DOJ Leak Investigations Raise First Amendment Concerns

Many journalists, constitutional lawyers, and plain old average Americans have expressed alarm at recent revelations about the Obama Administration’s “unprecedented number of leak investigations.”  Perhaps most notably, James Goodale, who represented the New York Times in the Pentagon Papers case, has argued that the President is on his way to surpassing Richard Nixon as “the worst president ever on issues of national security and press freedom.”

Of primary concern appears to be the Justice Department’s investigation of Fox News reporter James Rosen.  As is well-known by now, the DOJ applied for and received a warrant to search Rosen’s personal emails in connection with a 2009 story about North Korea’s nuclear plans, describing Rosen in its search warrant application as “an aider and abettor and/or co-conspirator” who, along with former State Department arms expert Stephen Kim, allegedly violated the Espionage Act of 1917.  

In labeling Rosen a “co-conspirator,” the DOJ has advanced what some have called a “newfound” legal theory, which appears to be that a reporter who solicits and then publishes classified information can be the subject of a criminal prosecution.  In other words, investigative journalism into areas implicating national security might be unlawful.    

The DOJ hooks its legal argument on Section 793(d) of the Espionage Act of 1917, which states in part:  “Whoever, lawfully having possession of . . . information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States . . . willfully communicates, delivers [or] transmits . . . the same” shall be fined or imprisoned.

Section 793(g) of that Act makes a conspiracy to violate Section 793(d) a violation as well.  The Administration’s theory in securing a warrant was that Rosen, in effectively working his source to obtain and then publish classified information, may have broken the law.  In other words, Section 793 applies to the press, notwithstanding the First Amendment.     

It’s a legal theory that has received widespread criticism.  In the 1971 Pentagon Papers case, two members of the Supreme Court, Justices William O. Douglas and Hugo L. Black, appeared to reject the argument that the Espionage Act applies to the press in their concurring opinion.  More recently, James Goodale has expressed his concern that the government “wants to criminalize the reporting of national security information.  This will stop reporters from asking for information that might be classified.  Leaks will stop and so will the free flow of information to the public.”  Numerous journalists and First Amendment watchdogs have decried the chilling effect the DOJ approach might have on national security reporters.

By contrast, however, noted First Amendment scholar Eugene Volokh sees a distinction between actively soliciting, obtaining and then revealing classified information, and the mere publishing of classified information by an “unconnected downstream recipient.”  Writes Volokh:

If there’s a First Amendment right to solicit, aid, and conspire in leaks of classified defense information, then there’d be such a right to solicit, aid, and conspire in leaks of tax return information, leaks of attorney-client confidences, leaks of psychotherapist-patient confidences, illegal interception of cell phone conversation, illegal break-ins into people’s computers, illegal rifling through people’s desks, and so on.

In the end, the Washington Post may have captured it best, in reporting on another recent leak investigation by the DOJ that involved searching the telephone records of the Associated Press—“the real scandal is what’s legal.”

Criminal Defendant Denied Access to Reality Show Footage

A trial court judge in Charlotte ruled Thursday that a defendant in a murder case is not entitled to unaired footage from the A&E series The First 48.  The case presented an interesting twist on shield law issues.

Jonathan Fitzgerald has been charged with the murder of Oscar Alvarado Chavez, who was stabbed to death in his car in August 2010 in Charlotte.  The Charlotte-Mecklenburg Police Department has entered into a contract with the producers of The First 48 to give the show access to officers investigating homicides.  The premise of the show is that if a suspect is not identified within the first 48 hours after a crime is committed, the likelihood of solving the crime drops precipitously.

The First 48 devoted one of its episodes to the CMPD's investigation of Chavez's murder, including the ultimate arrest of Fitzgerald.  In the course of the criminal case against Fitzgerald, which is still pending, Fitzgerald requested that the district attorney produce all unaired video footage captured in connection with the production of the episode.  His attorney argued that because the CMPD had the right under its contract with the producers to review a rough cut of the episode before it aired, the producers were operating essentially as an agent or investigator of the police department.  This, the attorney argued, meant the footage constituted part of the file that the defendant was entitled to review under the open file discovery rules in criminal cases.

This approach, of course, allowed the attorney to sidestep North Carolina's shield law, which requires parties who subpoena journalists to pass a rigorous three-part test before they can obtain material.  We've previously written about shield laws here.  Thus, the case presented two interesting issues.  First, whether the unaired material was in the possession of the district attorney's office for purposes of the criminal discovery statute.  If not, the next question was whether the show's producers constituted journalists for purposes of the shield statute and, if so, whether Fitzgerald could overcome the qualified privilege against production.

