No special privileges

By: David Noack Hearing over subpoena for pics of Mich. riots set

A hearing is scheduled this week in a Michigan courtroom over whether 11 news organizations, including the Lansing State Journal and The Detroit Free Press, must turn over unpublished photographs and videotape of rioting at Michigan State University.
The news media outlets will attempt, on May 19, to quash a second round of subpoenas in District Court for unpublished photographs and videotape of rioting that took place on campus in the city of East Lansing.
The latest legal salvos were issued two weeks ago by Ingham County Prosecutor Stuart J. Dunnings III to get the unused photo and videotape coverage of the rioting that took place in late March, which caused $145,000 in damages. In April, the state's highest court overturned earlier subpoenas for unused material.
Dunnings asserted that members of the news media are not afforded any special privilege because they witness a crime. "This is a situation in which they're just like any other witness to a crime. ... The camera was the eye and the film was the memory. The press is trying to make this into something it's not," he says.
The rioting, which police say involved more than 5,000 people rampaging through the university campus and East Lansing, was supposedly sparked by the university's loss to Duke University in the NCAA Final Four playoffs. So far, 83 people have been arraigned for allegedly participating in the rioting.
In addition to the two daily newspapers, the other news organizations to get a second subpoena include: the State News - the MSU student newspaper - and television stations WJBK, WKBD, and WXYZ in Detroit; WJRT in Flint; WILX in Onondaga outside Lansing; WLNS in Lansing; WWMT in Kalamazoo; and WZZM in Grand Rapids.
Steve Crosby, executive editor of the State Journal, says the newspaper intends to fight the subpoena. "At the beginning I was very surprised. I've never had a prosecutor try do that before. It has been considered crossing the line. In this case, I believe they were overwhelmed by the magnitude of the riot, and basically, there were 230 police officers out there, and they made a decision to protect life and as much property as they could. ... They made very little effort to arrest anybody and didn't dedicate a whole lot of resources to collecting evidence," says Crosby.
He says that the rioting should not have come as a surprise, since there had been talk and e-mails about such an incident.
"I didn't happen to have five photographers out there that night just for yucks. ... There were e-mails going on across the state at least a week beforehand. ... If you look back at earlier incidents, it sort of escalated to this run. There were smaller riots a short time beforehand, and apparently a certain group of people thought that we can go out there and act however I want," asserts Crosby.
Last month, an initial round of subpoenas for the unpublished photos and videotape was tossed out by the Michigan Supreme Court, which ruled that the prosecutor had issued the wrong type of subpoena. This time Dunnings issued the so-called "investigative subpoena" which is used by prosecutors to find evidence of criminal actions.
The Detroit Free Press attorney Herschel Fink, in a motion to quash the subpoenas, says that if the media is forced comply it "would annex news organizations as arms of the police, stripping them of their constitutionally protected independence and role as informers of the public, not the government." He said the law allowing investigative subpoenas exempts news media organizations, unless they are the target of the probe.
"Recognizing the sensitive nature of giving prosecutors this very broad power and the fact that it could come into conflict with the First Amendment, expressly limited the use of these subpoenas to broadcast and published material unless the news organization is itself the subject of the criminal inquiry," says Fink.

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