By: Jim Moscou
U.S. appellate court ruling erodes reporters’ rights
When nbc’s newsmagazine “Dateline” cameras caught a Louisiana deputy sheriff pulling over one of its producers, they got some troubling footage.
The network show had heard local police were using racial profiles to determine what cars to target for a pullover on that state’s roads. So “Dateline” wired a rented auto with its cameras and sent out a producer to see if it was true. Sure enough, a deputy stopped the producer for no apparent reason ? other than the producer’s skin color, allegedly.
The trouble came not only from the pullover but also from the fact the deputy on tape was being sued by a Hispanic couple who claimed they also were profiled for a stop simply because of their race. And that couple ? Albert and Mary Gonzalez ? wanted nbc’s unedited footage as evidence for their trial. nbc said they couldn’t have it, sending the case to court.
Two weeks ago, one of the nation’s top courts ruled that journalists do not necessarily have to turn over nonconfidential, unpublished material, such as unedited tapes ? a decision that has left some First Amendment attorneys and watchdogs deeply concerned. On Aug. 27, the U.S. Court of Appeals for the Second Circuit in New York said a journalist’s unpublished or unbroadcast material can have a limited qualified privilege and be protected from subpoenas.
But, in its decision, the court also redefined its test in determining what material can fall under qualified privilege ? a test that onlookers say opens the door wider for public access to a reporter’s notes, drafts, and edits.
“It was a ruling that was just a real mixed bag,” says Gregg Leslie, acting director of the Reporters Committee for the Freedom of the Press, based in Arlington, Va.
Behind the court’s decision is a twisted tale that dates back to September 1998. That’s when the Second Circuit ruled in the same case that no reporter’s privilege exists with nonconfidential, unpublished material in civil suits. In the realms of newsroom law, it was a devastating decision.
“It was so wrong.” says Sandra Baron, executive director of the Libel Defense Resource Council, based in New York. “You could find jaws dropping around the state.” Only the U.S. Supreme Court can overturn the Second Circuit’s rulings. And the Second Circuit’s decisions often set the tone ? and precedents ? for journalistic legal standards throughout the country. Many onlookers felt the ruling would have repercussions elsewhere, laying open a reporter’s nonconfidential, unpublished notes to the public.
“The Second Circuit is the court that interprets the First Amendment for New York City,” Leslie says. “But when you think of all the media companies based in the city, it can have a dramatic effect.”
nbc, based in New York, asked the court to reconsider its decision. The court agreed and two weeks ago ? in a rare turnaround by a federal court ? the judges reversed themselves. But, with its new ruling, the court revamped the rules as to when unpublished, nonconfidential material can be dubbed subject to reporter’s privilege in the Second Circuit’s jurisdiction.
Before the Gonzalez case, the Second Circuit held that to meet the standard for nonconfidential material to be revealed, the information had to be “highly relevant” to a “critical issue.” In the wake of the Gonzalez case, any material in question can be “of likely relevance” to a “significant issue.” And material that once had to be otherwise “not obtainable,” other than through the reporter’s unpublished work, can now just be “not reasonably obtainable.”
The decision might haunt a newsroom, media watchdogs says. For instance, if a reporter’s notes are dragged into court, the reporter and publication could appear biased. That, in turn, can dry up sources who fear they could be sucked into litigation, Leslie says.
To be sure, the decision doesn’t deal with the issue of confidential sources, which has led most states and the federal government to enact shield laws that generally assure journalists don’t have to disclose information from confidential sources.
As for the Gonzalezes’ case, nbc didn’t pass the new test and the couple might get their tapes.
“We were very pleased the court restored the privilege. But we’re also disappointed,” says Susan E. Weiner, attorney for nbc. “And, at this point, we’re not sure if we’re going to appeal.”
What to do in two legal binds:
In 1980, Congress passed the Privacy Protection Act that limits the circumstances in which a newsroom or a journalist’s office can be searched by state and federal law-enforcement officers. There are exceptions, such as preventing injury or death, as well as in cases when a journalist is suspected of involvement in committing a crime. Still, if the long arm of the law does come knocking, here are some things to remember:
?Try and delay the search until your attorney arrives and reads the search warrant.
?You are not required to assist in the search.
?Record the search by photographing and videotaping it.
?Consult your attorney as soon as possible. You may be able to get a judge to review the situation within hours.
?Several states provide protections in addition to the Privacy Protection Act. So, know your local laws.
after the subpoena:
A subpoena is a legal notice that an individual and/or an individual’s documents must appear in court or at a deposition. Ignoring a subpoena could mean a contempt-of-court charge.
Here are some tips to keep in mind if a subpoena lands on your desk:
?Tell your boss immediately and contact the company’s lawyer.
?Never destroy any documents, files, or tapes once the subpoena has been served.
?Do not comply with the subpoena’s requests until a lawyer has reviewed the material.
?Know your publication’s policy regarding turning over unpublished material.
?Be familiar with your state’s shield law. It may protect you from revealing certain information, like confidential sources.
?If you have a conflict with the company’s course of action, get your own attorney.
Source: Reporters Committee for the Freedom of the Press, http://www.rcfp.com.
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