Study Sees Increase in Federal Media Subpoenas
An study to be published in an upcoming issue of the Minnesota Law Review concludes that media subpoenas are issued with some regularity.
The article notes that proponents of a federal shield law to protect reporters from revealing confidential sources have cited an avalanche of subpoenas faced by the news media. Opponents, on the other hand, say such subpoenas are rare. Law professor RonNell Andersen Jones of Brigham Young Law School concludes in her article, “Avalanche or Undue Alarm? An Empirical Study of Subpoenas Received by the News Media” (PDF), that the truth lies between the two viewpoints.
“All told, the survey data reveals that while the numbers may not be an avalanche in scale, the alarm is not entirely undue,” Jones writes. “Overall increases in subpoenas in the last five years are not as drastic as some media organizations have contended, but the number, scope, and nature of subpoenas—particularly those in federal proceedings and those related to confidential information—appear to be significantly broader than opponents have suggested, and do appear to justify federal legislation.”
Jones surveyed newspapers and television news directors in 2007 about the number of subpoenas they had received during the calendar year 2006. Seven hundred sixty-one surveys were completed, making the final response rate 38 percent. Jones asked the same questions and surveyed the same population as earlier surveys by the Reporters Committee for Freedom of the Press.
The 761 responding news organizations said their news employees had received 3,062 subpoenas seeking information or material relating to newsgathering in 2006.
Respondents representing 38 percent of the nation’s news organizations reported receiving 21 federal subpoenas that sought names of confidential sources in 2006. In 97 instances subpoenas sought information obtained under a promise of confidentiality.
The study found that the number of federal subpoenas per respondent was nearly twice the number reported in the 2001 study. The subpoenas sought information for cases involving everything from national security to immigration matters to drug prosecutions.
Some television broadcasters described subpoenas as almost routine. The survey found that almost 86 percent of all television news operations received at least one subpoena in 2006. The reason is likely because lawyers are seeking material with a strong visual impact, the article said.
“Civil attorneys are using TV stations to conduct discovery and relying on our video of car wrecks and accidents for a dramatic effect in court,” said one television respondent. “They can get all the relevant information they need from police reports and such, but in short, want video of a mangled car to show to the jury. Prosecutors are lazy and would rather subpoena a TV station’s video of a chase, for example, instead of having numerous officers subpoenaed and patrol car video dubbed.”
The article found that the average number of subpoenas per television news operation was 10.2, while the average number for newspapers was less than one. However newspapers received more subpoenas dealing with confidential material.
