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the press and subpoenas: an overview By Marlena Telvick and Amy Rubin

Since 2001, dozens of subpoenas have been issued to journalists for sources and information on a range of stories, including the war on terror, steroids abuse in sports and business investigations. Is this evidence of a new political climate in which the press is at risk of losing its legal protections? What does a breakdown of the numbers and varieties of subpoenas add up to? FRONTLINE spent a few months looking into these questions, and here's what it found.

Then and Now: Law Enforcement-Press Relations

"In the 1950s, and earlier, law enforcement and the press had been sort of allies," says former prosecutor Stephen Bates, who worked for the independent counsel's office during the Whitewater investigation. In fact, journalism professor Mark Feldstein describes the case of a CBS anchorman who wrote in his memoirs that he was so tight with the cops, he would dress as one of them to gain access to crime scenes.

But by the 1960s -- a time of social turmoil and protests against an unpopular war in Vietnam -- law enforcement's relationship with the press changed, says Bates.

"Reporters of the '60s were more likely to have access to information that the police of the era didn't have, and therefore suddenly needed reporters' information. They had more trouble putting people inside the Black Panthers than they had in the Communist Party of the 1940s and '50s." As a result, says Bates, the government began subpoenaing reporters for their notes, outtakes and other material.

By the late 1960s -- the first years of the Nixon administration -- CBS and NBC alone were served with more than 120 subpoenas, according to a research paper Bates wrote for Harvard University. At the time, the Columbia Journalism Review warned of a "subpoena epidemic" that threatened to turn the press into a "de facto arm of the attorney general's office."

 

Why are reporters subpoenaed?

Subpoenas can be served on the news media by federal and state prosecutors, law enforcement, administrative agencies, and parties in criminal or civil lawsuits. In libel cases, reporters are often the defendants because the claim is that they published defamatory material about the plaintiff. With other civil suits, where one person is suing another for an alleged harm and the reporter is thought to have important information about that claim, a reporter being subpoenaed is involved as a "third party" to a case.

Media subpoenas seek various types of information including both published and unpublished materials [see sidebar]. In federal cases, the Justice Department advises that media subpoenas should be limited to asking reporters for verification of the accuracy of published materials except under "exigent circumstances" -- such as when a reporter is believed to have information about a crime that could not be obtained through other reasonable means.

Mark Corallo, former director of public affairs at the Justice Department, who was involved in approving media subpoenas under Attorney General John Ashcroft, categorizes two kinds of subpoenas: a "hostile" subpoena that seeks a reporter's confidential sources and a "friendly" subpoena, "where, for instance, you just need the tape of a broadcast from the 6:30 news. It's no big deal. It's been aired."

In court, prosecutors cannot rely on material that's already been published because news articles are, in essence, considered hearsay; a reporter could have misquoted sources or mischaracterized something in an article. Or in some investigations, such as the Valerie Plame CIA leak case, the prosecutor will request notes and the reporters' testimony because key witnesses -- like Tim Russert and Judith Miller -- never actually published anything.

 

The Justice Department's Guidelines on Media Subpoenas

Tasia Scolinos, director of public affairs at the Justice Department, says the government is very discriminating when it decides to issue "source" subpoenas. "Source subpoenas deal with media subpoenas that are asking a reporter for confidential source information," she explains. "To most reporters, that is really the holy grail. … And so those are certainly looked at with a very, very special eye."

Back in 1970, the Justice Department established a set of internal guidelines to serve as a check on overzealousness by federal prosecutors.

The guidelines recommend that efforts be made to negotiate with news outlets to obtain voluntary cooperation before issuing a subpoena and that "all reasonable attempts" be made "to obtain information from alternative sources."

Created to provide protection for the media, the guidelines advise that subpoena decisions should "strike the proper balance between the public's interest in the free dissemination of ideas and information and the public's interest in effective law enforcement and the fair administration of justice."

The Justice Department isn't the only federal agency that can subpoena journalists. In February 2006, the Security and Exchange Commission's San Francisco office subpoenaed Herb Greenberg of CBS's "MarketWatch," Carol Remond of Dow Jones Newswires and CNBC's James Cramer for unpublished communications -- including telephone records and e-mails -- related to the origin of stories covering online retailer Overstock.com. The subpoenas were later withdrawn and SEC Chairman Christopher Cox acknowledged the SEC "relies on aggressive investigative journalism to uncover wrongdoing in companies. Therefore, the SEC should do nothing to chill that work."

And the U.S. Army, in December 2006, subpoenaed two journalists -- Oakland, Calif. freelancer Sarah Olson and Gregg Kakesako of the Honolulu Star-Bulletin -- in the court martial of Lt. Ehren Watada, who was refusing deployment to Iraq. The reporters were asked to verify quotes they used in their stories. Press advocacy groups came to the defense of Olson and Kakesako, and the subpoenas were later withdrawn when Watada confirmed that the quotes were accurate, making the journalists' testimony obsolete.

 

Totaling the Subpoenas

Tracking how many reporters have been subpoenaed is an exercise in futility, according to prominent reporters' advocacy groups, including the Media Law Resource Center, the First Amendment Center, and The Reporters Committee for Freedom of the Press. "To the best of my knowledge, there is no way to figure out how many subpoenas have been served in federal courts," says Lucy Dalglish, executive director of the Reporters Committee in Arlington, Va.