I discussed this issue with WFAE reporter Julie Rose before the court issued its ruling.  As her report indicates, my own view was that because the contact made clear that the footage was the property of the producers of the show, Fitzgerald should not be able to obtain the material from the district attorney.  As to the application of the shield statute, my view was that the producers of a television show of this nature -- which focused on the activities of local law enforcement in investigating an actual high-profile crime -- fit within the broad definition of a "journalist" under North Carolina's shield statute.

It appears that the judge who heard the issue was likewise skeptical of Fitzgerald's attempt to tie the television show producers to the district attorney's office.  According to the report of his ruling in the News & Observer, Judge Eric Levinson ruled that the shield statute applied and that Fitzgerald was not entitled to the footage because he could not demonstrate that it was essential to his defense of the case.

North Carolina Media Quash Subpoena in Federal Court

North Carolina media organizations won a significant victory in the U.S. District Court for the Middle District of North Carolina last week when a group of the state’s media outlets convinced a federal judge to quash subpoenas that sought from the media nearly two years’ worth of news coverage of the Eve Carson murder investigation and court proceedings.

Counsel for Demario James Atwater, the defendant in the federal criminal case, issued subpoenas to media organizations across the state generally seeking all publicly aired broadcasts or published news articles regarding the death of Eve Carson and the defendants, as well as all web articles and public comments posted to those web articles maintained by the news media. The defense counsel issued the subpoenas to the media to look for support for the defendant’s request to change the location of the federal criminal trial from the Middle District of North Carolina to a federal court in Virginia. The defense has argued to the court that Atwater cannot obtain a fair trial before an impartial jury in the state of North Carolina due to the media coverage of the murder and the defendant.

Seventeen media outlets fought the defendant’s subpoenas in court on March 10, 2010, rather than turn over the material willingly to the defense. Their oral argument mostly focused on Rule 17(c) of the Federal Rules of Criminal Procedure and the standards set forth in United States v. Nixon, 418 U.S. 683, 699-700 (1974). Each of the companies argued to the court that the defendant’s subpoenas were “overbroad,” “unreasonable,” and/or “unduly burdensome” because compliance would force the news media to cull through two years’ worth of news coverage—at the media’s expense. Complying with the request could take weeks or months and thousands of dollars in some cases, according to media attorneys.

The media attorneys also argued that the material sought by the defense was readily available on each company’s website or, in the case of newspapers, in the public library. In other words, the defense counsel has a readily available alternate means of obtaining the information without requiring the media to take on the burden of finding and delivering the material.

During the hearing, the defense counsel could not identify any inflammatory news story that might prejudice the jury pool and jeopardize Atwater’s federal criminal trial.  The only specific news coverage the defense attorney could point to was repeated images of the defendant going and coming from legal proceedings in a prisoner's jumpsuit---all factual occurences.

After hearing from the attorneys representing the 17 media companies and the defense, Chief District Judge James A. Beaty, Jr. ruled from the bench that the media would not be compelled to produce the material sought.  The judge would order the media to comply with the subpoena when the material sought could be obtained by the defense through publicly available sources, such as the internet and public library. During questioning, Judge Beaty seemed particularly concerned that honoring the subpoena would shift the defendant's burden to obtain material to support his case from the defendant to the media. 

The victory in this case is important because complying with a subpoena—especially a very broad one that covers a long period of time—costs time and money. With news rooms stretched as thin as they are in these difficult economic times, the media simply do not have the resources to devote personnel to reviewing video footage or website postings to comply with a subpoena. Subpoenas issued to the media divert precious human resources from newsgathering activities. And, in a case, like this one, where the criminal defendant cannot identify a single news story that is inflammatory or prejudicial to the defense, requiring the news media to participate in a “fishing expedition” is especially unfounded. 

The victory is also significant because the subpoenas were issued in a federal proceeding, which meant that North Carolina's reporter's shield statute was unavailable.  We've reported on the halting process by which media interests have pushed to have Congress pass a federal shield statute, to date without success.

The only issue before the court on March 10 was whether or not the media would be required to comply with the subpoena and be forced to turn over documents and video. Judge Beaty will rule on the defendant’s request to change venue of Atwater’s federal trial at later date.

The Carson murder has garnered significant local and national media attention. This is at least the second time the news media has become involved in the legal proceedings against the two people accused of the crime. We covered the media’s efforts to obtain access to sealed search warrants in the state court actions here.

