Subpoenas

Introduction:

A subpoena is a legal process to cause a witness to appear before a court and give testimony on a specific subject. Subpoenas can also compel a person to provide documents or other materials, such as tape recordings, email and videotapes. Attorneys use subpoenas to acquire information that they otherwise would not be able to obtain. Journalists are not immune from the reach of subpoenas and must handle them tactfully to avoid being held in contempt of court (contempt disruption or interference with the workings of a court). If a journalist is held in contempt of court, he or she may face a fine, imprisonment, or both. There are many reasons why journalists should fight subpoenas. Perhaps most importantly, journalists have a duty to the public to report the news in an objective, neutral manner. The public's perception of objectivity may be lost if a journalist is a witness in a legal proceeding. If journalists are habitually subpoenaed, many of their sources will cease to provide them with information out of a fear of being revealed. Such action will certainly decrease future story possibilities and have a chilling effect on news reporting. Journalists also face the danger of lawsuits for violating confidentialities assured to certain sources of information. Journalists may face subpoenas from two legal systems: state and federal. Each legal system has particular laws and procedures of which journalists need to be aware. In Pennsylvania, journalists arguably have more protection than they do in the federal legal system. This is because of Pennsylvania's "Shield Law," which protects a journalist's sources. In the federal legal system, with certain exceptions, journalists only enjoy protections from the First Amendment, federal common law (case law) that interprets the First Amendment and certain procedural guidelines developed by governmental agencies, such as those promulgated by the United States Department of Justice.

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Pennsylvania Subpoena Laws Generally speaking, any competent person (except defendants actually on trial in a criminal proceeding) may be compelled to testify in any civil or criminal matter. However, a person cannot be compelled to answer any question which, in the opinion of the trial judge, would be self-incriminating. 42 Pa. C.S.A. § 5941 Journalists, however, enjoy a limited privilege not to testify under the "Shield Law," which states that "no person engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news, shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit." There is a statutory exception that requires radio and television stations to maintain and keep open for inspection the actual broadcast or telecast (including an exact recording, transcript, kinescopic film or certified written transcript of the actual broadcast or telecast) for a period of at least one year from the date of broadcast to be protected by the "Shield Law." 42 Pa. C.S.A. § 5942

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Court Interpretation of the "Shield Law" Pennsylvania courts have held a number of items, such as untelevised video outtakes, reporters' notes, verifications of information, to be protected. This is because if the courts compelled such items to be produced in court, they could reveal the identity of primary and secondary sources of information. Courts have also construed the "Shield Law" liberally in favor of newspapers and news media.

Production of photographs: a number of cases have held that the production of photographs can be compelled if they were taken in a public area which was open to public view and the release of the photographs will not reveal any confidential source of information. Shetler v. Zeger, 4 Pa. D.&C. 4th 564 (Franklin County, 1989).

Waiver of privilege: If a newspaper publishes information, the published information is no longer privileged and is not protected under the "Shield Law." Journalists should comply with any subpoena for such information. However, any information that is not published or publicly disclosed is not waived and its privileged character remains. In re Taylor, 193 A.2d 181, 412 Pa. 32 (1963).

Defamation lawsuits: One important exception is that Pennsylvania courts have held that the "Shield Law" does not apply to defamation lawsuits. In such situations, journalists may be compelled to produce items such as notes, videos, outtakes, etc., after deleting information that may reveal the identity of a confidential source. Davis v. Glanton, 705 A.2d 879, 26 Media L. Rep. 1492 (Pa. Superior Court, 1997).

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First Amendment Protection from Subpoenas First Amendment protections apply to both federal courts and state courts (via the Fourteenth Amendment). The United States Supreme Court has interpreted the First Amendment to provide limited protections for the protection of confidential sources, and this interpretation is binding upon state courts. In Branzburg v. Hayes, 408 U.S. 665, 1 Media L. Rep. 2617 (1972), the United States Supreme Court held that requiring newsmen to appear and testify before state or federal grand juries does not abridge 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 (such as the "Shield Law"). In its opinion, the Supreme Court stated that newsgathering is not without its First Amendment protections, and grand jury investigations that are instituted or conducted in bad faith would be resolved differently under the First Amendment. Grand juries must operate within the limits of the First and Fifth Amendments and official harassment of the press undertaken for purposes other than law enforcement (such as disrupting a reporter's relationship with his news sources) would have no justification. The Supreme Court's unwillingness to revisit its decision in subsequent years has led to the Branzburg rule remaining the valid law of the land, denying journalists a privilege not to testify about their confidential sources to a grand jury. Decisions of lower federal courts have been somewhat more favorable towards journalists by interpreting Branzburg to recognize some form of limited privilege.
A number of the federal circuits, including the Third Circuit (which includes Pennsylvania), have taken action consistent with the view of the dissenting judges in the Branzburg case. These courts have applied this dissenting view in grand jury and non-grand jury cases alike. This dissenting view is that when faced with assertions of a reporter's privilege, the courts should proceed on a case-by-case basis balancing the reporters' rights against the interests of those seeking information. As a result of their case-by-case analyses, the courts eventually fashioned a three-step test for resolving the privilege cases: the reporter's privilege is overridden only if (a) the information sought is relevant, (b) it cannot be obtained by alternative means, and (c) there is a compelling interest in the information. Coughlin v. Westinghouse Broadcasting and Cable Inc. 780 F.2d 340, 12 Media L. Rep. 1529 (3rd Cir.(Pa.) Dec 30, 1985).

