Seattle Subpoena Fight Is First Amendment Dilemma
Published August 2020
The protests and riots in cities across the country after the police killing of George Floyd in Minneapolis raised many questions about race, justice and free speech. But developments in Seattle in the wake of those events raise serious issues of press freedom and responsibility that have simmered in the law for decades: Do news organizations have an obligation to help authorities identify or prosecute miscreants, and do media law and/or journalism ethics require the media to cooperate with such requests?
On May 30, in the midst of several days of protests in Seattle, a man was seen stealing firearms from several police department vehicles and attempting to set the vehicles on fire. The police obtained surveillance footage from nearby stores to identify the man, to no avail. So the Seattle Police Department went to court an obtained a subpoena for five area news organizations, including the Seattle Times and four television stations, to turn over their footage and photos of the event in order to identify the suspect.
This is reminiscent of the case of Josh Wolf, a blogger who shot video of anarchist protests in San Francisco in 2005 against the G-8 economic summit then underway in Scotland. In investigating an assault on a police officer and the attempted burning of a police car during the protest, federal prosecutors subpoenaed all of Wolf’s footage. When he refused, Wolf spent 226 days in prison for contempt: the longest time an American journalist has been imprisoned for refusing to release source information. He was released only after he agreed to publicly release all of his footage, thus making it available to prosecutors.
The law generally limits government efforts to force reporters to reveal information. In 1972 the U.S. Supreme Court held that the First Amendment does not exempt journalists from having to reveal confidential sources in criminal investigations. But in response many states—including Washington state and South Carolina—passed “shield laws” protecting reporters’ confidential sources in most circumstances. In the states without shield laws, states courts generally recognized such a privilege. And a few federal appeals courts did also, establishing a privilege in at least some circumstances in those courts.
Despite the widespread adoption to either statutory or common law protection for journalists’ confidential sources, news organizations still get subpoenaed for identification of such sources and for other information: an estimated 7,244 subpoenas were sent to newspapers and network-affiliated TV stations in 2006, with television outlets receiving about 10 times as many requests as newspapers.
So subpoenas like the one in Seattle are not that unusual. But Washington state’s reporters’ shield law generally provides that “no judicial, legislative, administrative, or other body with the power to issue a subpoena or other compulsory process may compel the news media to testify, produce, or otherwise disclose” confidential sources or outtakes, notes or other material obtained or prepared during newsgathering.
The shield law has an exception for information that is highly material and relevant and critical to a legal case, as long as the party seeking the information has exhausted all reasonable and available means to obtain it from alternative sources; and there is a compelling public interest in the disclosure. (South Carolina’s shield law is similar.) And the Seattle police say that their request meets these criteria.
The danger of such subpoenas is that erodes trust in the media, by indicating that information gathered by reporters, including sensitive personal and confidential information, could end up going to the government. As the Seattle Times wrote in an editorial about the situation, “Independence from political and commercial influence is the backbone of responsible journalism. Journalists must report in the public interest, not in the service of government.”
Journalists covering the protests in Seattle and other cities were in some cases targeted by the protestors; a scenario that is likely to become increasingly common if journalists are seen as agents of the government.
Eric P. Robinson focuses on media and internet law as assistant professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant.. He has worked in media law for more than 20 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not of his employers.