquiry.
(Bold added.)
The critical distinctions are published versus unpublished and informant versus identified person.
In addition, there may be other privileges or objections that can be asserted depending on the circumstances. See, for example, http://www.rcfp.org/news/2002/0515warcri.html (Lawyers for The Washington Post … pleaded to a United Nations war crimes tribunal to grant a former reporter a reprieve from testifying in a case in the fear that forcing him to testify against a suspected war criminal could set a dangerous precedent for journalists in wartime.)
The Federal Privacy Protection Act in 1980, 42 U.S.C. § 2000aa, generally prohibits both federal and state officers and employees from searching or seizing journalists= “work product” or “documentary materials” in their possession. The Act provides limited exceptions that allow the government to search for certain types of national security information, child pornography, evidence that the journalists themselves have committed a crime, or materials that must be immediately seized to prevent death or serious bodily injury. “Documentary materials” may also be seized if there is reason to believe that they would be destroyed in the time it took to obtain them using a subpoena, or if a court has ordered disclosure, the news organization has refused and all other remedies have been exhausted.
6. Can I take the Fifth and refuse to testify or produce documents?
Generally, the Fifth Amendment does not apply to subpoenas for reporters’ sources and information. It would apply only if there is some indication that the reporter might be a target, there is some assertion of criminal wrongdoing by the reporter or the answer to the question could expose the witness to criminal charges. If you assert the Fifth Amendment privilege, the Judge would likely conduct a hearing, explain the rules, determine the basis for asserting the Fifth and perhaps direct you to answer the question.
7. If I am subpoenaed to testify or to produce certain documents, does the company have to provide me with an attorney? If the company attorney calls me and says he can handle it, who does the attorney represent?
Your employer can and should provide you with an attorney since you are being subpoenaed because of your actions in the scope of your employment. Technically, the attorney is representing the company but should be able to file objections and provide advice to you. Your interests are usually aligned. The company attorney, however, is not your own personal lawyer; the attorney is hired and paid for by the company.
8. What if I disagree with the advice provided by the company attorney?
You may also want to consult with your own attorney and receive independent advice and you may want to contact your union. Your interests and your employer’s interests might diverge at some point.
9. Should I hire my own lawyer?
You may want to consult with your own attorney. This may depend on what is at issue, whether you will comply and other factors.
Q&A FROM REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS HTTP://WWW.RCFP.ORG/CSI/QUESTIONS.HTML
1. Do I have to respond to a subpoena?
In a word, yes. Ignoring a subpoena is a bad idea. Failure to respond can lead to charges of contempt of court, fines, and in some cases, jail time. Even a court in another state may, under some circumstances, have authority to order you to comply with a subpoena.
2. What are my options?
Your first response to a subpoena should be to discuss it with an attorney if at all possible. Under no circumstances should you comply with a subpoena without first consulting a lawyer. It is imperative that your editor or your news organization’s legal counsel be advised as soon as you have been served.
Sometimes the person who subpoenaed you can be persuaded to withdraw it. Some attorneys use subpoenas to conduct “fishing expeditions,” broad nets cast out just to see if anything comes back. When they learn that they will have to fight a motion to quash their subpoenas, lawyers sometimes drop their demands altogether or agree to settle for less than what they originally asked for, such as an affidavit attesting to the accuracy of a story rather than in court testimony.
Some news organizations, particularly broadcasters whose aired videotape is subpoenaed, have deflected burdensome demands by agreeing to comply, but charging the subpoenaing party an appropriate fee for research time, tape duplication and the like.
If the person who subpoenaed you won’t withdraw it, you may have to fight the subpoena in court. Your lawyer will file a motion to quash, which asks the judge to rule that you don’t have to comply with the subpoena.