New York Court Rejects Effort to Identify Anonymous Internet Speaker

In yet another data point on the status of anonymous Internet speech, a New  York judge this week quashed a subpoena seeking the identity of a person who had posted comments on a newspaper website.

We have covered this topic in a number of prior posts, for example here, here, and here, as courts have grappled in the past year with the question of when to enforce subpoenas to media organizations that would compel the identification of an anonymous Internet speaker.  Such subpoenas have been examined both from a First Amendment perspective, in terms of the constitutional right to speak anonymously, and from a shield law perspective, as many of these subpoenas are problematic under state laws giving media organizations a qualified right to resist subpoenas.  Surveying these cases reveal that context matters -- is the party seeking disclosure a would-be defamation plaintiff seeking the identity of a defamer or a routine civil litigant; is the party a law enforcement agency or grand jury seeking information in connection with a criminal investigation.

In the recent New York case, an Orange County, New York grand jury issued a subpoena to the Chronicle, a weekly serving Chester and Goshen, New York.  The grand jury was apparently investigating comments that appeared on the Chronicle's website concerning the former superintendent of the Chester school system.  Because grand jury proceedings are secret, other aspects of its investigation are not publicly available.

At the hearing on whether to enforce the grand jury's subpoena, the presiding judge took the comments at issue into chambers and reviewed them with the district attorney.  According to local reports, after reviewing the comments, the judge indicated he did not believe they were criminal in nature.  Accordingly, he quashed the subpoena, concluding that the identity of the person or persons who posted the comments at issue was not critical to the matter being investigated by the grand jury.  Although the case was apparently argued from a First Amendment anonymous speech perspective, the court's approach is also consistent with the standard found in many shield statutes, which often require the party serving the subpoena upon a reporter to establish that the information sought is essential to a claim or defense in the pending matter.

The court appropriately recognized that in order to overcome the First Amendment right to anonymous speech, the party serving the subpoena must articulate a compelling justification.  If the party cannot establish that the sought-after information -- here the identity of the speaker -- is critical to a pending proceeding or investigation, then by definition no compelling justification exists.

We will continue to monitor court decisions in this area.

Quantifiying the Chilling Effect of Newsroom Subpoenas

The Media Law Resource Center recently flagged this interesting study, by Professor RonNell Andersen Jones, due to be published soon in the Washington Law Review.  Professor Jones, a former newspaper reporter who has written widely on meda law issues, undertook a large-scale survey of newspaper and broadcast reporters and editors to assess the impact that a surge in newsroom subpoenas is having on the media.  Her work is intended to be an update to Professor Vincent Blasi's landmark study of the same issue in 1971, just as the Branzburg cases were making their way to the Supreme Court.

Without spoiling the ending, since the article is as-yet unpublished, suffice it to say that while the prevalence of shield laws has helped give editors more weapons to fight subpoenas, an inordinate amount of time and money is still being spent educating attorneys serving subpoenas about the contours of the shield laws and, when necessary, fighting them in court.  As Jones notes, while the media was rather highly regarded in 1971, the state of public opinion today is far different, and editors and reporters work in constant fear of being forced to stand up in court and defend their decision not to comply with a subpoena.

The article is very much worth a read, especially for the wealth of data she culled from surveys sent to editors and reporters around the country.

Third-Party Internet Comment Host Discloses Identities

Back in December we wrote a series of posts about the emerging issue of subpoenas seeking the identity of anonymous commenters to newspaper web sites.  In the intervening weeks, the issue has continued to develop, with news coming recently that a company hired by the York Daily Record to manage its web site comment sections had agreed to disclose to authorities the identity of anonymous commenters.

Much like the Alton Telegraph case we've reported on, this case involved a story posted by the newspaper on its web site concerning a murder investigation.  The local prosecutor sought the identity of the commenters because he believed they might have been eyewitnesses to the crime.  Though no subpoena had yet been issued, in a hearing on the matter the prosecutor from the York County District Attorney's office indicated that he had been told by officials from Topix, LLC, the company that manages the web site comments section, that they would disclose the identities if they were served with a subpoena.

The hearing was apparently held to allow argument on whether the identities should be disclosed, but no one from Topix or the newspaper appeared.  The paper's managing editor, Randy Parker, did say in a story about the controversy that "Topix is ultimately responsible for the comments on their site."

