What’s in a Name?
Vanessa Leggett case could affect a journalist’s privilege.
By Jane Kirtley
Jane Kirtley (firstname.lastname@example.org) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.
Throughout August, the news media were riveted to the sorry saga of Vanessa Leggett, who found herself subpoenaed by federal prosecutors in connection with a grand jury investigation of an unsolved 1997 Texas murder.
In and of itself, this is hardly news. Lots of people are subpoenaed to testify before grand juries, and many of them are reluctant to comply. Nevertheless, in most cases, they must appear or be held in contempt. The interests of justice, it is said, demand it.
Leggett claims that she spent four years researching the murder because she plans to write a book about it, and that she is entitled to invoke a journalist's privilege. But houstonpress.com, the online version of the weekly Houston Press, calls her "the most prolific Houston true-crime writer never published," and her record to date admittedly is scanty: a couple of unpublished manuscripts (one of which, "Million Dollar Murder," tied for first place in the mystery novel category in the Fort Bend, Texas, Writers Guild competition last April, according to the organization's Web site) and several academic articles, including one that was coauthored by an FBI agent.
Not surprisingly, the federal government contends that Leggett isn't a journalist at all. This means that the Justice Department is not bound by the Attorney General's guidelines governing press subpoenas, which were first drafted during the Nixon administration and have been honored, more or less, ever since. The guidelines, which set up a protocol that must be followed by federal law-enforcement personnel, include obtaining approval from the Attorney General in advance and limiting the scope of the subpoena to essential information.
In this case, the government served Leggett with a "kitchen sink" subpoena, demanding all the notes and tapes of her interviews. She did testify before the grand jury in December but refused to turn over any materials that she considered confidential. When she continued to defy the court, federal district Judge Melinda Harmon ordered her to jail.
Leggett appealed to a three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans in August. Many journalists' associations rallied to her defense. And across the nation, newspaper after newspaper, among them the New York Times, USA Today and the St. Petersburg Times, published outraged editorials, demanding to know how the government dared to try to define who is a journalist.
As abhorrent as it may seem, it is nevertheless a fact that if someone is going to invoke a special privilege, she has to be prepared to satisfy the court that she is entitled to do so.
The 2nd U.S. Circuit Court of Appeals formulated a sensible standard in 1987, in a case involving Andrea Reynolds, a friend of murder defendant Claus von Bulow. Reynolds claimed that notes and an unpublished manuscript she prepared during von Bulow's trial were protected by a journalist's privilege, even though she had limited experience as a published writer. The court ruled that even a person who is not a "traditional" journalist can invoke a privilege as long as, from the time she begins gathering information, she intends to disseminate it to the public. Under that standard, it appears that Leggett would pass the test.
As it turned out, Leggett's status became a moot point in her appeal. The 5th Circuit, describing her as "a virtually unpublished freelance writer, operating without an employer or a contract for publication," ruled that journalists enjoy no First Amendment privilege to resist a grand jury subpoena. Other federal courts disagree. This means that Leggett's case might provide an opportunity for the U.S. Supreme Court to reexamine this issue, last considered in 1972. That year, the high court refused to recognize a Constitutional privilege for reporters who have witnessed criminal activity.
But be careful what you wish for. The current Supreme Court gives tremendous deference to the grand jury process and is unlikely to embrace the concept of a broad privilege that would threaten to eviscerate the evidence-gathering process. There's a good chance it could agree with the 5th Circuit and reduce the journalist's privilege to nothing.
And if the courts do decide that anyone who intends to publish information is a journalist, then anyone with a computer and a modem is a journalist. It means that the self-styled "abortion war correspondents," who photograph patients and staff members outside of abortion clinics so that the images can be placed online and on public access television by the Christian Gallery News Service (which also operates the notorious "Nuremberg Files" Web site with its list of abortion providers), are journalists.
Will the media rally to their defense, I wonder, the first time they run afoul of the law?###