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 AJR  Columns :    THE PRESS & THE LAW    

From AJR,   June 1999  issue

A Forceful Way to Get the Picture    

Police seize a freelancerís film, subpoena othersí.

By Jane Kirtley
Jane Kirtley (kirtl001@tc.umn.edu) is the Silha Professor of Media Ethics and Law at the University of Minnesota's School of Journalism and Mass Communications.     

About 5,000 very unhappy Michigan State fans got carried away March 27, after their men's basketball team lost to Duke in the Final Four. What was to have been a celebratory gathering turned into an ugly brawl, as disappointed MSU supporters set cars on fire, broke windows and tussled with police officers.

Police arrested 27 people, and several were arraigned on charges including armed robbery, inciting a riot and indecent exposure. A freelance photographer covering the fracas for the Associated Press took five rolls of film to a Meijer food and department store for developing. Store employees, recognizing that the film included scenes from the melee, notified police detectives, who obtained search warrants and seized the freelancer's film, as well as some rolls belonging to other customers.

Meijer spokesman John Zimmerman labeled the events of the night of March 27 "a well-publicized act of violence," adding that "if any of the people complain that their pictures were confiscated by the police department, we don't want their business anyway," according to AP.

Robert Ianni, an official in the Michigan attorney general's office, told AP that once you give film to a photo processor to be developed, you've also given up any expectation that it will be kept private. "If you want privacy, develop it yourself," Ianni said. This is probably news to the millions of people who innocently deposit their film at a photo shop, never dreaming that it could find its way into the hands of authorities without their knowledge and consent.

Unfortunately, using their own photo labs didn't protect the editorial privacy of the 19 news organizations that received subpoenas from local prosecutor Stuart Dunnings III. He demanded all the videotape and film they had shot that contained images of the riot.

Several of the organizations voluntarily turned over published or broadcast material to the authorities. They included the East Lansing State Journal, whose photographer had been hit in the head with a bottle by a rioter who didn't want his picture taken. But citing their need to remain independent from law enforcement, most refused to produce any photos or footage that hadn't been made public.

It wasn't as if the East Lansing police didn't have images of the melee. Law enforcement personnel had shot their own videos, and some citizens provided photographs to them voluntarily. Those photos were posted on a city Web site labeled the Hall of Shame. Police Lt. Tom Johnstone told AP that by the evening of April 2, more than 3,500 people had looked at the site and identified at least two suspects.

But Dunnings was a man in a hurry. AP quoted him as saying that he wanted to prosecute as many rioters as possible before the university's summer vacation began May 7. He claimed the investigation would be stymied without the media's images. So it was off to court for a showdown with the First Amendment.

Guess who won the first round? Although the news organizations protested that forced compliance with the subpoenas would undermine their neutral position and align them with the prosecutor, Ingham County District Judge David Jordon refused to quash the subpoenas. He observed that everyone has a "fundamental civic duty" to help the police solve crimes. He ruled that Michigan law protects only confidential sources, not photographs taken at a public gathering.

A mid-level appeals court agreed. But, at the end of April, the Michigan Supreme Court found that Jordon erred by approving the use of investigative subpoenas as a discovery procedure. It sent the case back to the lower court for reconsideration.

According to Newhouse News Service, State Journal Executive Editor Steve Crosby said that, apart from ethical concerns, the newspaper feared for the safety of journalists covering disturbances if they were perceived to be an arm of law enforcement. This argument has seldom been used in subpoena challenges in the United States, but it is one that grows increasingly compelling as more and more courts limit the reporter's privilege to protect only confidential sources.

In an ironic twist, just as the news organizations were preparing their appeals, computer hackers gained access to a list of tipsters who had provided police with information on some rioters. The city had failed to use passwords to protect the tipsters' identifying data, despite promises that the sources would be kept anonymous, the New York Times reported.

Perhaps that will give the authorities a taste of how journalists feel when they are ordered to disclose unpublished information.