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Notice Requirements Help Journalists Facing Abusive Subpoenas

Prompted by media attention to a rash of subpoenas issued to California journalists, the California legislature has enacted new procedural safeguards, including a minimum of five days' notice before a journalist may be required to testify, that enhance the rights provided under California's Shield Law. California Code of Civil Procedure Section 1986.1 represents a direct and straightforward legislative response, which could serve as a model for other states, to the increasingly prevalent practice of serving subpoenas on journalists without sufficient time for them to meet with legal counsel. In a number of cases, this practice had threatened to undermine the rights journalists have under the Shield Law to refuse to testify except under limited circumstances.

Stopping An Unfortunate Trend Against Reporters

Section 1986.1 responds to a problem that gained prominence in a 2000 case involving a small newspaper in the rural Northern California community of Altois, California. Tim Crews, publisher, editor and chief reporter and photographer of The Sacramento Valley Mirror, published several front-page articles concerning the arrest of a local California Highway Patrol officer for possession of a stolen gun. The newspaper's reporting was based on information Mr. Crews had received, in confidence, from law enforcement sources. Defense counsel subpoenaed Mr. Crews, to require him to reveal his sources at the preliminary hearing. Mr. Crews appeared without counsel at that hearing. Citing the First Amendment, Mr. Crews refused to disclose the name of his confidential sources, insisting that to do so would endanger their safety and livelihood and undermine his ability to effectively report on local law enforcement activities. The presiding judge, Tehama County Superior Court Judge Noel Watkins, took the position that defendant needed to know the name of the confidential sources - stating at one point that defendant was "only" asking Mr. Crews to reveal their identities. When Mr. Crews continued to refuse, Judge Watkins found him in "open contempt" and sentenced him to five days in the county jail. Mr. Crews was given 72 "judicial hours" to attempt to obtain a stay from the Court of Appeal, although this later was extended to allow Mr. Crews to pursue a review of the court's decision in four other courts.

On short notice, Mr. Crews was able to gather compelling evidence that defendant had a number of alternative sources for the information he subpoenaed and that Mr. Crews' testimony would not materially assist the defense. California's Shield Laew is absolute, but the California Supreme Court held that the Shield Law must yield to the criminal defendant's constitutional right to a fair trial. Nevertheless, Mr. Crews was unsuccessful in his requests for extraordinary relief. California's Court of Appeal and Supreme Court, the U.S. District Court for the Eastern District of California, and the Ninth Circuit Court of Appeals all refused to hear Mr. Crews' case on its merits before expiration of the stay of Judge Watkins' contempt order. On February 26, 2000, Mr. Crews reported to the Tehama County jail to serve a five-day contempt sentence. Later, he was served with a trial subpoena by defense counsel. In the end, defense counsel voluntarily agreed to withdraw the trial subpoena without a legal fight, but not until after Mr. Crews already had spent five days in jail and had incurred substantial interruption to the operations of The Valley Mirror as he fought his contempt sentence.

The California Legislature's Response

The California legislature took notice of Mr. Crews' ordeal and other recent examples of abusive journalist subpoenas. Assembly-woman Carol Migden introduced AB 1860, along with a legislative report declaring the bill "makes a number of clarifications relative to the rights of journalists under the media shield law. ..." The report discussed Mr. Crews' case and also stated, "[i]n a second case, a journalist faced fines of $1,000 per day for exercising his shield law rights. ... In another case, a college newspaper journalist was subpoenaed into court to testify and threatened with jail time if he did not turn over his confidential notes. ... Each of these journalists would have been spared hours in court and thousands of dollars in attorney fees through this bill." The report went on to explain that,

Journalists are professional investigators. The main purpose of the shield law is to prevent government from making journalists its investigative agents and to prevent a journalist who is trying to cover the story from becoming part of the story (which makes them wholly unable to cover it). Increasingly, when a criminal case is newsworthy, the first thing (not the last thing) defense attorneys do is subpoena any journalist who has covered the story. This has several negative impacts:

