Media Subpoenas: Impact, Perception, and Legal Protection in the Changing World of American Journalism

• Publication year: 2021

MEDIA SUBPOENAS: IMPACT, PERCEPTION, AND LEGAL PROTECTION IN THE CHANGING WORLD OF AMERICAN JOURNALISM

RonNell Andersen Jones(fn1)

Abstract: Forty years ago, at a time when the media were experiencing enormous professional change and a surge of subpoena activity, First Amendment scholar Vincent Blasi investigated the perceptions of members of the press and the impact of subpoenas within American newsrooms in a study that quickly came to be regarded as a watershed in media law. That empirical information is now a full generation old, and American journalism faces a new critical moment. The traditional press once again finds itself facing a surge of subpoenas and once again finds itself at a time of intense change-albeit on a different trajectory-as readership and public reputation plummet. As the dialogue on this complicated topic once again reaches full volume, intensified by a series of hotly contested federal reporter's privilege bills, the question of the appropriate legal rule is again inextricably intertwined with the question of the real-world impact of subpoenas on the operations of the media. This "law-in-action" Article aims to offer the legislators and policymakers of today what Blasi offered them four decades ago. It reports the results of a large-scale empirical study, presenting both quantitative and qualitative assessments of the effects that subpoenas have on daily newspapers and local television news operations, and re-explores the questions of changing legal climate and media awareness of legal protection. The Article concludes that media subpoenas have a substantial impact on newsgathering, warranting federal legislative attention. But it also concludes that the traditional press is ill-informed of the contours of its own legal protection, which may compound the difficulties the media experience in this area.

INTRODUCTION................................................................................318

I. THE NEED FOR THE STUDY....................................................321

A. Changes in the Profession and in the Public Reputation of the Media.......................................................................328

1. Modern Developments in the Traditional Press...........328

2. Declining Public Perception.........................................334

B. A Wave of High-Profile Subpoena Cases and an Overall Increase in the Number of Subpoenas................................339

C. An Increased Focus on the Law of Reporter's Privilege.... 344

II. STUDY METHODOLOGY..........................................................349

III. STUDY RESULTS........................................................................353

A. Impact of Subpoenas on Newsgathering............................354

1. Impact on Newsroom Time..........................................354

2. Monetary Impact...........................................................361

3. Impact on Journalistic Practices...................................363

a. Impact on Material-Retention Policies...................364

b. Impact on News Coverage ..................................... 366

c. Impact on Availability and Use of Confidential Sources...................................................................367

i. Availability of Sources....................................368

ii. News Organizations' Policy Changes.............370

d. Impact on Neutrality .............................................. 373

B. Perceptions of Legal Climate.............................................374

1. Perceptions of Recent Legal Developments.................374

2. Perceptions That Subpoenas Are Overbroad or Unnecessary.................................................................. 381

C. Awareness-of-Legal-Protection Data ................................. 384

1. Awareness of Shield Laws...........................................387

2. Awareness of Reporter's Privilege Protection Other Than Statutory Shield Laws ......................................... 389

3. Other Misinformation About Reporter's Privilege Protections .................................................................... 391

CONCLUSIONS..................................................................................393

APPENDIX OF FIGURES...................................................................399

INTRODUCTION

Nearly forty years ago, journalists in the United States faced both an unprecedented transformation of the media profession and a critical change in the legal climate for reporters. With the blossoming of a new brand of investigative, public-interest reporting that would culminate in the legendary Watergate stories,(fn2) members of the traditional press enjoyed record-high public opinion and a skyrocketing reputational status that led some judges and scholars to suggest that daily newspapers and television news operations should be revered as a fourth branch of government,(fn3) critical to the nation's security and well-being and protected as a check on the other three branches. At the same time, the media's changing structure and increasing profile had created legal complications. Subpoenas against reporters-a problem that historically had been "a matter of only occasional and local significance"(fn4)-began to occur with much greater regularity, "in such numbers and circumstances as to generate consternation in virtually all quarters of the journalism profession."(fn5) These changed circumstances led to proposed changes in law, and both the judicial and the legislative branches found themselves intensely focused on the possible need for a reporter's privilege.

Noting the dual trends of a rapidly changing industry(fn6) and a stark uptick in the issuance of subpoenas(fn7)-and recognizing that the ensuing legal debate demanded an assessment of the real-world impact of subpoenas on these new "modern"(fn8) newsrooms-First Amendment scholar Vincent Blasi sought to investigate these effects. His empirical study, which included qualitative and quantitative measures of journalists' perceptions of the impact of subpoenas on newsgathering,(fn9) along with data describing their perceptions of their own legal protections, is widely regarded as a landmark in media law.(fn10) It helped to inform the legislative debates on proposed shield laws and to shape the contours of the courts' analyses of reporter's privilege in the years immediately following the study.(fn11)

Today, American journalism faces a new critical moment, with some unmistakable parallels to the events that triggered Blasi's watershed study a generation ago. The traditional press once again finds itself at a time of intense change-albeit on a different trajectory-as the Internet robs it of readership and viewership and as the public reputation of the mainstream media slides downward. And, after an intervening period of relative calm on the legal front, a new string of high-profile subpoena cases has resurrected the debate over the propriety of a reporter's privilege.(fn12) As was the case four decades ago, the dialogue on this complicated topic is once again at full volume, intensified by a series of hotly contested bills proposing a federal shield law for reporters. Once again, the question of the appropriate legal remedy is inextricably intertwined with the question of the real-world impact of subpoenas on the operations of the media.

This Article aims to contribute much-needed updated insights on the perceptions of members of the media and on the impact of subpoenas within modern American newsrooms-which operate in a professional and legal climate that is radically different than the one that Blasi explored in the last neutral, academic study of the question. Using data gathered in a large-scale, nationwide study of the frequency and impact of media subpoenas,(fn13) the Article presents both quantitative and qualitative assessments of the effects that subpoenas have on daily newspapers and network-affiliated local television news operations, and re-explores the questions of the changing legal climate for the press and journalists' awareness of their own legal protection, a generation after Blasi made the same important inquiries.

Part I of the Article provides an overview of the issue and describes the motivation for the empirical study, demonstrating the ways in which a collection of factors-including very recent changes in the circumstances of the traditional press, a recent wave of highly publicized cases in which reporters were found in contempt, an overall increase in subpoena frequency nationwide, and a burst of federal legislative shield law proposals-all make the need for data on subpoena impact and perception as great or greater than it was at the time of Blasi's report. Part II describes the current study's methodology and the ways in which it mirrors and departs from Blasi's earlier work. Part III shares the study's results. The Article then offers final, overarching conclusions. The data suggest that while the circumstances of the press are radically different today than they were at the time of the initial study, the perceived impacts of subpoenas on newsrooms and the process of newsgathering are the same, if not intensified. Newsroom leaders' awareness of their current legal protections is no better than it was a generation ago...