Reporters serve public best on the job -- not the stand

REPORTERS in California and 30 other states enjoy the protection of shield laws that generally enable them to refuse to disclose -- even in a court of law -- the identity of sources to whom they have promised confidentiality.

These same laws generally allow journalists to refuse to divulge material they gather but don’t use -- notes, transcripts, photographs, outtakes and the like.

Shield laws exist so that sources with important information can come forward without fear of exposure or reprisal -- and so that reporters can do their jobs without the risk of becoming participants, or of being perceived as partisans, in any litigation.

But what happens when a reporter is subpoenaed to testify about something other than unused material or the identity of a confidential source? Suppose a reporter is subpoenaed only to testify that what he quoted someone by name as saying in a published article is, in fact, what that person said?

Does the shield law apply then? Or should a reporter be willing -- or required -- to step onto the witness stand and provide “authentification testimony,” to say, in effect, “Yes, that’s what she told me”?

These are the questions now being confronted in a federal courtroom in New York, where four reporters were subpoenaed to testify at the trial of Lynne Stewart, an attorney accused of aiding terrorism and then lying to the government about her efforts.

In papers filed with the court, the U.S. attorney says he will ask the reporters only to “authenticate” what they quoted Stewart as having told them, not ask about confidential sources or about anything Stewart said that was not published.

On the face of it, this might seem quite reasonable. If a reporter interviews someone on the record and quotes that person by name in print, why shouldn’t the reporter testify to that and only that?

But these reporters and their news organizations -- the Reuters news agency, the New York Times and Newsday (a sister paper of the Los Angeles Times) -- are all fighting the subpoenas.

I think they’re right to do so.

First of all, the information in all these reporters’ stories is readily available from other sources -- including Stewart herself -- and the courts have traditionally held that reporters can be compelled to testify only when “the information is not reasonably obtainable from other reliable sources.”

Moreover, says George Freeman, assistant general counsel for the New York Times, “It’s axiomatic that if the reporters testify [as government/prosecution witnesses], the defense will want to cross-examine them, and that could get into questions about what she told them that was not published.”

Stephanie Abrutyn, counsel for Newsday, says defense questioning “could also get into the context of what she said and her state of mind,” information that journalists have always resisted testifying about for fear of being characterized as siding with one side or the other in a legal case.

In fact, Patricia Hurtado, the Newsday reporter, who’s covered the federal courts for more than 15 years and has been covering this very case, says, “Since my name surfaced as a potential witness, those involved in the case have become reluctant to speak with me in public or to return my phone calls.”

Moreover, if Hurtado were a witness, she would no longer be allowed to sit in the courtroom when other witnesses testified, thus severely compromising her ability to cover the trial.

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A disturbing trend

TO prevent that, when U.S. District Judge John Koeltl said this month, on the eve of opening arguments, that it would be “some time” before he decided whether to enforce or quash the subpoenas, Newsday asked the government to withdraw the subpoena for Hurtado, and the government agreed to do so. But it reserved the right to reissue the subpoena later.

Hurtado is the only one of the four subpoenaed reporters covering the trial, but the larger principle of compromising a reporter’s role as impartial courtroom observer apples to all four.

More important, it applies to reporters everywhere at a time when, as Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press, says, attempts to force reporters to testify are “increasing dramatically, especially in federal court.”

Many of these cases do involve attempts by the government to force reporters to disclose confidential sources.

“Subpoenas of journalists have been popping up all over the country over the past two years,” Dalglish says. “This administration is determined to stomp down hard on leaks, and they think the best, most efficient way to do this is to get journalists to identify their sources so those sources will stop talking to journalists.”

In many cases, whether confidential sources are involved or not, “newspapers are often the first stop, the easiest place for a lazy lawyer to go,” says Karlene Goller, newsroom counsel for the Los Angeles Times.

“Reporters are professionally neutral gatherers and rememberers of facts, and if they work for respected news organizations, their testimony has a valuable imprimatur, so lawyers want to use them,” Goller says.

“But as soon as you testify, even it it’s unwillingly, you erode your professional currency -- your professional neutrality.”

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Amending the amendment

REPORTERS used to rely largely on the 1st Amendment guarantees of freedom of the press to protect them from government subpoenas. But the courts have held that this guarantee is not absolute. Reporters who witness the commission of a crime in the normal course of their personal lives -- witnessing a holdup in a convenience store while shopping, for example -- have the same obligation to testify as does any other citizen.

In 1972, the U.S. Supreme Court ruled that requiring newsmen to appear and testify before state or federal grand juries did not necessarily abridge the 1st Amendment. Essentially, the court ruled, in a 5-4 vote, that claims of journalistic privilege had to be decided on a case-by-case basis by balancing the freedom of the press against the requirements of the criminal justice system.

The court left it up to individual states to create their own shield laws, if they so desired. About a dozen states already had such laws; Maryland enacted the first in 1896, California passed one in 1935, and about 20 more did so after that ruling.

California’s shield law was incorporated into the state constitution in 1980, which made it one of the strongest such laws in the nation.

Although most 1st Amendment lawyers I’ve spoken with favor the broadest possible application of the shield law, Eugene Volokh of the UCLA Law School says, “In this day and age of the Internet, when anyone can be a journalist ... I think the reporter’s privilege [not to testify] should be limited to the most extreme cases, like protecting confidential sources.”

The argument that testifying in virtually any case would, in effect, “put reporters in bed with the government,” is “arrogant, contemptuous and contemptible,” Volokh says, “and shows a complete lack of understanding of one’s civic duty to testify.”

But reporters cover controversial stories all the time, and in our increasingly litigious society, if they’re subject to subpoenas just to confirm the accuracy of what they’ve reported, “many of them may find themselves spending more time testifying than reporting,” says Sandra Baron, executive director of the Media Law Resource Center in New York.

Many critics of the press might regard that as a good thing. They would be wrong. To maintain an informed citizenry, we need reporters on the street, not in the courtroom.

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David Shaw can be reached at david.shaw@latimes.com. To read his previous “Media Matters” columns, please go to latimes.com/shaw-media.