If the court grants your motion, you’re off the hook unless that order is itself appealed. If your motion isn’t granted, the court will usually order you to comply, or at the very least to disclose the demanded materials to the court so the judge may inspect them and determine whether any of the materials must be disclosed to the party seeking them. That order can itself be appealed to a higher court. If all appeals are unsuccessful, you could face sanctions if you continue to defy the court’s order. Sanctions may include fines imposed on your station or newspaper or on you personally, or imprisonment.
In many cases a party may subpoena you only to intimidate you, or gamble that you will not exercise your rights. By consulting a lawyer and your editors, you can decide whether to seek to quash the subpoena or to comply with it. This decision should be made with full knowledge of your rights under the First Amendment, common law, state constitution or statute.
3. They won’t drop it. I want to fight it. Do I have a chance?
This is a complicated question. If your state has a shield law, your lawyer must determine whether it will apply to you, to the information sought and to the type of proceeding involved. Even if your state does not have a shield law, or if your situation seems to fall outside its scope, the state’s courts may have recognized some common law or constitutional privilege that will protect you. Each state is different, and many courts do not recognize the privilege in certain situations.
Whether or not a statutory or other privilege protects you in a particular situation may depend on a number of factors. For example, some shield laws provide absolute protection in some circumstances, but most offer only a qualified privilege. A qualified privilege generally creates a presumption that you will not have to comply with a subpoena, but it can be overcome if the subpoenaing party can show that information in your possession is essential to the case, goes to the heart of the matter before the court, and cannot be obtained from an alternative, nonjournalist source.
Some shield laws protect only journalists who work fulltime for a newspaper, news magazine, broadcaster or cablecaster. Freelancers, book authors, scholarly researchers and other “nonprofessional” journalists may not be covered by some statutes.
Other factors that may determine the scope of the privilege include whether the underlying proceeding is criminal or civil, whether the identity of a confidential source or other confidential information is involved, and whether you or your employer is already a party to the underlying case, such as a defendant in a libel suit.
The decision to fight may not be yours alone. The lawyer may have to consider your news organization’s policy for complying with subpoenas and for revealing unpublished information or source names. If a subpoena requests only published or broadcast material, your newspaper or station may elect to turn over copies of these materials without dispute. If the materials sought are unpublished, such as notes or outtakes, or concern confidential sources, it is unlikely that your employer has a policy to turn over these materials at least without first contesting the subpoena.
Every journalist should be familiar with his or her news organization’s policy on retaining notes, tapes and drafts of articles. You should follow the rules and do so consistently. If your news organization has no formal policy, talk to your editors about establishing one. Never destroy notes, tapes, drafts or other documents once you have been served with a subpoena.
In some situations, your news organization may not agree that sources or materials should be withheld, and may try to persuade you to reveal the information. If the interests of the organization differ from yours, it may be appropriate for you to seek separate counsel.
4. Can a judge examine the information before ordering me to comply with a subpoena?
Some states require or at least allow judges to order journalists to disclose subpoenaed information to them before revealing it to the subpoenaing party. This process, called in camera review, allows a judge to examine all the material requested and determine whether it is sufficiently important to the case to justify compelled production.
SAMPLE LETTER TO EMPLOYER
Dear Employer:
I am writing in connection with the attached subpoena I just received and which I called you about. It states I need to reply by ____________.
Since the subpoena, on its face, appears to relate to a matter I covered as a reporter, I am requesting guidance as to how you want me to reply and whether the company will file an objection with the court, or if I should handle without any guidance from the company.
First, will the employer provide me with a lawyer to represent me as a reporter for the company?
Second, will the company object to the subpoena, and if the answer is yes, will a company attorney file the objection? If the answer is yes, please provide me with a copy of the objection.
Third, what does the company want or expect me to do?
A prompt relay would be appreciated.
