Newsroom Law Blog : Media & Communications Lawyer & Attorney : Brooks Pierce Law Firm : Media Law, Libel Defense, FCC

Although no reporter or news organization wants to find itself defending against a defamation claim, the reality is that plaintiffs have and will continue to file claims alleging injury to their reputations based on media reporting.  Fortunately, media defendants faced with defamation claims enjoy a number of privileges and defenses that protect the “breathing space” the First Amendment requires.  One such protection recognized in a number of jurisdictions is called the “fair report” privilege.

As formulated in the Restatement (Second) of Torts, § 611 (1977),

[t]he publication of defamatory matter concerning another in a report of an official action or proceeding or of a meeting open to the public that deals with a matter of public concern is privileged if the report is accurate and complete or a fair abridgment of the occurrence reported.

Stated another way, the fair report privilege protects fair and substantially accurate reports of statements made in official proceedings—for example, law enforcement investigations, judicial proceedings, and open government meetings.  A reporter may report and rely on statements made in police reports of criminal investigations, even if the statements are later found to be factually untrue, as long as the reporting constitutes a fair and substantially accurate account of the police report.  The First Circuit in the case of Yohe v. Nugent described the privilege this way:

To qualify for the fair report privilege the report must be a fair and accurate portrayal of the official action. The test is whether a reporter’s “rough-and-ready summary” of an official action is “substantially correct.” “A statement is considered a fair report if its ‘gist’ or ‘sting’ is true, that is, if it produces the same effect on the mind of the recipient which the precise truth would have produced."

The theory behind recognition of the fair report privilege is that the public has a legitimate interest in knowing about official government actions, and the news media is, practically speaking, the primary source of information about these actions for most people.  According to the First Circuit in Yohe, “the only way news outlets would be willing to make such a report [concerning government proceedings] is if they are free from liability, provided that their report was fair and accurate."

Fairness and substantial accuracy are required for the privilege to attach, but, as mentioned above, some leeway is allowed between the content of the document or the official statements and the content of the media’s report.  The test is whether the report is a “substantially” correct account of the official documents or statements—the test is not whether the report is a substantially true statement of actual events.  Therefore, when evaluating application of the privilege to official documents and statements, a court must compare the media’s report to the official documents or statements in question.  See, e.g., Heekin v. CBS Broadcasting, Inc., 789 So.2d 355, 360 (Fla. 2d DCA 2001).

One illustrative case concerning the fair report privilege is Yohe v. Nugent, mentioned above.  In Yohe, the plaintiff sued two media defendants and the local chief of police for three statements made by the chief in interviews with the media and about which the media reported: namely, (1) that the plaintiff “was a retired member of the Army Special Forces of Green Berets and has been trained as a sniper;” (2) that the plaintiff had “threatened to kill himself and was reported to be armed with several large caliber weapons;” and (3) that “it was [the chief’s] belief that [the plaintiff] was suicidal.”  The chief’s statements were based on a police incident report concerning a domestic disturbance involving the plaintiff.

The Yohe court found that the statements fell squarely within the fair report privilege.  The First Circuit noted that the plaintiff did not dispute the accuracy of the media’s account of the chief’s statements; rather, the plaintiff argued that “material inaccuracies in the articles, as well as [alleged] negligent reporting on the [media’s] part should result in the newspapers losing the protection of the [fair report] privilege.”  According to the plaintiff, the fair report privilege did not apply to the articles concerning him because they “inaccurately reported that he was drunk and suicidal at the time of his arrest” and the media defendants were “negligent and failed to conduct an independent investigation, which, [the plaintiff] contends, would have caused them to discover that the hospitals had ‘exonerated’ him of being intoxicated and suicidal.”  The First Circuit recognized that the fair report privilege is not absolute and may be lost when a report of an official statement or action is not substantially correct; however, according to the court:

To qualify as “fair and accurate” for purposes of the fair report privilege, an article reporting an official statement need only give a “rough-and-ready” summary of the official’s report; it is not necessary that the article provide an accurate recounting of the events that actually transpired. That is, “accuracy” for fair report purposes refers only to the factual correctness of the events reported and not to the truth about the events that actually transpired. Indeed, it is well established that the fair report privilege “should not be forfeited even if the party making the report knew the statement to be false.”

