Shield Laws Deflect Subpoenas p.16

By: Eileen M. Wirth Journalism professors study finds they protect
against the increasing barrage of subpoenas sp.

DESPITE A RECENT report from the Reporters Committee for Freedom of the Press (RCFP) about the increasing numbers of subpoenas being slapped on news organizations, the rise might be even more dramatic had it not been for state shield laws.
That's a major finding of a 1993 survey I conducted, to which 100 city editors of major newspapers in 48 states responded.
According to responses from editors who knew their states had a shield law (59), many newspapers routinely use shield laws to unofficially deter subpoenas or have them quickly dismissed.
Nearly half of the city editors in states with shield laws said that even casual reminders about the laws had prevented the issuance of some subpoenas. Here are examples of some of the ways city editors said their papers had used shield laws to deter lawsuits:
? "In most cases we have managed to rebuff it [the subpoena] before we went to court."
? "From most routine requests, even one by phone to written demands, we just point to the shield law and that takes care of it."
? "We haven't had to end up in court. Have managed to rebuff [the subpoena] before going to court."
? "There have been cases where we've reminded litigants that they must use up all other avenues before coming to us. That has worked."
? "Our legal department routinely writes letters to lawyers to remind them of shield laws."
? "A former reporter was subpoenaed to testify on a medical malpractice, but when our editor said we had the shield law, we didn't hear anymore from them."
? "Many times when a law enforcement officer or an attorney wants to see written notes, we just mention the shield law."
? "They wanted to subpoena a reporter on material he had. We were able to keep him from being subpoenaed by using our shield law."
The survey was sent to 216 selected newspapers. All fit at least one of the following criteria: circulations over 60,000, largest paper in a state, located in a state capital.
This sample ensured that all states would be represented by at least one newspaper, and that those papers surveyed would be most likely to do investigative reporting because of their size, importance in a state, or location near the state government.
Interviews with veteran reporters amplified this portrait of the deterrent value of state shield laws. They said the mere existence of such a law can give judges a tool to discourage lawsuits against news organizations.
James D. Fogarty, who formerly covered courts for the Omaha World-Herald, said he has heard judges informally remind lawyers about the Nebraska shield law.
Judges generally dislike suits against the media because such cases are high profile, expensive and time-consuming, Fogarty said. By reminding a lawyer about the shield law, a judge can implicitly indicate how he or she would react to such an action. This alone can cause some lawyers to reconsider issuing a subpoena.
It is also interesting to note that city editors from states with shield laws placed a much higher value on the laws as tools for encouraging investigative reporting than did their counterparts in states without shield laws.
Three out of four of the city editors polled in shield law states regarded the laws as "important" or "very important," compared with fewer than half the editors from non-shield law states.
Only 5% of the editors from shield law states rated the laws as unimportant, vs. 50% of the editors from non-shield states.
Nearly all city editors rated investigative reporting and the protection of confidential sources as "very important," so the difference in the importance they attached to shield laws cannot be attributed to a difference in journalistic values.
Twenty-nine states and the District of Columbia have shield laws, which generally give reporters and news organizations a limited immunity from being forced to disclose confidential sources or turn over unpublished materials to authorities.
The RCFP survey found that 52.1% of the 664 newspapers and 236 television stations responding to the survey were subpoenaed in 1993, compared with 43.9% in 1991. Some 59% of the subpoenas were issued in shield law states, RCFP reported.