An Epidemic Called Subpoena p. 13

By: Debra Gersh Hernandez THERE IS AN epidemic sweeping the news media, and its name is subpoena.
As the Reporters Committee for Freedom of the Press (RCFP) completed "Agents of Discovery," its three-part, five-year study of subpoenas served on the news media, it found a steady increase, with signs and portents not getting any better, commented RCFP executive director Jane E. Kirtley.
"The numerical results contained in all three reports in this study, coupled with the comments and observations of reporters, editors and publishers, paint a portrait of a problem that continues to undermine the role of a free and independent press in American society," the final report explained.
Kirtley said she was not terribly surprised by the results.
The report was compiled to provide empirical evidence news media can use in court when challenging subpoenas and for help in drafting state shield laws.
Of the 664 newspapers and 236 television stations responding to the survey, 469, or 52.1%, said they had been subpoenaed in 1993. By comparison, 43.9% of 1991 respondents and 46.7% in 1989 reported being subpoenaed.
In all, some 3,519 subpoenas were served on news outlets in 1993, with television stations receiving 69.9% and newspapers 30.1%.
Less than half (41.6%) of the newspapers surveyed received one or more subpoenas, although that still is an increase over 1989 (33%) and 1991 (34.2%). Television news outlets were hit much harder, with 81.8% of respondents reporting that they had been served with one or more subpoenas in 1993.
At least one news outlet in all of the 50 states and the District of Columbia
responded to the 1993 survey, and at least one news media subpoena was reported in each, including Utah, where there were no reports of subpoenas issued in 1991, but 25 were recorded in 1993.
The most news media subpoenas were issued in the state of Texas, in which 504 were reported, followed by California with 374, Pennsylvania with 232, Florida's 216, and 207 in New York.
The most frequently subpoenaed material was broadcast footage that already had aired (25.4%), while unedited audiotape or videotape accounted for 15.7% of the subpoenas and outtakes 9.2%.
Published stories were sought in 12.6% of the subpoenas and notes by 11.1%. Seven percent of the subpoenas asked for reporter's testimony, 3.9% were seeking drafts, 3.8% published photographs, 2.9% unpublished photos, 2.7% internal memos, and 2% photo negatives.
Kirtley explained that many subpoenas for aired or published stories are simply fishing expeditions or means by which parties in the case turn the news organizations into librarians.
The report noted that "many news outlets reported that they discourage demand for published or broadcast information by charging high fees for retrieving and copying the requested material."
Most of the subpoenas issued in 1993 were in criminal cases (53.7%), and most of those were in conjunction with a criminal trial (82.3%).
Civil litigation accounted for 33.9% of the subpoenas, primarily civil trials (75.8%). In most of the civil cases, the media were served as third parties (89.1%).
In the civil cases where the media were subpoenaed as defendants, 68.5% involved libel suits, and 22.3% concerned invasion of privacy.
Newsroom searches were executed in three of the respondents' newsrooms ? two television stations and one newspaper ? and three newspapers said their telephone records had been subpoenaed.
Of the three respondents who said one of their staffers had been sanctioned for noncompliance with a subpoena, one was a newspaper. Reporter Lisa Abraham of the Tribune Chronicle, Warren, Ohio, spent 22 days in jail.
Another newspaper said it successfully avoided harsh sanctions by suggesting the judge review the material in chambers. He did, found the material to be irrelevant to the case, and quashed the subpoena.
In fact, the report noted that "many news outlets commented that their consistently aggressive response to subpoenas has resulted in fewer being issued against them."
Of the 10.1% of subpoenas challenged, judges quashed 81.2%.
Most successful challenges were based on the availability of the same information from other sources (27%) or because the issuer did not show sufficient need for a subpoena (23.6%).
Nevertheless, of the 53% of respondents who complied in full with the subpoenas issued in 1993, more were broadcasters (63.8%) than print (28%).
Broadcasters, however, received considerably more subpoenas in 1993 than did print respondents. Of all the subpoenas reported, 69.9% went to television news outlets and 30.1% to newspapers.
Another factor in the compliance figures is the fact that the type of material each medium was asked for was very different.
Over a third (36.2%) of the subpoenas to television stations were for material that already had been aired, while only 20.8% of newspaper subpoenas were for previously published material, according to the survey.
Of the subpoenas issued to newspapers, 26.9% requested a reporter's deposition or testimony.
Newspapers also were more successful than television stations in convincing individuals to withdraw their subpoenas (38.8% of cases vs. 13.3%) and in having subpoenas quashed (19.5% vs. 3.3%).
In addition, 21.7% of successful subpoena challenges by newspapers in the survey were based on shield laws, but they were used in only 6.9% of successful TV challenges, a considerable decline from 1991, when the broadcasters based 74.6% of their successful challenges on such legislation.
Shield laws appeared to have been little barrier to issuance of subpoenas, as 59% of subpoenas reported were in the 29 states and District of Columbia with such protection.
There are 16 states without shield laws that recognize a qualified or absolute reporter's privilege under law or the state constitution, and 36.1% of subpoenas were reported there.
Subpoenas have not been without impact, though, as 21.8% of respondents said their newsroom policies have been affected.
Of 900 respondents, 152 changed their policies on retention of notes and 44 changed policies regarding confidential sources.

Continued from page 21
march was often chosen as the last song of the evening while patrons carried home souvenir bottles swathed in black ribbons.
The Bulletin also reported on the first arrest made in Philadelphia for violating the new law. The story centered on a holdup attempt at a saloon where the bandits were ultimately apprehended but filed a countersuit against the owner for serving liquor past the deadline.
Holding true to their seemingly oppositional stance to the new policy, the Bulletin published, right next to this article, a poem in requiem of John Barleycorn.
The New York Times, on the day after the law went into effect, carried the same basic stories as had the Philadelphia Inquirer.
One ad for a New York nightclub noted that its owners had "readjusted its environment . . . in an earnest endeavor to counteract the Puritan ideas of those who would destroy the liberties that are our heritage."
Not until Jan. 19 did the Times reveal that it supported the new legislation.
An editorial mentioned some apparent loopholes in the law, such as the fact that an average housewife could be considered a criminal if she forgot about the jar of marmalade in her closet and it ultimately turned to hard cider.
But, in the same editorial, the Times recommended a library in Springfield, Mass., which removed all books that gave information on the manufacture of liquors.
The 18th Amendment of the United States Constitution proved to be a very bad mistake. Although the press may not have been sure of what position to take when the law was first enacted, coverage presented a fairly accurate account of the events of the times.
It was not until a few years later that the press started to unite in opposition to this law. And as it began to garner the support of the people, and this support continued to grow, for the first and only time in the history of our country, a lobby succeeded in getting a constitutional amendment repealed.
On Dec. 5, 1933, the 21st Amendment was ratified, thus ending Prohibition and closing that particular chapter in American life.