TIME: Almanac 1993/TIME Almanac 1993.iso/time/082691/0826220.000

Text File | 1992-08-28 | 5.9 KB | 122 lines

                                                                                PRESS, Page 56

When the Bench Uses a Club


Journalists face more subpoenas to hand over notes and sources --
often for dubious or gratuitous reasons

By WILLIAM A. HENRY III -- Reported by Dan Cray/Los Angeles with
other bureaus


    What you see often depends on where you sit. If it is in
a newsroom, you probably believe what democracy needs most is to
protect the free flow of information. If it is on a judicial
bench or in a prosecutor's office, you probably focus on
respect for the rule of law. In truth, free press and fair trial
are both important values. But they can collide, and
increasingly journalists lose. News organizations find
themselves ever more under court order to reveal confidential
sources and sometimes to hand over notes en bloc -- often to a
lawyer on a fishing expedition for anything that might help.

    In an extreme case that captured headlines last week, a
journalist's sources were stripped bare without the reporter
even being notified of the search. In Hamilton County, Ohio, a
prosecutor ordered a secret electronic snoop through the records
of 35 million telephone calls made between March 1 and June 15
from 655,000 southwestern Ohio lines to find any potential
corporate leakers who had called the home or office of Wall
Street Journal Pittsburgh bureau reporter Alecia Swasy while she
was researching stories that embarrassed Procter & Gamble, a
major Cincinnati area employer.

    Swasy is now enduring one of the two main results of the
subpoena epidemic, a chill on her work because confidential
sources may not feel safely anonymous. Other reporters have
faced worse. In recent months, Libby Averyt of Texas' Corpus
Christi Caller-Times and Brian Karem of KMOL-TV in San Antonio
were jailed briefly for withholding unpublished or confidential
information. Jail, fines or other punishments were threatened
against reporters at the Washington Post, Los Angeles Times,
Miami Herald, Houston Post and Chronicle, Oakland Tribune and
even Florida's Stuart News and Oklahoma's Pryor Daily Times.

    In all, U.S. news media faced nearly 4,500 subpoenas in
1989, the only year for which statistics exist. Editors and
attorneys agree that the volume has surged since. The demands
have expanded beyond criminal cases to civil suits, which now
account for a third of all subpoenas. Some involve government
policy or alleged libel. Many are routine requests for published
stories. But in a rising number of cases, the demands are
invasive, the battle is over money, and the conflict strictly
involves private parties. That was actually the case in
Cincinnati, where P&G failed to prevent the leaking of internal
policy debates, then persuaded authorities to view the matter
as a criminal violation of laws protecting trade secrets.

    Journalists feel a moral obligation to sources; in June
the Supreme Court held that there may also be a legal one. It
ruled that a political consultant who planted damaging facts
about an opponent could sue two Minnesota dailies for printing
his name after reporters vowed not to. Yet the trend is toward
more subpoenas to reveal sources, even in the 28 states that
offer some sort of shield law, in part because judges often
nullify the protection. They are especially prone to do so in
cases involving serious crime. Reporters reply that the
information being sought can be found in other ways or is not
essential. In covering Charles Stuart -- the Boston man who
claimed his wife was shot by a black robber, then confessed to
the crime and committed suicide -- reporters Patricia Mangan of
the Boston Herald and David Ropeik of the city's WCVB-TV
suggested that Stuart's brother was complicit. The district
attorney sued unsuccessfully to make them reveal sources,
arguing that other means had been exhausted. Says Ropeik: "I
happen to know that the question, `Were you Mr. Ropeik's or Ms.
Mangan's source?' was not put to a number of people who appeared
before the grand jury.''

    Occasional cases involve outright judicial pique.
California Superior Court Judge Bernard Kamins defied the logic
of the state shield law, which bars judges from finding
reporters in contempt for protecting a source, when Richard
Serrano of the Los Angeles Times would not say how he got a
secret report about the notorious videotaped police beating of
Rodney King. In May, Kamins imposed a $1,500-a-day fine, later
much reduced, claiming the punishment was not for contempt but
for refusal to expose who violated Kamins' gag order.

    Win or lose, reporters often become gun-shy. The San
Francisco Chronicle's Erin Hallissy has been in and out of court
for five years to safeguard notes she made of her jailhouse
meeting with an accused multiple murderer when she worked for
the nearby Contra Costa Times. She says, "In interviews like
that, I think, `Do I really want to get myself involved?' "
Serrano says whether or not he was chilled, his sources were.
"My phone calls weren't returned."

    Sometimes editors see no reason to resist subpoenas. More
often they can't stand the political heat, legal expense or
logistical difficulty of having staff tied up in court. Harry
Harris, a 26-year veteran of the Oakland Tribune, fought for a
while but was eventually advised by Tribune lawyers to show his
notebook in a murder case to a judge in chambers. He says, "I
really have been affected by it. When you go into an interview,
you say, `Look, what you say is between you and me, and what I
don't use, the public doesn't know about.' " That is the deal
every reporter makes. The real danger in the rush to subpoena
reporters is not that news organizations will face expense or
inconvenience but that stories that used to be hard to get will
become -- as Procter & Gamble so plainly hoped -- well nigh
impossible.