Topix touts itself as "the leading news community on the Web, connecting people to the information and discussions that matter to them in every U.S. town and city."  It is a privately held company with investments from some major media companies, including Gannett Co., Inc., The McClatchy Company, and Tribune Company.

The Topix terms of service do say:

Please be aware, however, that we will release specific personal information about you if required to do so in order to comply with any valid legal process such as a search warrant, subpoena, statute, or court order. Further, Topix reserves the right to cooperate with legitimate law enforcement requests for information at its sole discretion.

This language is a fairly standard feature of any web site terms-of-service policy.

As comments sections become more popular, and as cash-strapped newspapers turn to third-party vendors to manage this feature of their web sites, interested parties may find it much easier to approach the vendors, rather than the newspapers themselves, for the information they want.

Judging from the comments posted on the York Daily Record story about this, however, newspaper that do not intervene on behalf of their readers may find the vitality of their comments sections quickly impaired.

Wins and Losses in Effort to Expand Shield Protections

The invaluable Media Law Resource Center recently released a report detailing state efforts to pass shield laws in the past three years.

According to the report, because of the high-profile contempt arrests of reporters James Taricani in 2004 and Judith Miller in 2005, legislative support for the reporter's privilege gained significant momentum.  As a result, five states -- Hawaii, Maine, Utah, Washington, and Connecticut -- passed shield statutes, bringing the total nationally to 36 states plus the District of Columbia.

Three other states, however, attempted to pass shield statutes in the past two years and failed.  In Kansas, Senate Bill 313 was introduced in the 2007 session with bipartisan support from the Senate minority and majority leaders.  Despite this support, however, the bill did not make it out of the Judiciary Committee in 2007 or 2008, and it now appears to be dead.

In Missouri, bills were introduced in 2005 and again in 2007 that would have provided a qualified reporter's privilege.  In 2007, the bill passed the House and was approved 7-1 by the Senate Judiciary Committee by was never voted on by the full Senate because of threats of a filibuster from key Senators.  A final attempt in 2008 to pass a version of the bill never received a vote by the House.

Finally, in Texas, the Free Flow of Information Act was passed by the Senate in 2007 and sent to the House for consideration.  The bill made it out of the House Judiciary Committee and onto the floor for debate, but was immediately killed on procedural grounds.

Given the uncertain extent of the First Amendment's protection for reporters who find themselves served with a subpoena (which we discussed in a previous post), it is critical that reporters and editors know what protection, if any, state law offers.  For those engaged in newsgathering in states without shield statutes, these times call for you to redouble your efforts to make the case for why, as a public policy matter, your state should enact a statutory privilege against the compelled disclosure of sources and source materials.

Courts Grapple With Anonymous Web Site Posters as "Sources"

In a previous post, we discussed the protections afforded to journalists by state shield statutes.  These statutes, which some 35 states have passed, protect reporters from being forced to identify their sources and disclose other source materials except under certain, limited circumstances.  In that post, we mentioned that one of the unanswered questions in most states is how these shield statutes will be interpreted in a world of bloggers and other "new media" journalists.

In recent months we have seen the first in what will likely be a series of decisions involving efforts by third parties (either law enforcement officials or civil litigants) to force newspapers to reveal the identity of anonymous commenters on their web sites.  The key question in these cases is whether a commenter to a newspaper web site is a "source" as defined in the statute.

The first case arose in Montana and involved The Billings Gazette newspaper.  A local politician who had filed a defamation lawsuit against his political opponent sought the identity of an anonymous commenter on the newspaper's web site, apparently in the belief that the commenter was in fact his opponent.  The paper argued that online comments to posted stories are a "core service and integral part" of the newspaper's business because they "foster[] democratic discourse through communities of users."  In an oral ruling from the bench, the judge in Montana quashed the subpoena, holding that the state's shield statute protected anonymous commenters as "confidential sources."

Just a few weeks later in Oregon, another plaintiff subpoenaed The Portland Mercury and the Willamette Week newspapers for the IP address of an anonymous commenter who, the plaintiff claimed, had defamed him in a comment on the newspapers' web sites.  The judge in this case took a different approach.  Rather than calling the commenter a "source," the judge held that the IP address was "information" as defined by the Oregon Revised Statutes, and that the shield statute protects "any unpublished information obtained or prepared by the person in the course of gathering, receiving or processing information for any medium of communication to the public."

Soon after that decision was issued, in an almost identical case, a court in Florida quashed a subpoena issued to the Northwest Florida Daily News.  The court held that Florida's shield statute applied to Internet commenters as "sources."