In dicta, the First Circuit wrote that although the privilege may perhaps be overcome by a showing that the media acted with something more than negligent or knowing republication of inaccurate official statements (i.e., “malice”), the plaintiff had not made that showing in Yohe.  Note that allowing a showing of common-law malice (ill will) or actual malice (knowledge of falsity or reckless disregard for the truth) to defeat the privilege was not actually decided in Yohe; however, whether a showing of actual malice defeats the fair report privilege is the source of some disagreement among jurisdictions.  For example, in Q Int’l Courier, Inc. v. Seagraves, 27 Media L. Rep. 1982 (D.D.C. 1999), the U.S. District Court for the District of Columbia stated that actual malice will defeat the privilege.  See also Schiavone Const. Co. v. Time, Inc., 847 F.2d 1069, n.27 (3rd Cir. 1988) (citing Dairy Stores, Inc. v. Sentinel Publ’g Co., 104 N.J. 125, 516 A.2d 220, 233 (1986)) (stating that actual malice may defeat the privilege under New Jersey law).  But see Restatement (Second) of Torts, § 611 (1977).

As a common-law defense, recognition and application of the fair report privilege are matters of state law.  Every state but Maine recognizes the fair report privilege in some form—whether common-law or statutory, conditional or absolute—but the scope and contours of the privilege and what may be required to defeat it vary among the states.  The range of documents and proceedings covered by the fair report privilege may vary from state to state as well, so it is important that reporters know the extent of the protection the privilege offers in their state.  For example, some state courts have expressly recognized that the privilege extends to accurate summaries of press releases and statements made at press conferences.  See, e.g. Freedom Communications, Inc. v. Sotelo (involving law enforcement press release and email).

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The FCC this week filed a petition with the U.S. Supreme Court seeking review of a federal appellate decision overturning $550,000 in fines levied by the FCC over Janet Jackson's infamous "wardrobe malfunction" during the 2004 Super Bowl halftime show.  The FCC fined CBS that amount -- representing the then-prevailing statutory maximum of $27,500 per CBS-owned station that aired the Super Bowl -- on the grounds that the split-second exposure of Janet Jackson's right breast (for 9/16 of a second) at the end of her performance was indecent.

On July 21, 2008, the Third Circuit vacated the FCC's imposition of a fine against CBS and sent the matter back to the FCC, finding that the FCC had acted arbitrarily and capriciously in concluding that the sequence was indecent.  The basis of its ruling was that the FCC had failed to adequately support the shift in its enforcement policy, which traditionally had not sanctioned fleeting or isolated depictions or descriptions of otherwise indecent material, particularly when aired during a live or unscripted program.  According to the court:

Like any agency, the FCC may change its policies without judicial second-guessing. But it cannot change a well-established course of action without supplying notice of and a reasoned explanation for its policy departure.  Because the FCC failed to satisfy this requirement, we find its new policy arbitrary and capricious under the Administrative Procedure Act as applied to CBS.

In its petition for certiorari to the U.S. Supreme Court, the FCC took issue with the Third Circuit's characterization of its prior enforcement policy, distinguishing its treatment of fleeting expletives from its treatment of fleeting depictions of sexual organs or activity.  The FCC argues:

In the orders at issue here, the Commission explained that, while it formerly required expletives to be repeated before it would treat them as actionably indecent (which accounts for the change in policy at issue in Fox), it had never exempted the broadcast of images -- however brief -- from federal indecency restrictions.

The FCC's reference to "Fox" refers to the indecency case currently pending before the Supreme Court and that was argued just this month.  We reported on the oral argument in that case in a prior post.  The FCC goes on in its petition for review in the CBS case to ask that the Court hold the petition in abeyance until the Fox case is decided.  It may be that based on the Justices' questions and statements during the oral argument in Fox the FCC is optimistic about its prospects in that case.  Because the Third Circuit's reasoning in CBS largely tracks that of the Second Circuit's in Fox, the Supreme Court's decision in Fox may well determine the outcome of both cases.

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The United States has a long-standing commitment to openness in all branches of government.  Among these principles is the presumption that judicial proceedings should be open for observation.  Despite this presumption, there is no absolute right of access to all judicial proceedings or judicial documents, and plaintiffs, defendants, and third parties (such as the reporters) occasionally disagree about what kinds of information should be available to the public.

