During a time of renewed emphasis on the Justice Department's use of media subpoenas, a recent study by Brigham Young University law professor RonNell Andersen Jones promises to inform the debate over how often reporters have been compelled to reveal sources and information.
According to the study published in the Minnesota Law Review, media subpoenas appear to be on the rise, and are occurring with greater frequency than opponents of recent federal legislation have suggested.
For the last several years-spurred by a number of high-profile cases in which reporters were subpoenaed to testify about confidential sources and then were held in contempt when they declined to do so-journalists have lobbied for a federal "shield law." The law, which would mirror existing state legislation and give reporters a privilege not to testify in federal court in certain situations, has been proposed a number of times in recent years in both houses of Congress. Each proposed bill was strenuously opposed by the Justice Department, which argued that the media is subpoenaed only rarely and that the shield law is unnecessary.
Findings from Jones' study, "Avalanche or Undue Alarm? An Empirical Study of Subpoenas Received by the News Media," could be used when debate on a federal shield law resumes this year. Jones says that her review of the legislative debates revealed that journalists were pointing to a perceived "avalanche" of subpoenas, but they had only anecdotal evidence of this stark increase. Meanwhile, the Justice Department was offering data suggesting that subpoenas were infrequent and uncommon, but this data was limited to very narrowly defined situations and did not address the full scope of the potential subpoena problem.
"It was very clear that neither camp was able or willing to provide neutral empirical data that would tell us just how often this situation arises," Jones said. "And in many respects, that is the foundational question in the legislative debate."
Industry commentators agree. "The debate over the federal shield law has been a 'really thick numerical fight' since the 1970s," wrote Kevin Rector for the American Journalism Review. But it has been "based entirely on either exaggerated or understated numbers. It has been a numerical dialogue without any numerical data."
Jones' article summarizes the results of a large-scale empirical study on the question. The study gathered data on subpoenas received by daily newspapers and network-affiliated television newsrooms in a single calendar year, and then compared that data to numbers from an industry survey of the same population five years earlier.
The article concludes that subpoenas are issued to the media with some regularity and that they are not limited to the large national media organizations that have been involved in the highest-profile recent cases. In at least some categories-most notably subpoenas arising out of federal proceedings and subpoenas seeking confidential material-subpoenas to the press appear to be on the increase.
"All told, the survey data reveals that while the numbers may not be an avalanche in scale, the alarm is not entirely undue," Jones wrote in her report.
Significantly, Jones says, even though many of the recent high-profile cases have involved issues of national security, the study data suggests that many federal subpoenas are issued in cases unrelated to national security concerns. This data could be useful to legislators who have debated the viability and usefulness of a shield law that may contain exceptions for national security cases.
The report concludes that "because the data indicate that the nature, source, and substance of federal subpoenas are diverse, even a shield law with a strong national-security exception would be germane and useful to journalists in newsrooms that are widely varied in geography and organizational size."
The report has attracted national attention. In an Associated Press article that appeared in dozens of major outlets-including the New York Times, the Washington Post, the Chicago Tribune, ABC News and Fox News-reporter Hope Yen wrote, "Jones has come up with figures in a soon-to-be-released survey that indicate a rise in federal subpoenas following highly publicized media losses in recent years. Those defeats, she says, have emboldened more lawyers to subpoena journalists."
"My hope is that the data will help to advance the debate in an area in which it has long been stalled," Jones said. "Once we've established that subpoenas are happening with some frequency, we can move on to the important policy questions of whether the reporter's privilege is warranted and how best to craft that privilege to take into account the many other competing interests."
The article is 93 Minn. L. Rev. 585 (2008).
Writer: Angela Fischer