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					                          Reporter’s Privilege Cases in State Courts

California

In re Search Warrant Issued December 12, 2009

In December 2009, police arrested a photographer covering a protest for The San Francisco Bay
Area Independent Media Center and confiscated his camera after the protest resulted in damage
to the home of the Chancellor of UC Berkeley. While imprisoned, police obtained a search
warrant to retain the photographs of the protest that were stored on the camera. The
photographer, David Morse, subsequently moved to quash the search warrant and the return of
property.

On June 18, 2010, the judge ordered police to return all copies of the photographs taken from
Morse‟s camera, ruling that the search had been improper.

Illinois

State v. McKinney

The Center on Wrongful Convictions, part of a legal clinic at Northwestern University, filed a
petition for a new trial on behalf of the defendant, imprisoned for almost 30 years for murder,
after undergraduate journalism students at the university uncovered evidence suggesting that he
had been wrongfully convicted. The investigation by the students, conducted under the auspices
of the school‟s Medill Innocence Project, spanned three years. The students published their
findings on the project‟s website and also spoke to a reporter for the Chicago Sun-Times, which
resulted in a front-page article on the defendant‟s case in the paper in November 2008.

In May 2009, prosecutors subpoenaed David Protess, a journalist and professor who heads the
Medill Innocence Project, and Northwestern University‟s Medill School of Journalism, seeking
Protess‟ testimony and a broad range of documents, including records of interviews, Protess‟
communications with the students, receipts and other expense records, and the students‟ grades.
Multiple teams of students participated in the investigation over the three-year period, all of
whom had since graduated.

Protess turned over copies of published audio tapes and videotapes created as a result of the
investigation. Protess and the University, however, moved to quash the subpoena for the other
documents and Protess‟ testimony, arguing that the subpoenas were overly broad and unduly
burdensome, and that the subpoenaed information was protected by the state‟s shield law.
Eighteen media organizations filed a motion in support of the motion to quash, as did the Student
Press Law Center, the Society of Professional Journalists, College Media Advisers, Inc. and the
Association for Education in Journalism and Mass Communication.

Prosecutors argued that the students could not claim protection under the state‟s shield law as
they were not journalists. Prosecutors alleged that students had paid witnesses and argued that
the subpoenaed information was necessary to determine whether the students believed they
would receive better grades if they uncovered evidence exonerating the defendant.
In February 2010, the Center on Wrongful Convictions filed an amended petition for a new trial,
which withdrew some of the evidence uncovered by the students. Protess and the University
hoped this would result in the subpoenas being withdrawn, but they were not.

Prosecutors demanded copies of materials that had been given to the Center on grounds that
Protess and the students had waived application of the reporter‟s privilege to those materials.
Protess and the University disagreed on what had been turned over to the Center. They
subsequently retained separate counsel.

In November 2010, the University – over the objections of Protess – provided prosecutors with
roughly 800 pages of student documents.1 The case continues as prosecutors seek additional
materials.

Horstman v. Hoffman

The plaintiffs brought suit under the Illinois‟ Hate Crimes Statute, alleging certain actions
committed by the defendant were motivated by anti-Semitism, as well as for assault and battery,
intentional infliction of emotional distress and stalking. The dispute between the two parties –
neighbors – stems from construction traffic caused by renovations at the plaintiffs‟ home.

Jeff Long, a reporter with the Chicago Tribune, and Christopher Peterson, a reporter with
Winnetka Talk, both interviewed the plaintiffs in June 2009 and published articles in their papers
about the plaintiffs‟ allegations of anti-Semitism against the defendant. Threatening comments
against the defendant were posted on the Tribune website (and removed), and the defendant
received a death threat and his family received harassing phone calls. He subsequently filed a
counterclaim for defamation, false light, malicious prosecution, intentional infliction of
emotional distress and assault and battery against the plaintiffs.

The defendant subpoenaed both publications, seeking all documentation relating to the two
articles, including drafts, correspondence, notes and website postings. The newspapers claimed
all such information was privileged under the Illinois Reporter‟s Privilege Act. The defendant
moved to divest the two reporters of the privilege and to depose them.