Sometimes there is a question whether plaintiffs in civil lawsuits must identify themselves by their real names or may pursue their claims anonymously, under pseudonyms.  In rare cases, courts may even allow a plaintiff’s case to proceed “under seal”—with some or all documents filed with the court kept from public inspection.  Besides the obvious challenge for news organizations to accurately report the news when basic information about newsworthy cases is not available, anonymity in judicial proceedings compromises openness and may, in some circumstances, cause harm to defendants.

The U.S. Court of Appeals for the Second Circuit recently grappled with this issue and, in so doing, outlined standards for trial court to consider when asked to allow a case to proceed with the plaintiff’s name sealed.  A copy of the decision in Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185 (2d Cir. 2008) is available here.

In Sealed Plaintiff, the Second Circuit reviewed a New York district court’s dismissal of a case in which the pro se plaintiff, who alleged physical and sexual assault in violation of her civil and constitutional rights, failed to identify herself by name in her complaint, as ordered by the district court and failed to correct certain other deficiencies in her complaint.  The lawsuit was earlier sealed by the district court and the Second Circuit, but portions of the record were unsealed for the limited purpose of the Second Circuit’s opinion.  Ultimately, the Second Circuit vacated and remanded the matter back to the district court for a decision consistent with the standards, set in the Second Circuit’s opinion, for evaluating when plaintiffs may proceed under pseudonym.

The Second Circuit started its analysis by recognizing that the Rule 10 of the Federal Rules of Civil Procedure require the title of a complaint filed with the court to name all the parties.  According to the court,

This requirement, though seemingly pedestrian, serves the vital purpose of facilitating public scrutiny of judicial proceedings and therefore cannot be set aside lightly. Certainly, ‘[i]dentifying the parties to the proceeding is an important dimension of publicness. The people have a right to know who is using their courts.’

The Second Circuit also noted, however, that courts have “carved out” a “limited” number of exceptions to the general rule that parties to an action must be identified by name.  For example, although not cited by the court, in the famous case Roe v. Wade, 410 U.S. 113 (1973), which recognizes that the constitutional right to privacy includes a woman’s right to choose whether or not to terminate a pregnancy, the plaintiff’s name, Jane Roe, was a pseudonym.

According to the Second Circuit, “when determining whether a plaintiff may be allowed to maintain an action under a pseudonym, the plaintiff’s interest in anonymity must be balanced against both the public interest in disclosure and any prejudice to the defendant.”  The balancing includes consideration of a number of factors:

1. whether the case involves matters of a “highly sensitive and [of a] personal nature”
2. whether identification risks retaliatory harm to the plaintiff or to "innocent non-parties”
3. whether the injury litigated against would be incurred as a result of disclosure
4. whether the plaintiff is particularly vulnerable to harm from disclosure
5. whether the suit is challenging the actions of the government or that of private parties
6. whether the defendant is prejudiced by allowing the plaintiff to proceed anonymously, whether the nature of that prejudice (if any) differs at any particular stage of the litigation, and whether any prejudice can be mitigated by the district court
7. whether the plaintiff’s identity has thus far been kept confidential
8. whether the public’s interest in the litigation is furthered by requiring disclosure
9. whether "because of the purely legal nature of the issues presented or otherwise, there is an atypically weak public interest in knowing the litigants’ identities"
10. whether there are alternative mechanisms for protecting the confidentiality of the plaintiff.

Reviewing the district court’s decision, the Second Circuit found that the lower court thought it was “strictly bound” by the requirement of Federal Rule of Civil Procedure that requires a complaint to include the names of “all the parties.'  Thus, in the view of the Second Circuit, the district court “did not balance the plaintiff’s interest in proceeding anonymously against the interests of defendants and the public.”  The Second Circuit remanded the case back to the trial court for application of the balancing test, expressing no view as to how those interests should be balanced.

The Sealed Plaintiff case is just one recent example of a claim allowed to be filed anonymously in court.  For example, this article from the New York Law Journal discusses and provides a link to a New York state court opinion released earlier this year in which a judge agreed to allow a plaintiff to remain anonymous in a lawsuit related her appearance in a “sexually explicit” (according to the court) advertisement that was widely viewed on YouTube.  In so doing, the court balanced the privacy interests of the plaintiff against the presumption favoring openness of trials and the risk of prejudice to the opposing party, ultimately finding that the plaintiff’s privacy interest justified allowing her to use a pseudonym.