The final case, which is still pending, is different from the others in that it involves a criminal matter.  In this case, the state's attorney in Madison County, Illinois issued a subpoena to The Alton Telegraph, seeking the IP addresses of five anonymous commenters on the newspaper's web site.  Law enforcement officials contend the commenters to an online story about a murder investigation might have information relevant to the criminal prosecution.  The paper sought to quash the subpoena, arguing that the posters were "sources" under the Illinois shield statute, and that the state had not made the required showing to overcome the privilege.  In response, the state has argued that because the commenters never actually spoke to a reporter with the newspaper, and because the information they posted was not used in an actual story, they were not "sources" under the shield statute.  The court has not yet issued a ruling on the newspaper's motion to quash.

These cases represent just the first skirmishes in what will likely be a battle in every state with a shield statute to better define how these laws interact with the new face of journalism.  Just as courts have had to grapple with the question of who is a "journalist" in a world of bloggers, they will now have to decide what a "source" is.  As traditional newspapers continue to focus their efforts on building a viable Internet presence, their ability to protect the identity of the members of the community who contribute to that presence will be vital.

What To Do When You Are Served With a Subpoena

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.

What Is a Subpoena?

It’s the pivotal moment in countless episodes of Law & Order and CSI.  You know the scene by heart, no doubt.

Detectives approach the intrepid reporter asking for some video or information about where the reporter got a piece of information.  The reluctant reporter puts up initial resistance, saying something like, “That is confidential.”  Detectives quickly respond that they will get a subpoena if they "have to," and, if they do, “we’ll come back in a bad mood.”  Detectives leave with information in hand.

Such confrontations are key to wrapping up a case in forty-eight minutes or less, but every reporter should know that while these scenes may be “ripped from the headlines,” any resemblance to the actual law is purely coincidental.  Of course while the law might be fictional, the factual scenario is all too common, at both the federal level and the state level.

In other posts to this blog, we provide reporters and editors with a broad overview of the law of subpoenas, including, of course, some concrete steps that you should take when your local Detective Briscoe shows up asking for some videotape or photographs, an interview transcript, or the identity of a source.

Today’s topic . . . what exactly is a subpoena?

The fancy legal term is “Subpoena Duces Tecum,” which is just the Latin way of saying that a court is requiring you to appear at a designated time and place with some specified documents.  A subpoena may require you or someone in your newsroom to appear in court, before a grand jury, or in an attorney's office to testify under oath.  In some cases, it will simply request some particular document or material (like handwritten notes or videotape footage).

If the subpoena pertains to a matter in state court, the state rules of procedure dictate what must be in the subpoena and how you may respond to it.  In North Carolina, for example, Rule 45 of the North Carolina Rules of Civil Procedure will govern, whether the subpoena is issued in connection with a civil or criminal proceeding.  If the subpoena relates to a matter pending in federal court, Rule 45 of the Federal Rules of Civil Procedure will apply.  We discuss the differences between state and federal subpoenas in more detail in another post.  It is important to recognize that with very limited exceptions (such as grand jury subpoenas), a subpoena cannot be issued unless there is a pending civil or criminal proceeding.  In other words, a law enforcement officer, district attorney, or private attorney generally cannot issue a subpoena as part of an investigation that has not ripened into an actual lawsuit or arrest.

Most often, someone—either a sheriff or a professional process server—will appear at your newsroom with subpoena in hand and give it to you personally (i.e. “serve” you).  It is possible in North Carolina to serve a subpoena by registered or certified mail, but personal service by a sheriff or process server is still common.  It is unlikely that a detective investigating a criminal matter would show up at your office with a subpoena in hand.

Though the actual appearance of the subpoena will be different from jurisdiction to jurisdiction, no matter where you are it should have a few key things:

  • The words “Subpoena” or “Subpoena Duces Tecum” at the top
  • Your name and address
  • The date you are required to appear
  • The place you are required to appear
  • What you must bring with you
  • The person making the request, along with contact information
  • The signature of the person issuing the subpoena—either the clerk of court, a judge or magistrate, or an attorney

A regular letter, no matter how strongly worded, is not a subpoena.  Once you are sure you have been served with a subpoena, however, the most important thing to know is that this is not a polite request.  You cannot ignore the subpoena and hope it will go away—you should always contact legal counsel when you receive a subpoena.  Assistance of counsel is important because there are legal steps you may be able to take to quash or limit the subpoena, as we discuss in other posts.