On November 16, 2010, the court denied the motion, finding that the defendant failed to meet the
requirements under the shield law to divest the reporters of the privilege.2 The statute requires
that all other available sources of information be exhausted and either that “disclosure of the
information sought is essential to the protection of the public interest involved or, in libel or
slander cases, the plaintiff‟s need for disclosure of the information sought outweighs the public



1
  The materials included a secret audio recording of an interview with a potential murder suspect without the
person‟s consent. Prosecutors argued the recording was illegal as Illinois law requires consent; Protess argued the
recording was permissible as Illinois law permits recording without consent if there is reason to believe the person
committed a crime and the recording may produce evidence of the crime.
2
  Horstman v. Hoffman, No. 09-L-4863 (Ill. Cir. Ct. Cook Cty. Nov. 16, 2010).


                                                          2
interest in protecting the confidentiality of sources of information used by a reporter as part of
the news gathering process.”3

The court also found that the defendant failed to state a claim for defamation and false light. It
held that “an examination of the Article reveals that all statements attributed to plaintiffs therein
are not defamatory per se, or are substantially true, or are derived directly from a publicly filed
complaint in this case, and thus subject to an absolute privilege for the complaint and fair report
privilege for the summary of the complaint.”4 The court found that the false light claim failed for
the same reasons.5

The court characterized the defendant‟s subpoena as follows: “The defendant essentially seeks
Long‟s deposition to search for possible counterclaims against the plaintiffs, but the very purpose
of the Act is to prevent parties from seeking evidence from reporters in the first instance – a
practice which would inevitably have a chilling effect on the newsgathering process by
effectively turning the media into private investigators for civil litigants.”6

Kansas

Gatehouse Media v. Love

Claire O‟Brien, a reporter with the Dodge City Daily Globe, conducted a jailhouse interview of a
suspect charged with second-degree murder and attempted murder. In October 2009, the paper
ran an article about the murder, in which the suspect, Sam Bonilla, claimed he acted in self-
defense. It quoted a confidential source as saying that one of the victims has “a base of support
that is well-known for its anti-Hispanic beliefs” and the supporters have a supply of
semiautomatic weapons. The article also quoted a bail bondswoman as saying that people had
warned her that Bonilla‟s life would be in danger if he was released from jail.

In addition to the murder investigation, prosecutors opened an investigation into the alleged
threats against Bonilla and the allegedly armed hate group, and issued two subpoenas to O‟Brien
in October 2009. The first sought her notes, tapes and other documents from the interview with
Bonilla and the second sought her testimony. O‟Brien moved to quash the subpoenas based on
the constitutional reporter‟s privilege.

On December 9, 2009, the court denied the motion to quash, citing In re Pennington7 and the
majority opinion in Branzburg v. Hayes8 as requiring in criminal cases only that the subpoenaed
information be relevant.9 The court found that evidence concerning Bonilla‟s perceptions and
why he felt threatened to be relevant, as well as information concerning possible violence against


3
  735 ILCS 5/8-907(2).
4
  Horstman, No. 09-L-4863, at 8.
5
  Id.
6
  Id. at 9.
7
  224 Kan. 573 (1978).
8
  408 U.S. 665 (1972).
9
  In the Matter of an Inquisition to Inquire into Certain Alleged Violations of the Laws of the State of Kansas, No.
09-MR-163 (Kan. Dist. Ford Cty. Dec. 9, 2009).


                                                          3
Hispanic citizens to be relevant.10 Under a balancing test, the court found that the need for the
information outweighed the privilege for confidentiality.11

Dismissing O‟Brien‟s claims that testifying and turning over her notes and other materials to the
prosecutors would negatively impact her future newsgathering, the court found that “In this
situation, there is no limitation directed toward what was published and no efforts are being
made to limit what the Dodge City Daily Globe will publish in the future.”12

On January 19, 2010, the Kansas Supreme Court granted a temporary stay of enforcement of the
subpoenas. On February 2, the Kansas Supreme Court denied the stay in a one-paragraph
order.13

O‟Brien was scheduled to testify on February 10, but she failed to appear in court. She was
subsequently held in contempt and fined $1,000/day. GateHouse Media, the publisher of the
Dodge City Globe, expected her to appear and had an attorney present at the hearing. The
publisher released a statement saying that “Ms. O‟Brien decided to pursue a different course of
action this morning, so GateHouse‟s involvement in the legal proceedings has, by her choice and
her specific demand, ended.”