  1. it makes journalists the unpaid investigators of the party's counsel;
  2. it harms journalists' ability to gather information in the future (e.g., sources willing to be interviewed by a journalist on the condition of confidentiality will be unwilling to do so if they understand that the government can routinely violate that confidentiality agreement); and
  3. it takes resources away from newsgathering. A reporter who becomes a witness is unable to cover the story. Additionally, successfully asserting one's constitutional shield law rights is expensive and time-consuming. Tim Crews' successful battle cost him five days in jail and legal fees of $70,000.

The California legislature unanimously adopted the bill, and Governor Davis promptly signed it into law. Section 1986.1 is designed to prevent many of the procedural problems that result in a loss of the substantive rights protected by the Shield Law. It ensures that a journalist will not be deemed to have waived his or her Shield Law rights by - often inadvertently - divulging privileged information in response to a subpoena. It provides that, except in "exigent circumstances," journalists must have at least five days' notice before being required to testify. Section 1986.1 also mandates that trial courts provide findings to support any infringement they might make on the journalist's Shield Law rights. These requirements should - except in "exigent circumstances" - provide journalists with the time needed to retain counsel and fully evaluate their rights, and force trial courts to evaluate and balance the interests being asserted.

Procedural Protections Available In Other States

A few other states have similar procedural mechanisms designed to protect the substantive rights conferred by their respective shield laws. For example, Louisiana's Shield Law protects a journalist's rights by providing that,

[A] person entitled to claim the qualified protection provided under the provisions of Subsection B of this Section to whom a subpoena is directed may, within ten days after the service thereof, or, on or before the time specified in the subpoena for compliance, if such time is less than ten days after service, serve upon the attorney designated in the subpoena written objection specifying the grounds for his objection. Once objection is made, the party serving the subpoena shall not be entitled to compliance except pursuant to an order of the court from which the subpoena was issued. The party serving the subpoena may, if objection has been made, move upon notice to the person who served the objection for an order compelling compliance with such subpoena after a hearing in conformity with the provisions of Subsection B of this Section and based upon the findings required therein. La. Rev. Stat. § 1459(C).

This statute provides a different mechanism for protecting the subpoenaed journalist's rights, but presumably would be an effective tool for the journalist. Once served with a subpoena, a journalist need only serve a written objection on the attorney who issued it, and specify the grounds for the objection. Such notice may be done without the assistance of counsel. The result is that with minimal effort, the journalist can buy some time by shifting the burden back to the party issuing the subpoena, who then must evaluate the need for the journalist's testimony and, if appropriate, file a noticed motion to obtain that testimony.

New Jersey offers a different approach for protecting journalist rights. Its Shield Law provides that:

Proceedings pursuant to this act shall take place before the trial, except that the court may allow a motion to institute proceedings pursuant to this act to be made during trial if the court determines that the evidence sought is newly discovered and could not have been discovered earlier through the exercise of due diligence. N.J. Stat. Ann. 2A:84A-21.2.

The New Jersey statute also provides that,

The determinations to be made by the court pursuant to this section shall be made only after a hearing in which the party claiming the privilege and the party seeking enforcement of the subpoena shall have a full opportunity to present evidence and argument with respect to each of the materials or items sought to be subpoenaed. N.J. Stat. Ann. 2A:84A-21.3(c).

In addition, the New Jersey statute establishes the burden of the party seeking to overcome the journalist's rights. N.J. Stat. Ann. 2A:84A-21.3(b). Here, as with Louisiana's statute, a formal hearing must be held before the journalist's rights can be compromised. The journalist must be given the opportunity to present argument and legal authority to support his privilege claim, and the court is given specific criteria for evaluating those rights. Although New Jersey does not have a built-in delay for enforcement of the subpoena - as do California and Louisiana - the requirement of a hearing and "a full opportunity to present evidence and argument" may effectively delay enforcement of the subpoena long enough to enable the journalist to retain counsel to protect his or her rights.