For starters, subpoenas are not public documents. Any effort to calculate the total number of media subpoenas largely depends on self-reporting by the recipients of the subpoenas. Often reporters and media organizations do not want anyone to know they received a subpoena, especially if they work out a deal to testify and do not want it made public that they cooperated.

While the Justice Department keeps track of media subpoenas authorized by the U.S. attorney general, this doesn't include subpoenas issued by special prosecutors (according to Scolinos, these investigations are "walled off" from the department) or those requested by private individuals in civil lawsuits.

In response to a Freedom of Information Act (FOIA) request FRONTLINE submitted, the Justice Department reported that there were media-related subpoenas issued in "approximately 143 matters" between 1991 and October 2006. Of these, the U.S. attorney general approved fewer than 20 requests for media subpoenas seeking reporters' confidential sources.

But this number doesn't include some of the most prominent cases of the last six years because several were civil suits brought by private individuals or were handled by special prosecutors, including:

  • TV reporter James Taricani of WJAR in Providence, Rhode Island, who refused to name the confidential source who had provided a videotape capturing a politician accepting a bribe;

  • The Valerie Plame investigation, in which at least five journalists were subpoenaed;

  • A civil lawsuit brought by Steven Hatfill, a "person of interest" in the 2001 anthrax investigations, against the government, in which at least a dozen subpoenas were initially served on news organizations;

  • Nuclear scientist Wen Ho Lee's civil lawsuit against the government, in which six reporters were subpoenaed.

In these cases alone, according to press reports, more than 20 journalists or news organizations have been subpoenaed.

The Justice Department's Tasia Scolinos tells FRONTLINE the department has been "incredibly cautious and restrained" when issuing source-related subpoenas. According to Scolinos and FRONTLINE's FOIA request, between 1991 (the earliest year that the department began isolating statistics for source-related subpoenas) and 2000, there were fewer than 20 source-related subpoenas approved, roughly an average of 1.5 per year. Since 2001, Scolinos says the attorney general has approved source-related subpoenas four times, for an average of .666 per year.

However, the numbers Scolinos cites actually refer to the number of cases, not necessarily the total number of individual subpoenas. For example, in the year 2006, the Justice Department reports one case in which source-related subpoenas were approved by the attorney general. Yet in this case, involving the San Francisco Chronicle reporters covering the BALCO story, at least three subpoenas were issued (to reporters Mark Fainaru-Wada, Lance Williams, and the Chronicle).

 

FRONTLINE's Survey of News Organizations

The Reporters Committee for the Freedom of the Press used to conduct surveys to track media subpoenas, but discontinued the project for various reasons, including the relatively low percentage return on the questionnaires they sent out.

FRONTLINE had a similar experience in an informal straw poll: Of the dozen e-mail questionnaires sent to attorneys at some of the nation's most prominent media organizations, only a few responded and only one, Eve Burton, general counsel of the Hearst Corporation, provided any substantive numbers. According to Burton, from 2002 to 2004, her organization received only four or five subpoenas, but in the last two years, it skyrocketed to 84. Of those, only six attempted to seek the identity of a confidential source, and of those six, four were for the BALCO case.

Burton explains that the 84 subpoenas are an aggregate of those issued by law enforcement, plaintiffs' lawyers, grand jury investigations, state government and the federal government. Because the company owns newspapers, magazines and broadcast stations, she says the increased flow of subpoenas has become "a full-time job."

"We have what we call at the Hearst Corporation a subpoena task force now, where we actually decide how we're going to handle every single subpoena," says Burton.

Lee Levine, a founding partner in the law firm of Levine Sullivan Koch & Schulz in Washington, who has represented subpoenaed reporters in many cases including the Plame investigation, also spoke to FRONTLINE on the record.

Levine says his firm has seen a "material increase" in the number of subpoenas it is retained to respond to on behalf of news media clients. There are "definitely more subpoenas in federal court than previously, and definitely more subpoenas seeking the identities of confidential sources," says Levine. He cites the 2003 McKevitt v. Palasch case as a turning point. Influential U.S. Court of Appeals Judge Richard Posner issued an opinion in that case in which he applied a strict interpretation of the 1972 Branzburg v. Hayes Supreme Court decision to question the legal basis for a reporter's privilege. Judge Posner suggested that other courts had been wrong to side with journalists who refuse to answer federal subpoenas.

"There's no question that Reporters Committee has been getting many more calls in recent years from journalists who have received subpoenas requesting their source information," explains the Reporters Committee's Dalglish, who says the trend has been "especially pronounced" since 2004, the year subpoenas were first issued in the Plame investigation.

 

Seeking Wired's News

Reporters don't often talk about being sucked into prosecutions. But in 2001 Wired News Washington Bureau Chief Declan McCullagh blogged the entire chain of events on his Web site after being subpoenaed to fly to Washington state to testify in a criminal trial regarding articles he had written about the defendant in the case, James Dalton Bell.

In chronicling these events, McCullagh reveals what it's like to be on the receiving end. An e-mail from the assistant United States attorney, for example, explains that Attorney General Ashcroft had personally approved his subpoena and that instead of seeking any confidential sources, the government only wanted him to acknowledge that he wrote the articles, to review several of the statements which he attributed to the defendant in the trial, and verify that that Bell had in fact told him those things. McCullagh did testify but would not respond to questions outside the scope of the article, calling on his First Amendment privilege as a journalist.

 

Marlena Telvick is series associate producer for "News War," and Amy Rubin is an associate producer for Parts I and II. Additional reporting by Josh Mensch, associate producer for Parts I and II of "News War."

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posted feb. 27, 2007

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