O‟Brien appeared at a hearing two days later and apologized to the court for failing to appear at
the February 10 hearing. She testified about her interview with Bonilla after her confidential
source revealed himself to authorities on February 11 and released her from the pledge of
confidentiality. The judge rescinded O‟Brien‟s contempt citation and the fine.

Bonilla subsequently entered a guilty plea, ending speculation that prosecutors would call on
O‟Brien to testify at trial.

Ruggiero v. Moonwalks for Fun

The plaintiff brought suit against the defendant, the operator of an indoor recreational facility,
where her five-year old son was killed when he was launched from an inflatable ride. The
Wichita Eagle published a story in May 2010 by Suzanne Perez Tobias that relied on two
confidential sources – identified as former employees of the facility – who said that they were
taught to launch kids from the ride.

The plaintiff issued a subpoena to Tobias seeking the names of her confidential sources.

At a hearing on October 26, 2010, the court ruled that the plaintiff could not overcome the
Kansas shield law as alternative sources for the information had not been exhausted. (There was
no written decision.)

Louisiana

10
   Id. at 3-4.
11
   Id. at 4.
12
   Id. at 2.
13
   Gatehouse Media Kansas Holdings II, Inc. v. Love, No. 103, 699 (Kan. Feb. 2, 2010).


                                                        4
State v. Sarrio

ITV Studios produces a non-fiction show, Steven Seagal: Lawman, which follows members of a
local sheriff‟s office investigate crimes. It airs on the A&E Network. While accompanying
officers on a routine patrol in July 2009, ITV producers filmed the defendant‟s arrest. (Officers
pulled over to the defendant‟s parked car and saw a bag of white powder in plain view when they
ordered the defendant to exit the car; the powder tested positive for cocaine). None of the
footage from the defendant‟s arrest aired on the show.

In November 2009, ITV Studios received a subpoena from the defendant seeking all footage of
his arrest.14 In accordance with Louisiana‟s shield law statute, ITV Studios served written
objections to the subpoena to the defendant. The defendant responded by filing a three-
paragraph motion to compel, which failed to provide any support for the subpoenaed
information. In turn, ITV Studios filed a motion to quash.

On March 5, 2010, a judge ruled that the show met the definition of news, providing protection
under the state‟s shield law. (There was no written decision.)

Montana

State v. Winter

Prosecutors charged the 17-year old defendant with deliberate homicide in connection with a
March 2009 car crash resulting in the death of a pregnant woman and her 13-year old son. They
allege she intentionally drove into oncoming traffic in an attempt to commit suicide.

The defendant moved for a change in venue, arguing that articles on the case in the Daily Inter
Lake have tainted the jury pool and that letters to the editor and comments posted on the paper‟s
website show that county residents could not be fair (some of the comments called for the death
penalty). In September 2010, the defendant subpoenaed the paper‟s publisher, Rick Weaver, and
managing editor, Frank Miele, to testify at the venue hearing.15

Before the hearing, the paper filed a motion to quash the subpoenas for the testimony of the
publisher and editor, as well as the testimony of reporter Lynette Hintze in the event she is later
served with a subpoena, based on the state‟s shield law. The defendant filed a motion to compel
and for contempt after Weaver and Miele failed to appear at the venue hearing.

On October 7, 2010, the court denied the paper‟s motion to quash and granted the defendant‟s
motion to compel, ordering Weaver and Miele to provide limited testimony as to the paper‟s
14
   The defendant had earlier subpoenaed the Senior Vice President of ITV for the footage and later subpoenaed
Steven Seagal.
15
   The defendant also subpoenaed a letter writer and seven online commenters to testify; her counsel had obtained IP
addresses and registration information on the online commenters through an earlier, uncontested, subpoena to the
paper. The website‟s terms and conditions of use state that “The Administrator may use the information it obtains
relating to you including your IP address, name, mailing address, e-mail address and use of the Site, for his internal
business and marketing purposes.”


                                                          5
circulation and readership.16 Finding that the shield law does not contain an “absolute” privilege,
the court ruled that “[t]here is no authority for the proposition that the privilege encompasses
immunity for a publisher and managing editor of a newspaper from appearing in court in
response to a subpoena or from testifying to business matters, such as readership and circulation
information, which are not facts gathered or obtained for the purpose of processing information,
such as creating a news article, in the course of the newspaper‟s business.”17 Weaver and Miele
subsequently testified as to the size of the paper‟s paid circulation.

New Hampshire

The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc.

