By Mickey H. Osterreicher, Esq.
EAST AMHERST, NY – A recent incident in Kentucky involving a television station, a defendant in a shooting, and a District Court Judge illustrates the need for a standardized press shield law. Reports from the local media in Paducah, KY, indicate that the judge fined WPSD-TV $10,000 per day for not turning over unedited tapes (of interviews with witnesses to a shooting) to the defendant’s attorney. Within hours attorneys for the station were able to obtain a temporary restraining order from a higher court delaying the imposition of the fine and possible jail time for a vice president of the station, who was responsible for deciding to withhold the tapes.
At issue is whether or not the station is legally required to hand over these tapes, bringing the defendant’s Sixth Amendment right to a fair trial in direct conflict with the station’s First Amendment right to gather news. The Kentucky Revised Statute (Section 421.100) entitled Newspaper, radio or television broadcasting station personnel need not disclose source of information states in pertinent part that “no person shall be compelled to disclose in any legal proceeding or trial before any court, or before any grand or petit jury … the source of any information procured or obtained by him, and published in a newspaper or by a radio or television broadcasting station by which he is engaged or employed, or with which he is connected.”
In a previous case the Kentucky Court of Appeals held that the statute did not permit a reporter to refuse to testify about events he had observed personally, including the identities of those persons he had observed. That issue was presented to the U.S. Supreme Court in the seminal case of Branzburg v. Hayes, 408 US 665 (1972), where the high court held that “requiring newsmen to appear and testify before state or federal grand juries does not abridge the freedom of speech and press guaranteed by the First Amendment; and that a newsman's agreement to conceal criminal conduct of his news sources, or evidence thereof, does not give rise to any constitutional testimonial privilege with respect thereto.”
All of this raises the question – should there be a federal shield law? This is a topic that has been in the news recently in cases involving reporters for Time magazine and The New York Times, who are being held in contempt as part of a federal investigation into the disclosure of a CIA officer’s identity. In another recent case, a Rhode Island television reporter was held in criminal contempt in federal court and sentenced to home confinement because he would not reveal the identity of the person who gave him a tape in a bribery case. These high profile cases, along with those of approximately 30 other journalists facing federal prosecution for refusing to testify in federal courts, have led legislators in both the House and Senate to introduce the Free Flow of Information Act.
Currently 31 states have various statutes that protect reporters from being compelled to testify and disclose sources of information in court, but there is no federal law. The Act would create a federal journalists’ qualified privilege for “a covered person” defined as “(A) an entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic, or other means and that (i) publishes a newspaper, book, magazine, or other periodical; (ii) operates a radio or television broadcast station (or network of such stations), cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier; or (iii) operates a news agency or wire service; (B) a parent, subsidiary, or affiliate of such an entity; or (C) an employee, contractor, or other person who gathers, edits, photographs, records, prepares, or disseminates news or information for such an entity.” For purposes of the Act, the term “document” is defined as “writings and recordings that consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation” and photographs that include “still photographs, X-ray films, video tapes, and motion pictures” as defined in the Federal Rules of Evidence (Rule 1001).
The bill, introduced in February 2005, states that “no Federal entity may compel a covered person to testify or produce any document in any proceeding or in connection with any issue arising under Federal law unless a court determines by clear and convincing evidence, after providing notice and an opportunity to be heard to the covered person (1) that the entity has unsuccessfully attempted to obtain such testimony or document from all persons from which such testimony or document could reasonably be obtained other than a covered person; and (2) that (A) in a criminal investigation or prosecution, based on information obtained from a person other than a covered person (i) there are reasonable grounds to believe that a crime has occurred; and (ii) the testimony or document sought is essential to the investigation, prosecution, or defense; or (B) in a matter other than a criminal investigation or prosecution, based on information obtained from a person other than a covered person, the testimony or document sought is essential to a dispositive issue of substantial importance to that matter.” With regard to limitations on the content of the information, the bill states that “the content of any testimony or document that is compelled under subsection (a) shall, to the extent possible (1) be limited to the purpose of verifying published information or describing any surrounding circumstances relevant to the accuracy of such published information; and (2) be narrowly tailored in subject matter and period of time covered.”
Just this week former Senator Bob Dole endorsed the bill, writing on the op-ed page of The New York Times: “As someone with a long record of government service, I must admit that I did not always appreciate the inquisitive nature of the press. But I do understand that the purpose of a reporter's privilege is not to somehow elevate journalists above other segments of society. Instead, it is designed to help guarantee that the public continues to be well informed." Last week the American Bar Association House voted to support a federal reporters’ shield law. In a statement, ABA president, Michael S. Greco, said: "Our action today acknowledges the important role of journalists and the media in providing the public with significant information to ensure an informed democracy, and reporters’ need to be able to protect sources in order to get that information." But the enactment of such a law is not without its drawbacks. Writing in The Kansas City Star, columnist E. Thomas McClanahan said: “A federal shield law would invite Congress to begin parsing the First Amendment. Lawmakers would inevitably decide where key lines should be drawn, such as who should be included in a shield law. Such a debate ought to make First Amendment supporters more than queasy."
Applying the proposed shield law to the current Kentucky case would be a matter of striking the proper balance between the defendant’s right to a fair trial, the public’s interest in the efficient administration of justice, and the television station’s First Amendment protection in gathering the news. Once the station asserts its qualified privilege, the court must first decide if it is an entity covered by the statute. With that prong of the test satisfied the court should look to see if the “document” being sought is protected, and since recorded videotape falls under the definition of both “document” and “photograph” the court can proceed with the substantive part of its analysis.
As the defense attorney and quite possibly the prosecutor are seeking to obtain the unedited interviews that the station did with witnesses to an alleged crime, they must prove by “clear and convincing evidence” that they have been “unsuccessful” in their attempts to obtain interviews with those witnesses on their own. This matter being a criminal investigation as well as a criminal prosecution (and it having been established, from a person other than the television station, that a crime has occurred), the burden now shifts to either the prosecution or the defense (or both) to prove by “clear and convincing evidence” that the interviews on the unedited tapes are “essential to the investigation.” It is also their burden to prove under the same evidentiary standard that the need for the interviews on tape is for “the purpose of verifying broadcast information or describing any surrounding circumstances relevant to the accuracy of such broadcast information; and be narrowly tailored in subject matter and period of time covered.”
Obviously, these incidents need to be reviewed on a case-by-case basis and it would be very helpful to have a consistent standard of review such as the one in the proposed Free Flow of Information Act. Therefore, it is critical to remember Justice Louis Powell, Jr.’s, concurrence in Branzburg that “without some protection for seeking out the news, freedom of the press could be eviscerated.”
Mickey H. Osterreicher has been an NPPA member since 1972 and is on the Advocacy Committee. He has been a photojournalist for over 30 years in Buffalo, NY, where he now practices law. He can be reached at [email protected].