Sincerely,
John Q. Reporter
cc: Lou Mlezcko, Newspaper Guild of Detroit
SELECTED WEB SITES
Reporters Committee for Freedom of the Press (RCFP)
RCFP Awas created in 1970 at a time when the nation’s news media faced a wave of government subpoenas asking reporters to name confidential sources.@ www.rcfp.org
AHOTLINE Journalists can call our toll?free legal defense hotline with questions about how the law affects the gathering and reporting of news. 1-800-336-4243
Listen to the oral argument before the U.S. Supreme Court in Branzburg v. Hayes (1972)
Issue: Is the requirement that news reporters appear and testify before state or federal grand juries an abridgement of the freedoms of speech and press as guaranteed by the First Amendment?
No. The Court found that requiring reporters to disclose confidential information to grand juries served a “compelling” and “paramount” state interest and did not violate the First Amendment. Justice White said that since the case involved no government intervention to impose prior restraint, and no command to publish sources or to disclose them indiscriminately, there was no Constitutional violation. The fact that reporters receive information from sources in confidence does not privilege them to withhold that information during a government investigation; the average citizen is often forced to disclose information received in confidence when summoned to testify in court. http://oyez.nwu.edu/cases/cases.cgi?case_id=48&command=show
THE PRIVACY PROTECTION ACT OF 1980 (“PPA”), 42 U.S.C. § 2000AA, et seq.
[The PPA protects journalists from being required to turn over to law enforcement any work product and documentary materials, including sources, before they are disseminated to the public.]
§ 2000aa. Searches and seizures by government officers and employees in connection with investigation or prosecution of criminal offenses
(a) Work product materialsNotwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize any work product materials possessed by a person reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce; but this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if–
(1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate: Provided, however, That a government officer or employee may not search for or seize such materials under the provisions of this paragraph if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein (but such a search or seizure may be conducted under the provisions of this paragraph if the offense consists of the receipt, possession, or communication of information relating to the national defense, classified information, or restricted data under the provisions of section 793, 794, 797, or 798 of Title 18, or section 2274, 2275 or 2277 of this title, or section 783 of Title 50, or if the offense involves the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, the sexual exploitation of children, or the sale or purchase of children under section 2251, 2251A, 2252, or 2252A of Title 18); or
(2) there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being.
(b) Other documentsNotwithstanding any other law, it shall be unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize documentary materials, other than work product materials, possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication, in or affecting interstate or foreign commerce; but this provision shall not impair or affect the ability of any government officer or employee, pursuant to otherwise applicable law, to search for or seize such materials, if–
(1) there is probable cause to believe that the person possessing such materials has committed or is committing the criminal offense to which the materials relate: Provided, however, That a government officer or employee may not search for or seize such materials under the provisions of this paragraph if the offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein (but such a search or seizure may be conducted under the provisions of this paragraph if the offense consists of the receipt, possession, or communication of information relating to the national defense, classified information, or restricted data under the provisions of section 793, 794, 797, or 798 of Title 18, or section 2274, 2275, or 2277 of this title, or section 783 of Title 50, or if the offense involves the production, possession, receipt, mailing, sale, distribution, shipment, or transportation of child pornography, the sexual exploitation of children, or the sale or purchase of children under section 2251, 2251A, 2252, or 2252A of Title 18);
(2) there is reason to believe that the immediate seizure of such materials is necessary to prevent the death of, or serious bodily injury to, a human being;
(3) there is reason to believe that the giving of notice pursuant to a subpena duces tecum would result in the destruction, alteration, or concealment of such materials; or
(4) such materials have not been produced in response to a court order directing compliance with a subpena duces tecum, and–
(A) all appellate remedies have been exhausted; or
(B) there is reason to believe that the delay in an investigation or trial occasioned by further proceedings relating to the subpena would threaten the interests of justice.
(c) Objections to court ordered subpoenas; affidavitsIn the event a search warrant is sought pursuant to paragraph (4)(B) of subsection (b) of this section, the person possessing the materials shall be afforded adequate opportunity to submit an affidavit setting forth the basis for any contention that the materials sought are not subject to seizure.