The defendant, which operates a website ranking businesses in the mortgage industry, reported a
story in August 2008 suggesting that the plaintiff was under investigation by the state banking
department and revealing details from a document filed with the department that expressly stated
the document “shall not be made public.” Following publication of the story, an anonymous
commenter posted comments on the defendant‟s website accusing the plaintiff‟s president of
fraud.

The plaintiff sought an injunction prohibiting the defendant from publishing the document and
the identity of the person who provided the document to the defendant, as well as the identity of
the anonymous commenter.

On March 11, 2009, the Superior Court granted the plaintiff‟s requests.18 It ordered the
defendant not to publish the document filed with the banking department and to disclose the
identity of the confidential source of the document and the identity of the anonymous
commenter.19 It also ordered the defendant to turn over any other documents it received from the
confidential source and not to re-publish certain “false and defamatory postings” by the
commenter.20

The defendant website received no sympathy from the court. It found the plaintiff‟s request to
be “reasonable” and characterized the defendant‟s refusal as a “knee-jerk reaction,” ”akin to …
us[ing] a sledgehammer to kill an ant.”21 It wrote that “[o]ne would hope that the ideals of truth
and justice are not lost in the respondent‟s desire to protect its right to publish anything without
consequence to the provider of unauthorized and defamatory information.”22

The court also dismissed the defendant‟s First Amendment arguments:



16
   State v. Winter, No. DC-09-424(B) (Mont. Dist. Flathead Cty. Oct. 7, 2010).
17
   Id. at 4.
18
   The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., No. 08-E-572 (N.H. Sup. Ct.
Rockingham Cty. Mar. 11, 2009).
19
   Id. at 5-6.
20
   Id. at 6.
21
   Id. at 3-4. The court rejected the defendant‟s assertion that it was a member of the press. Id. at 4.
22
   Id. at 4-5.


                                                        6
                 This ruling should not be considered to be an attack on the press.
                 Rather it should send the following message. If persons or entities
                 choose to provide legitimate publishers with information they
                 know or should have known is either unauthorized or defamatory,
                 they may be subject to legal process even though the publisher of
                 the information may not. The maintenance of a free press does not
                 give a publisher the right to protect the identity of someone who
                 has provided it with unauthorized or defamatory information. At
                 its core this is not even a press issue; this Court has not concluded
                 that the press has any responsibility to “police” the information it
                 is given. Rather the issue here is notice to individuals that they
                 may well have to accept the responsibility of their actions in a civil
                 court if they elect to seek to disseminate through the press any
                 unauthorized or defamatory material. They cannot attempt to
                 invoke the power of the press to hide their improper actions.23

On May 6, 2010, the New Hampshire Supreme Court vacated in part and reversed in part the
lower court‟s ruling.24 It rejected the plaintiff‟s contention that the defendant could not claim
protection under the reporter‟s privilege because it is not an established media entity nor is it
engaged in investigative reporting, ruling that “[t]he fact that Implode operates a website makes
it no less a member of the press.”25 The court cited Branzburg: “The informative function
asserted by representatives of the organized press … is also performed by lecturers, political
pollsters, novelists, academic researchers, and dramatists.”26

Recognizing that the Supreme Court had long earlier recognized the existence of a reporter‟s
privilege in civil proceedings involving the press as a non-party, it noted that the court had not
yet established a standard by which to determine whether a plaintiff can overcome the privilege
in defamation actions where the press is a non-party. The court cited the balancing test set forth
in Bruno & Stillman, Inc. v. Globe Newspaper Co.,27 a First Circuit decision, as the one to apply
in defamation actions seeking the identity of anonymous press sources. It ruled that the trial
court erred in ordering the disclosure of the confidential source of the document without
analyzing applicability of the privilege or conducting any balancing of interests.28 The Supreme
Court vacated the lower court‟s order for disclosure of the confidential source and remanded.

With respect to evaluating requests for the identity of anonymous posters who post allegedly
defamatory content, the Supreme Court cited Dendrite International, Inc. v. Doe Number 3,29 as
the “appropriate standard by which to strike the balance between a defamation plaintiff‟s right to
protect its reputation and a defendant‟s right to exercise free speech anonymously.30 The court


23
   Id. at 6.
24
   The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., 999 A.2d 184 (N.H. May 6, 2010).
25
   Id. at 4.
26
   Id.
27
   633 F.2d 583 (1st Cir. 1980).
28
   Mortgage Specialists, 999 A.2d at 191.
29
   775 A.2d 756 (N.J. Super Ct. App. Div. 2001).
30
   Mortgage Specialists, 999 A.2d at 193.