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In a prior post, we reported upon the institution of legal actions in the midst of two high-profile U.S. Senate campaigns.  There were important developments in both matters yesterday.

As we reported, Kay Hagan instituted an action over a political ad run by North Carolina incumbent Elizabeth Dole.  Hagan, who ultimately won the race, filed a document in North Carolina state court contending that Dole's ad contained defamatory statements about her.  Yesterday, Hagan filed papers with the court dismissing her claim.

In Minnesota, incumbent Norm Coleman filed suit over a political ad run by his challenger, Al Franken.  The race for Coleman's seat remains uncalled, with Coleman maintaining a razor-thin 206 vote lead as the recount process begins.  Yesterday, an administrative law judge in Minnesota entered an order dismissing Coleman's complaint, a decision she reached after conducting a probable cause hearing on November 7, 2008.

In the order, the judge ultimately concluded that there "is not probable cause to believe [Franken] violated Minn. Stat. s. 211B.06," which prohibits a person from disseminating a false political advertisement that the person knows is false or is reckless as to its truth.  The decision examined a statement in the ad that Coleman had been "ranked the fourth most corrupt Senator in Washington" by an organization called the "Center for Responsibility and Ethics in Government,"   (The administrative law judge had previously concluded that another statement Coleman challenged, that he is "living almost rent free in a million dollar home of a Washington insider," fell outside the purview of the statute because it constituted opinion and could not be proved true or false).

The statement at issue was drawn from report prepared by the organization that named "the 20 most corrupt members of Congress."  The report also named four "dishonorable mentions," a list that included Coleman.  The list of twenty included three Senators, and Coleman was the only Senator among the "dishonorable mentions."  Neither list included numerals or any numbering scheme.  Coleman contended the statement in the ad that he was the "fourth most corrupt Senator" was false because he was not included on the organization's list of "20 most corrupt" members of Congress.  Coleman also pointed to a statement from the executive director of the organization that her group does not actually rank the persons on the list.  In response, Franken contended the statement was true because, as the executive director acknowledged, "96 other senators did not make the list at all."  Coleman also challenged the ad's characterization of the organization as a "bipartisan watchdog group," contending the group instead was "liberal leaning."

In concluding that Coleman had failed to establish probable cause of a statutory violation, the judge found the statement in the ad to be "substantially accurate, if not literally true in every detail."  According to the judge

[B]ased on the reference in CREW's Executive Summary to the 'list of 24,' there is an objective basis for the inference drawn in the Franken advertisement that Senator Coleman was the fourth Senator on the overall list of 24.

The judge also rejected Coleman's claim with respect to the characterization of CREW as a "bipartisan watchdog organization" on the grounds that it did not relate to the personal or political character of Coleman and, in any event, it constituted a non-actionable statement of opinion.  Given her conclusion that Coleman had failed to demonstrate the ad contained an actionably false statement about Coleman, it was unnecessary for her to address whether Franken acted recklessly or with knowledge of falsity.

Coleman has the right to seek reconsideration of the decision.

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You’ve been served with a subpoena by the local sheriff asking you to appear before a grand jury to reveal the name and address of one of the key sources in your recent story on illegal immigration. For obvious reasons, the source asked for confidentiality, a promise you’d like to keep.

What protections do you have?

Thirty-five states have what have become known as "shield laws" or "reporter's shield statutes," which offer varying degrees of protection to reporters from attempts by government officials and others to compel reporters’ testimony.  For example, North Carolina has a shield law that follows the majority approach around the country by offering journalists a “qualified” privilege from disclosure of sources and source materials, a privilege that can be overcome if the opposing party makes a sufficient showing.

The key portion of the North Carolina statute reads:

A journalist has a qualified privilege against disclosure in any legal proceeding of any confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist.

For an invaluable compilation of shield laws around the country, go to the Reporters Committee for Freedom of the Press web site.

That one sentence, of course, raises a host of questions.

What is a journalist?

North Carolina's shield law defines a journalist as “[a]ny person, company, or entity, or the employees, independent contractors, or agents of that person, company, or entity, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium.”

