AJR  Features
From AJR,   April/May 2007

Tallying the Subpoenas   

By Lauren W. Burton
Lauren W. Burton is an AJR editorial assistant.     

While researching media subpoenas last fall, RonNell Andersen Jones discovered an alarming gap. In the debate over the need for a federal shield law allowing journalists to protect confidential sources, one key piece of information was missing: statistics about how often reporters were being subpoenaed.

Journalists and media lawyers, reeling from a series of legal setbacks over efforts to protect the identities of sources, portray subpoenas to journalists as a serious problem. But the U.S. Justice Department says media subpoenas are relatively rare.

To help plug this gap and give the issue needed context, Jones, a visiting faculty fellow at the University of Arizona's Rogers College of Law, created the 2007 Media Subpoena Survey. "There is a great deal of speculation on the ways these subpoenas affect the media climate," says Jones. "However, no one knows for sure."

After high-profile defeats in cases involving CIA agent Valerie Plame, nuclear scientist Wen Ho Lee and blogger/activist Josh Wolf, the campaign for a federal shield law has become a front-burner issue for journalism organizations.

"We have a rash of federal subpoenas going out to reporters," says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. "News organizations spend an enormous amount of money on lawyers and court proceedings trying to quash subpoenas, as well as a large amount of time."

By surveying more than 2,000 newspaper editors and television news directors, Jones hopes to gather hard data on the number of media subpoenas, the burdens they place on journalists, how editors are handling them and how editors feel about confidential sources and reporter's privilege. The survey is being conducted from the Arizona law school.

The online survey was introduced during presentations at the American Society of Newspaper Editors convention in Washington, D.C., in March and at the Radio-Television News Directors Association convention in Las Vegas the following month.

Pass codes were e-mailed to editors of newspapers listed in Editor & Publisher Yearbook and to news directors of network-affiliated stations listed in Broadcast & Cable Yearbook.

News directors and editors will have until the end of June to fill out the survey. The data will be broken down by the type of subpoena and whether it was issued by the state or federal government.

The 24-question survey begins with a set of queries aimed at all news organizations, including those that have not received subpoenas. These focus on newsroom policy on confidential sources, perceptions of the impact of subpoenas and whether the legal climate for the news media has changed. The next section addresses the number of subpoenas the news organization has received, who issued them and for what reason.

All information editors and news directors provide is to be kept confidential. "One big problem is that this is an issue that news organizations don't want to talk about in public," Jones says. "Many feel embarrassed or ashamed to admit that they have complied with a subpoena."

The last year for which the Reporters Committee has data on the number of media subpoenas is 2001, but Dalglish believes prosecutors increasingly are seeking sensitive information from journalists.

This is the first subpoena survey conducted by a neutral third party, which increases the reliability of the data, Jones says. The survey is funded by a grant from the Law College Association.

The enterprise's success depends entirely on the cooperation of editors and news directors.

"People often come up to me at conferences and tell me about their experiences with subpoenas," Jones says. "I tell them it is not enough to talk about them and have conversations about them.

Log on and report the numbers. Words aren't good enough. We need data!"