                                                        7
vacated the lower court‟s order for disclosure of the identity of the anonymous commenter and
remanded.

Finding that the lower court failed to “analyze th[e] issue in light of the newsgathering
privilege,” the Supreme Court also vacated the trial court‟s order that the defendant turn over any
other documents it received from the confidential source and remanded.31

Finally, the Supreme Court reversed the lower court‟s restriction on publication of the document
filed with the banking department, characterizing it as a “prior restraint that „freezes‟ speech at
least for a time.”32 It also reversed the restriction against republishing the postings by the
commenter.33

New Jersey

Too Much Media, LLC v. Hale

The plaintiff brought a defamation suit against the defendant for certain comments posted by her
on message boards. The plaintiff provided software that enabled websites to communicate with
each other for business and advertising purposes, including customer tracking software used on
internet pornography websites. Major media organizations reported on security breaches
involving the plaintiff‟s systems that potentially enabled hackers to access information about
customers of adult websites. The defendant, a private investigator and life coach based in
Washington, commented on the plaintiff‟s security breaches. In some instances, citing inside
information, her comments accused the plaintiff‟s owners of fraud, physically threatening others,
incompetence and willful abuse.

The defendant stated that she “began researching and investigating the online adult entertainment
industry for purposes of informing and protecting the public” and was “prompted by the
significant amount of unsolicited, adult-oriented spam that she, her children and other members
of the community were receiving.”34 She stated that she operated a few weblogs in connection
with her work as a private investigator, operated message boards and had published articles in
the Wall Street Journal and major magazines, including Business Week and Computer World.35
She also started a website, Pornafia, to investigate criminality and abuse in the online adult
industry, but never published her findings on the site.

On June 30, 2009, the court denied the defendant‟s motion for a protective order barring the
plaintiff from asking during a deposition about her sources for information she posted on
message boards about the plaintiff.36 The court held that she failed to make a prima facie
showing that she qualified for protection under the state‟s shield law as someone “engaged on,
engaged in, connected with, or employed by news media for the purpose of gathering, procuring,
31
   Id. at 193-94.
32
   Id. at 196.
33
   Id. at 197.
34
   Certification of Shellee Hale 3, Too Much Media, LLC v. Hale (N.J. Sup. Ct. Monmouth Cty. Mar. 4, 2009).
35
   Id. at 2-3.
36
   Too Much Media, LLC v. Hale, 2009 N.J. Super. Unpub. LEXIS 2291 (N.J. Sup. Ct. Monmouth Cty. June 30,
2009).


                                                       8
transmitting, compiling, editing or disseminating news for the general public.”37 It faulted her
for not giving any details about the work she published in major publications, found she had
made “significant untruthful statements” during her testimony at a hearing and held her
certification to be a “„sham affidavit‟ entitled to no credence.”38

The court likened comments on message boards to comments under an article published online,
and found that one who makes such comments was not qualified to receive the same protection
as the author of an article published online:

                 There is no fact-checking required, no editorial review, and so little
                 accountability for the statements posted that it is virtually
                 impossible to discern the author or source of the posts. To extend
                 the newsperson‟s privilege to such posters would mean anyone
                 with an email address, with no connection to any legitimate news
                 publication, could post anything on the internet and hide behind
                 the Shield Law‟s protections. Certainly, this was not the intention
                 of the Legislature in passing the statute.39

The defendant did not contact the plaintiff to hear its side of the story, which the court found
“does not suggest the kind of journalistic objectivity and credibility that courts have found to
qualify for the protections of the Shield Law.”40

The defendant also filed a motion to dismiss, which the court denied.

On September 11, 2009, a judge denied the defendant‟s motion for reconsideration, ruling that he
did not have discretion to consider the motion and pass on the findings of fact made by the now-
retired trial judge who decided the defendant‟s motion for a protective order.41 He advised the
parties to go to the appellate court.