This is a rather broad definition, and courts have tended to read it that way.  We do not, however, know the limits of this definition.  Is a blogger who posts in his free time—the modern version of the lonely pamphleteer—a journalist under the North Carolina law?  North Carolina's courts have not yet given guidance on this question.  The answer in California, at least, may be “yes.”  In O'Grady v. Superior Court, 139 Cal. App. 4th 1423 (Cal. Ct. App. 2006), the well-publicized case involving allegations by Apple Computer that a group of bloggers had misappropriated trade secrets, the court declined to wade into the question of what a journalist is, and held simply that California’s shield statute applied.

What is a news medium?

Under North Carolina's shield law, a “news medium” is “[a]ny entity regularly engaged in the business of publication or distribution of news via print, broadcast, or other electronic means accessible to the general public.”  It is important to note that the law references "any entity,” not "any business.”  This would seem at least to open the door to a non-commercial blogger or some other non-mainstream form of journalism.

When does it apply?

The privilege applies in “any legal proceeding”--both civil and criminal--and covers “any confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist.”  The phrase “as a journalist” is key, however, because the law also makes clear that there is no privilege against disclosure when the journalist obtained the sought-after information because of his or her own eyewitness observation.

What does “qualified” mean?

Because the privilege afforded by North Carolina's statute is qualified rather than absolute, the privilege can be overcome by the party seeking the information.  The journalist may be forced to testify or produce evidence if the party seeking disclosure can show that the evidence or testimony sought:

1. Is relevant and material to the proper administration of the legal proceeding for which the testimony or production is sought;
2. Cannot be obtained from alternate sources; and
3. Is essential to the maintenance of a claim or defense of the person on whose behalf the testimony or production is sought.

In North Carolina, when a journalist asserts the reporter’s privilege, this three-part test tends to be the legal battleground.  And, as one state court said, it is a “rare instance” in which a party seeking disclosure can meet the requirements.  See, e.g., State v. Petersen, 2003 WL 22965551 (N.C. Super. June 30, 2003).  Another North Carolina state court elaborated:

Both the statutory privilege and the common law privilege are intended to protect the free flow of information and avoid the impediment that occurs when reporters are subjected to in-court examination of their newsgathering activities. This intrusion is especially offensive when the same information could be derived from other sources.

Higgins v. Young, 2001 WL 1692379 (N.C. Super. Aug. 08, 2001).

A state shield statute is therefore a critical line of defense journalists can interpose in response to a civil, criminal, or grand jury subpoena.  As soon as your newsroom receives a subpoena, it is imperative that you pass the subpoena along to your counsel so that he or she can determine whether the shield statute, if your state has one, applies.

As the court in Higgins v. Young indicated, however, state shield statutes do not represent the only form of protection reporters have--you may argue for protection by a constitutional privilege as well.  In state-court proceedings in states with shield laws, those laws will likely provide your most robust protection from disclosure, but in states lacking shield laws and in federal proceedings the constitutional privilege may well be your only basis for opposing the subpoena.  We have discussed the limitations of the constitutional privilege in a previous post.
 

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The United States Supreme Court heard oral argument in FCC v. Fox Broadcasting on Election Day 2008.  As authors of an amicus curiae brief in the case, three Brooks Pierce correspondents -- Mark Prak, David Kushner, and Julia Ambrose -- made an old-fashioned road trip to Washington to hear the argument.  In an ironic twist, our sojourn to the Nation’s capital was itself seasoned with some “fleeting” expletives, as we encountered unprecedented and extraordinarily frustrating Election Eve traffic that clogged ingress to the District for nearly an hour.  As our car inched across the Potomac, we distracted ourselves with speculation about what we -- and everyone else, from casual observers to the mainstream media -- anticipated would be a sparkling oral argument.

As it turned out, the oral argument was neither titillating nor tantalizing.  We expected an expletive-laced shootout at the OK Corral between what one critic described as “the prudish FCC and the worldly Fox,” but what we got instead was a relatively somber (and, for at least one Justice, a somnambulistic), plain-vanilla legal argument about the federal Administrative Procedure Act.  Both the Justices and the lawyers tiptoed around the very expletives that launched the case, carefully employing the euphemisms “f-word” and “s-word” in place of the (unscripted) profanities that Cher and Nicole Richie used during live broadcasts of the Billboard Music Awards in 2002 and 2003.  The Court tiptoed nearly as carefully around the First Amendment implications of the FCC’s “fleeting expletives” enforcement policy as well.

