|
Shield law provides some protection from subpoenas By KIM GREENE There has been some buzz lately about the incarceration of a writer researching a murder case in Texas for her refusal to respond to a subpoena from a grand jury. It has raised the question about the protection Kentucky reporters have from such subpoenas. What exactly is the Kentucky reporters’ shield law anyway? In Texas, Vanessa Leggett wanted to write a book about the case of Robert Angleton, a wealthy man from Houston who allegedly hired his brother Roger to murder his wife. When Robert was acquitted in state court, a federal grand jury was convened to further investigate. In the meantime, Roger committed suicide in jail. As part of her investigation, Leggett interviewed both Robert and Roger, as well as Roger's wife and many others. When the grand jury first subpoenaed her, she appeared and testified. However, she was again subpoenaed several months later and was told to bring tapes and transcripts of all of her interviews with her. At that point, she moved to quash the subpoena, but the court denied the motion. When Leggett refused to turn over her tapes and notes, Leggett was held in civil contempt and jailed. Because Texas does not have a statutory shield law, Leggett's appeal argued that she was protected by a reporters’ privilege under the First Amendment and the Texas constitution and common law. Kentucky, of course, does have a statutory shield law, KRS 421.100. But, at least in this case, the result would be the same here. The full text of Kentucky’s reporters’ shield law is:
Taken literally, this language suggests that any person engaged or employed by or connected with a newspaper, radio or television station would virtually never have to identify any source of any information that person obtained and published. But is that really how it works? The courts interpret our statutes. Sometimes a statute remains on the books, in its original wording, even after the courts have declared it unconstitutional or have given it an interpretation that shades the literal meaning of the statute's words. That's the case here. Although KRS 421.100 says that a reporter cannot be compelled by a grand jury to divulge a source, the United States Supreme Court has held otherwise. In a case originating in Louisville with a Courier-Journal reporter, the Supreme Court held the journalists’ privilege invalid before a grand jury, unless the grand jury investigation was not being conducted in good faith (which, of course, is virtually impossible to show). That means that if you receive a subpoena from a sitting grand jury, you are probably going to have to comply. This is particularly true if in the course of your investigation you have witnessed criminal activity. (The Courier-Journal reporter had interviewed a known drug dealer in his home while he was dividing and packaging his "goods.") The lesson to take from this? When you are contemplating an investigative piece (e.g., drug dealers, child support scofflaws, etc.) be careful before you accept an invitation to meet with the individual involved in the crime. You need to be aware that witnessing criminal activity (whether it's the drug dealer mentioned above or interviewing the dad on the lam from authorities seeking to enforce the child support order against him) can subject you to a grand jury subpoena. Another issue: what is protected by the reporters’ shield law in Kentucky? Even in criminal proceedings (other than grand jury) or civil proceedings, it is only the identity of the source which is protected. And, generally, only a confidential source is covered. The information provided by the source is not protected by this statute. There are some limited circumstances in which certain information “gathered during your reporting process but unpublished” can be protected. This protection comes under the constitutional and common law reporters’ privilege, rather than the Kentucky statutory privilege. When the constitutional and common law privilege was first recognized some decades ago, the courts stated that information obtained during the newsgathering process but unpublished could be protected from disclosure unless the party seeking the information in court could show that the information was: (1) relevant and material (important) to his claims or defenses in the litigation and (2) unavailable from non-privileged sources. Through the years, the courts have grown less friendly toward this privilege, but there are still some instances where they apply it. Many of you have called the Hotline about subpoenas you have received from the Commonwealth or the defense attorney in a criminal case or from the plaintiff or defendant in a civil action. Here are the questions you want to ask yourself to determine if the constitutional and common law privilege might protect your unpublished information or photograph: 1. Was the subpoena validly issued by a court official? 2. What exactly does the subpoena ask of me? (That I testify in court, that you produce copies of published news articles or photographs? That you produce copies of unpublished news articles or photos?) 3. Are there other potential sources for the information sought by the subpoena? Sometimes criminal defendants will subpoena copies of published news articles concerning their case. Often they do this to support a motion for a change of venue on the basis of widespread publicity. In that case (or in any case in which the subpoena seeks only previously published articles or photographs), it may be possible to resolve your subpoena by submitting an affidavit in which you swear that the attached copies of previously published news articles and/or photographs are authentic. Likewise, litigants in civil litigation will sometimes subpoena a reporter because she interviewed the other party to the litigation and published an article about it. If the news article quoted that source as saying something that's important to the litigation and that's different from that party's testimony in the litigation, the reporter may be asked to testify that the quote in the news article was accurate. In those cases where the questioning is limited to verifying the accuracy of the information published, the reporters’ privilege does not apply. On the other hand, if the subpoena seeks information about your news gathering process (who you interviewed, what you asked and why) or your notes or unpublished photographs, you want to determine if there are any other sources for the information the subpoena wants. For example, if you're subpoenaed for a case related to an altercation which took place during a break of the regular meeting of the fiscal court, chances are there were a number of other witnesses to that fight. Chances are most of the other witnesses were not news reporters and, therefore, would not be protected by this privilege. Sometimes courts will quash a subpoena like this on the basis that nonprivileged sources are readily available. If you should ever receive a subpoena and have questions about how best to handle it, don't hesitate to call your Hotline attorneys.
|
||||||||||||||||||||||||||
|
|
|||||||||||||||||||||||||||