On April 22, 2010, the appellate court affirmed the lower court‟s holding that the defendant
failed to qualify for protection under the state‟s shield law.42 Recognizing that new media and
blogging have complicated what and who may claim the privilege, the court ruled that one must
do more than simply claim to be a journalist: “Here, the only evidence in support of defendant‟s
claim that she is a newsperson is her own self-serving characterization and testimony as to her
intent in gathering information, which the trial court found not credible, a determination to which
we defer.”43 The court noted that the defendant failed to produce notes of conversations,
meetings or interviews with sources and contacts and that she “never identified herself to any of


37
   Id. at *16.
38
   Id. at *13 (citing Shelcusky v. Garjulio, 172 N.J. 185, 194 (2002)).
39
   Id. at *14-15.
40
   Id. at *15. Because she never published her findings on the Pornafia site, the court doubted her intention to
disseminate news to the public.
41
   Transcript of Record, Too Much Media, LLC v. Hale, No. Mon-L-2736-08 (N.J. Sup. Ct. Monmouth Cty. Sept.
11, 2009).
42
   Too Much Media, LLC v. Hale, 993 A.2d 845 (N.J. Super. App. Div. Apr. 22, 2010).
43
   Id. at 859.


                                                         9
her so-called sources as a reporter or journalist so as to assure them their identity would remain
anonymous and confidential, a key factor in the application of the newsperson‟s privilege.”44

The court also concluded that posting comments online does not make one a journalist.45

The court rejected the defendant‟s argument that the First Amendment provided an independent
basis for protection against disclosure of her sources. Noting that the New Jersey “shield law is
certainly no less protective” than the “qualified First Amendment privilege recognized in
Branzburg,” it saw no difference between the two privileges.46

The defendant filed an appeal to the Supreme Court of New Jersey. The American Civil
Liberties Union of New Jersey filed an amicus brief (in support of neither party), arguing that the
appellate court‟s decision “lays out an overly-narrow definition of the reporter‟s privilege that
fetters the successful invocation of the privilege to obsolete models of what constitutes the news
media.”47 The Reporters Committee for Freedom of the Press, Gannett and the Society of
Professional Journalists also filed an amicus brief, similarly arguing that the interpretation of the
state‟s shield law in the opinion was problematic.48

North Carolina

University of North Carolina Television

In July 2010, the Senate Judiciary Committee issued a subpoena to the University of North
Carolina Television and its senior legislative correspondent, Eszter Vajda, seeking Vajda‟s
attendance and the attendance of the station‟s general manager at the next committee meeting,
just days away, together with footage from an unaired piece about Alcoa‟s local activities and the
impact on the environment. Alcoa was in the process of renewing its federal license to operate
hydroelectric plants in the area, which some state legislators opposed in order to bring the plants
under state control.

North Carolina G.S. 120-19 requires public agencies to provide information sought by a
legislative committee. Capitolbeat, an association of reporters covering state and local
governments, sent a letter to North Carolina senators opposing the subpoena, arguing that the
state‟s shield law supersedes the statute requiring compliance.49

The station complied with the subpoena and turned over 13 hours of edited footage. A UNC-TV
spokesperson said that “We are a state agency because we‟re part of the university system. State
law requires state agencies to comply with requests for information from the General Assembly.”

44
   Id.
45
   Id. at 860-61.
46
   Id. at 861.
47
   Brief of Amicus Curiae American Civil Liberties Union of New Jersey, Too Much Media, LLC v. Hale, No. A-7-
10 (N.J., filed Dec. 6, 2010).
48
   Brief of Amici Curiae The Reporters Committee for Freedom of the Press, et al., Too Much Media, LLC v. Hale,
No. A-7-10 (N.J., filed Dec. 7, 2010).
49
   Vajda serves on the Board of Capitolbeat.



                                                      10
Because of the immediate deadline for appearing at the Committee meeting and turning over the
footage, the spokesperson said that the station felt it had no time to build a legal defense to the
subpoena.

Tennessee

State v. Gutierrez

Gangland Productions conducted a jailhouse interview with the defendant, charged with the 2007
murder of a rival gang member, for Gangland, a non-fiction show about street gangs that airs on
the History Channel. In an episode that aired in August 2009, the defendant said his gang “did
what we had to do.”

In December 2009, prosecutors sent a letter to Gangland Productions requesting the raw footage
from the interview with the defendant, which Gangland declined to produce. The State
subsequently obtained a “certificate of materiality of out of state witness” from the court to
compel the CEO of A&E Television Networks, which owns the History Channel, to appear at the
defendant‟s trial together with all footage from the interview of the defendant and all documents
with the names of those employed in producing the episode. Pursuant to the certificate, the
Supreme Court of New York issued an order to show cause why the CEO should not appear at
the defendant‟s trial. Prosecutors withdrew the NY order after Gangland Productions agreed it
would accept service of a subpoena.