Although it is a tricky matter to speculate on the outcome of a case based only on questions posed by the Justices during oral argument, since we braved the rain and the traffic so that we’d have a front-row seat and a birds-eye view of the argument up close, we intend to do precisely that.  Here’s what we think: The Court will continue to tiptoe around the First Amendment issues lurking behind the APA question (a curiosity, as the Court typically is reluctant to review cases that, like this one as the FCC now postures it, present nothing more than run-of-the-mill application of settled legal principles) and either reverse and remand to the Second Circuit for an exploration of the constitutionality of the agency’s fleeting expletives policy or affirm the Second Circuit’s APA ruling, allow the agency to take another stab at explaining why it changed its mind about the treatment of fleeting expletives, and then take up the constitutional issues presented by the “new” policy.  Either way, there is a significant likelihood that these issues will continue to percolate in the federal courts for the next two or three years -- and that this case (together with your Brooks Pierce correspondents) may well make a return trip to Washington.

The questions from a relatively active bench (Justice Clarence Thomas, as is his practice, remained silent, as did Justice Samuel Alito) offer the following hints.  Chief Justice Roberts and Justice Scalia are sympathetic to the FCC’s argument that it offered a reasonable explanation for its change in enforcement policy -- or that, at least in the Chief’s estimation, whether the agency has in fact “shifted” its policy at all is irrelevant, since broadcasters now have a reasonable explanation for what the agency currently thinks about regulating even “fleeting” expletives.  Justice Ruth Bader Ginsburg telegraphed nearly as clearly that she would be inclined to affirm the Second Circuit, and perhaps even to agree with the Second Circuit’s belief (in dicta) that no enforcement policy that penalized fleeting expletives could withstand First Amendment scrutiny.  More than once, she characterized the FCC’s indecency enforcement regime as lacking “rhyme or reason.”  Justice Stevens may well be another vote for affirmance, and he might be in agreement with Justice Ginsburg on the underlying First Amendment issue as well; a softball question to Carter Phillips, Fox’s counsel, hinted that he’d be receptive to an argument that the First Amendment does indeed distinguish between a “fleeting” expletive and one repeated again and again -- exactly the view he outlined in his opinion in FCC v. Pacifica Foundation.  (In a humorous aside, Justice Stevens also suggested that he’d be receptive to an argument that profanity is acceptable as long as it is used to make a really, really funny joke.)  Justices Souter (who questioned the empirical support for the FCC’s shift in policy), Breyer (who questioned the practicalities of expecting small stations to avoid airing unscripted expletives in live broadcasts), and Kennedy (who asked a handful of questions that revealed nothing about his leanings) are harder to read.

Buoyed by what surely seemed like a receptive bench, the Solicitor General closed his initial argument by invoking the spectre of broadcasters run amok absent agency oversight: He envisioned a world in which Jeopardy and American Idol are overrun with profanity and Big Bird “drops the F-bomb” on Sesame Street.  Whether the Court finds the Government’s doomsday scenarios at all plausible, or whether it is troubled by the prospect of five unelected commissioners deciding what broadcast content is acceptable, are questions that won’t likely be answered by the opinion to come out of this case -- at least in this first round.

*   *   *

Coda: One of the most enjoyable aspects of our trip was the opportunity for Julia Ambrose to check in with retired Justice Sandra Day O’Connor, for whom she clerked back in the 1995 Term of Court.  Julia enjoyed the chance to introduce Mark and David to Justice O’Connor, and we got a kick out of meeting and talking with her.  We were guests of the Justice for the argument and enjoyed the opportunity to spend time in her chambers.  Justice O’Connor remains full of vim and vigor.  She is keeping busy in her retirement, serving on the Board of the Rockefeller Foundation, working to protect judicial independence, advancing the cause of merit selection of judges in the state courts, and working on an educational civics project for children.
 

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A sheriff's deputy has arrived in your newsroom, with what you now are sure is a subpoena.  In fact, let’s be more specific.

You spent six months investigating an in-depth enterprise piece on the influx of undocumented workers in a neighboring county.  Your story follows one particular worker, whose identity you do not reveal, as he navigates his way through life, a life which includes using a false Social Security number and driving with no insurance.

