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- <text id=91TT1901>
- <title>
- Aug. 26, 1991: When the Bench Uses a Club
- </title>
- <history>
- TIME--The Weekly Newsmagazine--1991
- Aug. 26, 1991 Science Under Siege
- </history>
- <article>
- <source>Time Magazine</source>
- <hdr>
- PRESS, Page 56
- When the Bench Uses a Club
- </hdr><body>
- <p>Journalists face more subpoenas to hand over notes and sources--often for dubious or gratuitous reasons
- </p>
- <p>By William A. Henry III--Reported by Dan Cray/Los Angeles with
- other bureaus
- </p>
- <p> 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.
- </p>
- <p> 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.
- </p>
- <p> 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- were jailed briefly for withholding unpublished or confidential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.
- </p>
- <p> 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.
- </p>
- <p> 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."
- </p>
- <p> 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.
- </p>
- <p> 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."
- </p>
- <p> 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.
- </p>
-
- </body></article>
- </text>
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