Gangland Productions and A&E Television Networks filed a motion to quash the subpoena
based on the state‟s shield law.

On March 30, 2010, the court denied the motion to quash and ordered Gangland Productions to
produce the outtakes from the defendant‟s interview relating to the murder.50 It found that the
State had met the test for divestiture of the privilege under the shield law by clear and convincing
evidence: (1) there is probable cause to believe that the information sought is “clearly relevant to
a specific probable violation of the law,” (2) the information sought cannot be reasonably
obtained by alternative means and (3) there is a compelling and overriding public interest in the
information.51 In addressing the first element, the court ruled that the raw footage was necessary
to “give context to Defendant‟s broadcasted statements about the August 26, 2007 homicide.”52
In addressing the second element, the court ruled that in the interview, the defendant gave
“voluntary admissions that cannot be duplicated through subsequent questioning.”53 Finally, in
addressing the third element, the court ruled that “the people of Tennessee have an interest in
seeing that murders in Tennessee are thoroughly investigated and that the State pursues justice
by prosecuting individuals suspected of violent crimes.”54



50
   State v. Gutierrez, No. 2008-A-505 (Tenn. Crim. Davidson Cty. Mar. 30, 2010).
51
   Tenn. Code Ann. § 24-1-208.
52
   Gutierrez, No. 2008-A-505, at 17.
53
   Id. at 20.
54
   Id. at 22.


                                                       11
The court offered Gangland Productions the option of either providing the raw footage to the
State, the defendant and the court simultaneously or to the court first for in camera review to
determine what, if anything, needs to be redacted.

A&E appealed the decision, but in July 2010, the network decided to drop the appeal and posted
the raw footage of the interview with the defendant on its website.

Utah

State v. Roman

Pat Reavy, a reporter with the Deseret News, wrote a story in January 2010 about a search
warrant issued in connection with the investigation of the murder of a local sheriff‟s deputy. The
story revealed new information about one of the suspects.

The Salt Lake City Police Department had released the search warrant and other documents to
the paper after it submitted a proper “government records access and management” request.
Rule 40(i)(1) of the Utah Rules of Criminal Procedure requires that search warrants and related
documents remain sealed for 20 days after issuance of the warrant (unless otherwise extended or
reduced); the police department released the materials to the paper before expiration of the 20-
day period.

Two days after the story was published, prosecutors filed a motion to seal all search warrants in
connection with the case, arguing that the release of the information to the paper could hamper
their investigation and alleging that the story violated a court order.

In March 2010, Reavy received a subpoena from prosecutors seeking his testimony. The paper
filed a motion to quash the subpoena pursuant to Rule 45 of the Utah Rules of Civil Procedure,
which governs the issuance of subpoenas, and a motion for a protective order prohibiting the
State from compelling the reporter‟s testimony.

On May 4, 2010, the court granted the motion to quash, finding no basis for Reavy‟s testimony.55
It placed blame for the release elsewhere: “The Salt Lake Police Department could have
classified the requested documents as either private, controlled or protected pursuant to
GRAMA, and probably should have, which would have prevented their release to the media.”56

Virginia

The Breeze

In April 2010, police executed a search warrant at the offices of The Breeze, James Madison
University‟s student newspaper, and copied hundreds of photos taken at an off-campus gathering



55
     State v. Roman, No. 101700001 and 101700003 (Utah Dist. Millard Cty. May. 4, 2010).
56
     Id. at 4.


                                                        12
that turned into a riot.57 The gathering, called Springfest, attracted more than 8000 and resulted
in police officers being injured and damage to property. Roughly one-third of the photos copied
were not images from the gathering.

The paper asserted that the seizure violated the federal Privacy Protection Act and the reporter‟s
privilege. Prosecutors agreed to turn over the seized photographs to the paper‟s faculty advisor
while the two sides negotiated.

In June 2010, the paper and prosecutors reached a settlement. The paper agreed to hand over 20
unpublished photos and the State agreed to pay $10,000 in the paper‟s legal fees, as well as
return the other photos. Prosecutors agreed to use subpoenas for information from news
organizations in the future, unless there is “an imminent need to prevent the loss of life or threat
of bodily injury.”

