Legal Siege on a Free Press

California’s press shield law and its federal counterpart seem to be developing gaps, with a number of judges in California trying to force journalists to turn over documents or testify at trials.

Among the latest to be caught in the net is Mark Arax, a Times reporter whose 1998 investigations of abuses at Corcoran state prison helped bring about a state probe and prosecutions. Now defense attorneys for eight Corcoran guards accused in federal court of forcing prisoners into gladiator-style fights have subpoenaed Arax and a reporter formerly at the Fresno Bee. The defense also seeks outtakes from a CBS “60 Minutes” report on Corcoran. This is a danger not just to the reporters but to all who depend on the free flow of information.

The case of Arax and his colleagues follows several in state courts: Northern California community-paper journalist Tim Crews was jailed in February for refusing to name confidential sources in a case involving state troopers. A judge in Marin County earlier this year fined a reporter $1,000 a day for refusing to testify about unpublished information in a murder case. Other cases in which jail is threatened are in the pipeline.

Federal District Judge Anthony W. Ishii has set hearings on the Corcoran subpoenas during the next two weeks. He should throw them all out of court. As previous cases that established the federal precedent showed, a reporters’ sources might not talk to someone seen as a potential witness, which implies bias. Sources also might not reveal crucial information about government wrongdoing if the reporters’ notes or videotapes were at risk of being hauled into court. As a key 1972 Supreme Court decision noted, “without some protection for seeking out the news, freedom of the press could be eviscerated.” Unfortunately, even reporters called to the stand to “verify” published quotes may then be ordered to reveal more. And once called as witnesses, they may be excluded from the courtroom and thus prevented from reporting the trial. The dangers are endless.

Shield laws only cover reporters for stories they have worked on. Reporters who are actual parties to a lawsuit or criminal case unrelated to their news-gathering are, of course, treated just like any other citizen.

Federal protections, though fairly strong, are not as specific as the California shield law, which tightly restricts the circumstances in which reporters may be forced to testify about their stories. That’s what makes the recent breaches in the state law so surprising and so threatening. Large papers can afford the legal costs to fight a subpoena. For small papers, the cost may be crushing. Last month, Crews, who does all the jobs at his tiny Sacramento Valley Mirror, told a Times reporter his out-of-pocket legal costs had reached $70,000. And he still ended up in jail. These are real threats to all who value a free press.