Two weeks after the story appears, a deputy from that county's Sheriff's Department shows up at with a subpoena in hand that commands you to disclose the name and contact information of the worker in the story to local law enforcement and the district attorney.

What should you do?

First, don’t panic and don’t say anything substantive to the deputy.

Second, talk to your news director, editor, or publisher, who will undoubtedly contact the station's or the paper's attorney.  It is important to take this step immediately, because in many states you must make any objections to the subpoena within a short period of time after being served with it.  In North Carolina, for example, if you want to object to the subpoena, you must do so in writing within ten days.  You may also within that same time period file a motion in court seeking an order declaring the subpoena to be invalid or without effect, which is called "quashing" the subpoena.

Third, gather and secure whatever evidence you have been asked to produce.  It is important to preserve any documents or other materials that might be responsive to the subpoena.  Destroying responsive information, even as part of the ordinary course of business, can subject the station or newspaper to sanctions by a court.  Thus, even if the decision is made to fight the subpoena, a court may still in the end require you disclose some or all of the material called for by the subpoena.  You need to ensure that it is not erased or discarded in the meantime.

Fourth, clam up.  There is nothing to be gained from talking to your colleagues, neighbors, or friends about the subpoena. There are cautionary tales in this regard.  It is especially important that you not disclose the sought-after information to anyone else, as they may find themselves served with a subpoena as well.

Of course, this same scenario could also result in someone from a federal agency serving your newsroom with a subpoena.  For the most part, the steps you take are the same.  One significant difference is that your response to the subpoena will be governed by federal, not state, rules of procedure.  For example, under federal law you have fourteen days to object to or move to quash a subpoena.

Under both federal and state rules of civil procedure, you may have a range of bases for objecting to a subpoena.  The first is that complying with the subpoena would impose “undue burden or expense.”  So, for example, if the subpoena would require you to search and then copy hundreds and hundreds of hours of videotapes, a court may agree that the subpoena is too broad.  Most likely, however, the court would simply order the person seeking the information to narrow the request.  Similarly, if the subpoena does not give you enough time to comply, asks for information protected by a legally recognized privilege, or was procedurally defective, the subpoena may be narrowed or quashed.

None of these objections constitutes a permanent “get-out-of-subpoena-free card.”  To avoid testifying completely or disclosing any information, you have two options.  The first, in state court, is to invoke the protection of a reporter's shield law--if your state has one--that creates for reporters a legally recognized privilege against testifying or disclosing source materials.  The second, available both in state and federal court, is far harder to make and relies on arguing for protection under the First Amendment to the U.S. Constitution.  We discussed the limitations on this approach in a prior post.
 

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Not even two weeks after we highlighted the issue of defamation claims arising from political ads, those very claims are making headlines right now in two high-profile political races.

Just this week, two United States Senate candidates—Minnesota incumbent Norm Coleman and North Carolina challenger Kay Hagan—have instituted legal action against their political opponents over alleged defamation in political ads.

The subject of Coleman’s suit against challenger Al Franken is a political ad claming that Coleman was “ranked the fourth most corrupt Senator in Washington” and that he was "living almost rent-free in the million-dollar home of a Washington insider."  As we discussed in a prior post, claims that a politician is "corrupt" or has been involved in "corruption" have been the subject of other litigation.

Kay Hagan's legal action involves a political ad run by incumbent Elizabeth Dole.  In the papers Hagan filed in court, she contends the ad "falsely implies that [Hagan] shares the views of an entity that calls itself the Godless Americans PAC."  Hagan also takes issue with the way the ad ends, which includes an image of Hagan while a voiceover from someone apparently associated with the PAC states "There is no God."  Hagan contends that this depiction "implies it is [Hagan's] voice and her statement."  Prior to institution of a legal action, Hagan aired an ad of her own responding to Dole's ad. 

In response to a "cease and desist" letter from Hagan's attorneys that preceded the legal action, attorneys representing Dole defended the accuracy and legality of the ad and indicated that Dole would not pull it, contending that the ad "plainly states facts."  Dole has moved to dismiss Hagan's action, and she has run a new ad on the same topic.

We will follow the progress of these lawsuits.  Because both ads were candidate ads, the television stations that aired them were provided immunity from liability under federal law.  However, these lawsuits serve as further reminders that political ads can give rise to litigation.

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