Washington

State v. Monfort

Jonathan Martin, a reporter with the Seattle Times, conducted two jailhouse interviews with the
defendant, who was charged with the murder of a police officer. In July 2010, the defendant
sought a subpoena for Martin‟s notes and other materials from the interviews, claiming that the
notes were necessary as the reporter would likely be called as a witness for the prosecution. The
State said it would not call the reporter as a witness.

The paper filed a motion opposing the issuance of the subpoena based on the state‟s shield law.

On August 20, 2010, a judge ruled in favor of the paper and declined to issue the subpoena.
(There was no written decision.)




57
  Prosecutors obtained a search warrant after the paper‟s editor-in-chief refused a phone request from prosecutors
that she hand over the photos.


                                                         13
               Cases Involving Anonymous Commenters on Newspaper Websites

Kentucky

Clem v. An Unknown Person

In August 2008, the Richmond Register ran a story about the plaintiff being escorted from the
mall because her dress was too short (which, ironically, had been purchased at the mall a day
earlier). Following publication of the article, an anonymous poster named “12bme” posted a
comment on an online forum associated with the paper stating that the plaintiff exposed herself
to a woman with two children at the mall.

The plaintiff brought suit for defamation against the defendant and issued a subpoena to the
paper seeking all identifying information relating to “12bme.” (The comment had been removed
from the forum – owned and operated by third parties – at the paper‟s request on grounds that it
violated the website‟s terms of service.)

The paper filed a motion to quash, arguing that the subpoena sought information protected by
Kentucky‟s shield law, KRS 421.100, and violated the First Amendment right to anonymous
speech.

On March 25, 2010, the court granted the motion to quash, finding that the plaintiff failed to
satisfy the five-part test outlined in Solers, Inc. v. Doe58 governing disclosure of the identity of an
anonymous speaker.59

The court rejected the argument that the shield law provided protection against disclosure of the
information as the posting was not obtained in the newsgathering process by the paper or a
reporter for the paper. It held that, “[t]o allow an anonymous web poster the immunity of KRS
421.100, would well extend the purpose of the privilege against disclosure of sources of
information published by a news organization.”60

North Carolina

State v. Mead

The defendant was arrested for the murder of his pregnant girlfriend. The Gaston Gazette
published stories about the defendant and his arrest, and the articles prompted numerous
comments on the paper‟s website. One comment revealed the results of a lie detector test taken
by the defendant, which the judge had sealed.

The defendant subpoenaed the paper and Julie Moreno, a reporter and the publisher of the paper,
seeking her testimony, all identifying information relating to two comments posted to a June
2010 story and the paper‟s contract with its forum management company.

58
   977 A2d 941 (D.C. 2009).
59
   Clem v. An Unknown Person, No. 08-CI-1296 (Ky. Cir. Mar. 25, 2010).
60
   Id. at 3.


                                                     14
The paper filed a motion to quash, arguing that the subpoena sought information protected by
North Carolina‟s shield law.

On August 16, 2010, the court granted the motion, finding that the paper and Moreno enjoyed a
qualified privilege under the shield law and that the defendant failed to overcome the privilege.61
It held that “[t]he information sought by the Defendant in the subpoena is confidential
information related to The Gazette‟s and Moreno‟s newsgathering and news publishing activities
and was obtained while Moreno was acting as a „journalist,‟ all within the meaning of the Shield
Law.”62

Texas

State v. Coe

The defendant was charged with the death of a 4-year-old child. The Courier published stories
about the child‟s death and the defendant‟s arrest, and the articles prompted numerous comments
on the paper‟s website.

In September 2009, the defendant subpoenaed Houston Community Newspapers, the owner of
The Courier, seeking all identifying information relating to 34 anonymous posters on the paper‟s
website.

HCN filed a motion to quash the subpoena, arguing that the Texas shield law granted a privilege
against disclosure of the information, that the subpoena was overly broad, unreasonable and
oppressive, and that the subpoena failed to provide reasonable time for compliance and was
otherwise harassing.

On June 15, 2010, the court granted the motion. (There was no written decision.)




61
     State v. Mead, No. 10-CRS-2160 (N.C. Super. Aug. 16, 2010).
62
     Id. at 2.


                                                        15

				
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