AJR  Features
From AJR,   April/May 2008

A Flurry of Subpoenas   

Online Exclusive A new study finds a sharp increase in the number of subpoenas seeking confidential information from news outlets and journalists.

By Kevin Rector

Federal subpoenas demanding confidential information from journalists are more widespread than they were five years ago and aren't limited to cases involving national security, according to the author of a soon-to-be-released survey of major television stations and daily newspapers.

The study offers the first independent tally of media subpoenas, a figure that proponents and opponents of a federal shield law for journalists have argued about for years. Although a peer-reviewed academic summary of the study probably won't be released until next fall, its author, University of Arizona law professor RonNell Andersen Jones, says now is the time to talk about it.

"I did the study because I want the study to be helpful, and now is the time that it can be helpful," Jones says, noting the federal shield law pending in the Senate, similar legislation passed in the House and harsh fines recently assessed against journalist Toni Locy after she refused to name her confidential sources in stories she wrote for USA Today in 2003 about the post-9/11 anthrax attacks.

In the survey, 761 respondents--38 percent of those that received the questionnaire--reported their organizations and reporters had received a total of 3,062 federal and state subpoenas in 2006. That response, Jones says, suggests that all of the surveyed organizations received a total of 7,244 state and federal subpoenas that year. Television broadcasters in every market and daily newspapers in every 10,000-plus circulation market reported receiving subpoenas. Subpoenas were issued to media outlets throughout the country outlets in 23 states reported receiving them not just along the coasts or in big cities.

"It's not just the New York Times and Washington Posts of the world that are facing subpoenas," Jones says.

The study, when compared with a similar study conducted by The Reporters Committee for Freedom of the Press in 2001, suggests a dramatic increase in the number of federal and state subpoenas seeking material obtained by a reporter following a promise of confidentiality. While the 2001 study reported six such subpoenas, Jones' survey reported 97.

And although Jones' study found state subpoenas were almost 10 times more frequent than federal subpoenas despite the fact that 49 states and Washington, D.C., have some legal protection for journalists federal subpoenas are also on the rise. While the 2001 study reported 74 federal subpoenas in that year, Jones' study reported 335 in 2006. Out of those, 34 requested confidential material, 21 asking for the names of confidential sources and 13 seeking other information obtained under a promise of confidentiality.

What's more, a large number of federal subpoenas were reported in cases unrelated to national security issues, Jones says.

"Media organizations in the United States report facing federal subpoenas in relation to immigration matters, employment discrimination suits, the prosecution of federal drug crimes, security cases involving the FCC, civil rights actions, even ordinary accidents car accidents that took place in Washington, D.C.," Jones says. "So if 2006 is a representative year, it certainly would appear that reporters and their organizations are spending time, resources and money in a pretty wide variety of cases."

The array of cases is important because it speaks directly to the question of national security concerns, a large issue in the debate in Congress. The legislation pending in the Senate has specific exceptions that would exclude journalists with information vital to national security from protection against subpoenas. But the wide variety of cases shows that a large number of journalists would be protected by the legislation, Jones says.

"A federal shield law, even with a fairly strong national security exception, could still be expected to have a utility, an impact on the world of journalism," Jones says.

Jones began researching media subpoenas in the fall of 2006 after finding that statistics on their frequency were elusive. She says the debate over the federal shield law has been a "really thick numerical fight" since the 1970s, but one based entirely on either exaggerated or understated numbers. It has been a "numerical dialogue without any numerical data," she says.

Jones says she wanted to provide an "objective, neutral perspective" and "flesh out the empirical side of the debate" in order to provide "an honest starting point" for the policy dialogue surrounding the Senate legislation.

"Any time you have a debate over a piece of legislation, proponents can be expected to amplify the nature of the problem and opponents can be expected to downplay the nature of the problem," Jones says. "It's hard to come to a conclusion about the usefulness of a piece of legislation when nobody is addressing it in the same terms. Even if accurate, these honest assessments too often speak past each other."

The Justice Department has said its record of subpoenaing journalists is "one of restraint," and that bringing journalists into court is only done as a last resort. On September 20, 2006, then-Deputy Attorney General Paul J. McNulty said the department had requested information about confidential sources from journalists in fewer than 20 cases in the preceding 15 years, and that this record shows that the proposed shield law is "a solution in search of a problem." Those numbers referred only to a strictly defined type of subpoena involving sources' identities and grand juries.

On the other hand, media outlets have used a broader definition to report a higher number of media subpoenas. For example, on March 11, a coalition of more than 60 media outlets sent a letter to Senate Majority Leader Harry Reid (D-Nev.) stating that "more than 40 reporters and media organizations have been subpoenaed or questioned about their confidential sources, their notes and their work product in criminal and civil cases in federal court over the last few years."

The discrepancies in the totals and the varying methods of counting subpoenas have made dialogue on the issue counterproductive, Jones says. She hopes her study will be a valuable addition to the dialogue, one that may help in moving toward a conclusion.