Tennessee's laws also feature a procedural mechanism designed to protect the substantive rights conferred by the Shield Law. In Tennessee, the Shield Law establishes an apparently absolute privilege against divulging information "procured for publication or broadcast," and then provides:

  1. Any person seeking information or the source thereof protected under this section may apply for an order divesting such protection. Such application shall be made to the judge of the court having jurisdiction over the hearing, action or other proceeding in which the information sought is pending.
  2. The application shall be granted only if the court after hearing the parties determines that the person seeking the information has shown by clear and convincing evidence that [the information is necessary in light of three enumerated factors]. Tenn. Code Ann. § 24-1-208(c).

The Tennessee statute also places the burden on the party issuing the subpoena to move for an order compelling disclosure of the sought-after information. The journalist's privilege is absolute - and cannot be compromised - unless the issuing party establishes a compelling need for that information. Again, the result should be that the journalist has some time to consult with counsel and prepare a response to the subpoena.

A Success Story In California

The initial experience of journalists under California's new statute indicates that its goal of protecting journalists from abusive subpoenas is being met. In our practice, at least two subpoenas have been withdrawn after counsel were alerted to the five day notice requirement. In another situation, in a rural court setting, the publisher brought section 1986.1 to the attention of the local bench and obtained assurances that in the future, its reporters would not be forced to testify, without counsel, on shortened notice.

One recent example demonstrates how effective section 1986.1 can be. In November, a prosecutor in a criminal case was interviewing the arresting officer a day before trial was scheduled to begin - as often happens in California's busy criminal law system - and learned for the first time that a local journalist had been on a ride-along with the police and had seen the defendant's arrest. The prosecutor promptly issued a subpoena to the reporter.

Counsel for the newspaper immediately referred the prosecutor to section 1986.1, and argued that the subpoena was invalid because the prosecutor failed to give the five days' notice required by the statute. The prosecutor - who had never seen section 1986.1 and did not know before counsel's letter that five days' notice was required - seized on the "exigent circumstances" exception and convinced the presiding judge to schedule a hearing to determine whether section 1986.1 precluded issuance of the subpoena. The court continued the trial, which was scheduled to last only a few days, to take argument on the applicability of section 1986.1.

At the hearing, the court found that the "exigent circumstances" exception did not apply. It held that exigent circumstances cannot exist if the arresting officer knows about the reporter and merely fails to relay that information to the prosecutor (which could effectively nullify the statute in California, given the busy schedules of prosecutors and their propensity to prepare their cases a few days, or less, before trial ). Rather, exigent circumstances are circumstances - as defined in other areas of criminal law - that cannot be anticipated or prepared for, and which require an immediate response. The court found that the prosecutor's imputed knowledge (based on the arresting officer's knowledge), and his delay in preparing his case and interviewing the arresting officer, undermined any claim of exigent circumstances.

The court did, however, agree to the prosecutor's request that the trial be continued to allow him to subpoena the journalist on five days' notice. In the end, the prosecutor decided that the journalist's testimony was not worth the extra effort and delay, and elected to rest his case rather than hold the matter open the full five days.

The important role of section 1986.1 in this story is evident. Were it not for this statute, the journalist would have been required to appear for testimony on less than a days' notice. Although he certainly would have been represented by counsel when he appeared, it would have been difficult or impossible to fully brief the journalist's Shield Law rights on such short notice. In addition, the prosecutor would have had no incentive to evaluate his need for the journalist's testimony and no reason to voluntarily withdraw his subpoena. Section 1986.1 forced the prosecutor and the court to consider what the journalist's testimony offered to the prosecution, and whether that testimony was truly valuable. Other states, which undoubtedly have similar problems, should consider providing their journalists with protections like that offered by section 1986.1.

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