Note: The above cases do not involve state's shield laws. Many federal cases do involve state "shield laws," therefore giving journalists more protection than that which is stated in the above analysis. For example, Branzburg v. Hayes did not involve reporters from states with a "shield law." Had the Defendant in the Branzburg case lived in such a state, then he would have been allowed to claim protection from the "shield law" and would have been protected from disclosure regardless of the outcome of the First Amendment analysis. Therefore, journalists operating in Pennsylvania may claim the "Shield Law" as a defense to the extent that it is allowed under Pennsylvania law, even if they are being sued in federal court.

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Federal Rules and Regulations The Federal Rules of Evidence somewhat conflicts with Branzburg because it recognizes a privilege for journalists at Rule 501, which states that the privilege of a witness shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law. Therefore, this rule incorporates the above mentioned case law and the three-part test stated in Coughlin should be used in civil and criminal cases in the Third Circuit.

A number of federal agencies have their own procedural rules for subpoenaing witnesses. These procedural rules are important because courts require agencies to adhere to their rules. Perhaps the agency whose rules journalists need to be most aware of is the U. S. Department of Justice (DOJ). The rules promulgated by the DOJ incorporate procedures similar to, but in many ways mores restricted than, the federal common law for the Third Circuit. The Justice Department includes a number of additional requirements, including, among other things, the express authorization of the Attorney General to the issuance of a subpoena to a reporter and the need for negotiations with the media (prior to the issuance of any subpoenas) to accommodate any particular media concerns.

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Revealing Confidential Sources The United States Supreme Court has held that the First Amendment does not protect journalists or publishers from lawsuits for breach of a promise of confidentiality. The most influential of these cases is Cohen v. Cowles Media Co., 501 U.S. 663, 18 Media L. Rep. 2273 Jun 24, 1991, which involved a confidential source whose identity was printed as part of a news story after he was promised confidentiality in exchange for information. The Supreme Court stated that the First Amendment did not prevent an action for breach of contract and that any inhibition that the holding would have on truthful reporting was no more than an incidental consequence of applying generally applicable law. The First Amendment does not confer on the press a constitutional right to disregard promises that would otherwise be enforced under state law.

Note: This case dealt with a voluntary, non-subpoenaed release of information by a newspaper. A reporter would not have to reveal confidential sources if subpoenaed because such information is protected under Pennsylvania's "Shield Law."

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Recommendations:

  • Do not ignore a subpoena! Doing so will expose you to contempt charges, including fines, imprisonment, or both.
  • Consult an attorney before you do anything related to a subpoena. Let the attorney decide whether the "Shield Law" applies.
  • If contacted by an attorney, do not give him or her any information that is unpublished. Doing so may lead to a subpoena to testify as a witness. (In fact, it may be best to refer the attorney to the Newspaper's attorney and refuse to give further comment on the case).
  • Only reveal information that has already been made public (such as through news reports). Notes, outtakes, tape recordings, etc. are usually protected by Pennsylvania's "Shield Law."
  • If the subpoena asks only for published materials, the newspaper may move to quash the subpoena because the published materials are available elsewhere, such as a library. If it asks for confidential or unpublished materials, such as notes or unpublished stories, fight the subpoena.
  • Never destroy materials when served with a subpoena.
  • When fighting a subpoena, move to quash it as soon as possible.
  • Require all of the correct procedural steps to be followed when the subpoena is being served. Have only the subpoenaed person sign or accept service of the subpoena and provide the server only that information which is required.

Ethical Considerations The American Newspaper Guild has adopted the following rule as part of the newsman's code of ethics: "(N)ewspapermen shall refuse to reveal confidences or disclose sources of confidential information in court or before other judicial or investigating bodies." G. Bird & F. Merwin, The Press and Society 592 (1971).

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See also: Confidential Sources

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