News Media Update, Reporters' Committee for Freedom of the Press

11/25/03

Federal judge rules against federal reporter's privilege

SAN FRANCISCO -- ABC News successfully fought a government subpoena for tapes and information relating to an undercover investigation by reporters for the news show "20/20."

However, in granting the motion to quash the subpoena, a federal judge ruled last week that the First Amendment offers reporters little protection in criminal cases.

Citing the U.S. Supreme Court's 1972 decision Branzburg v. Hayes, Judge Susan Illston, of U.S. District Court in San Francisco, ruled Nov. 18 that the First Amendment does not apply to a subpoena served to a journalist in a criminal case, unless the government issued the subpoena in "bad faith."

"The shield in a criminal case is exceptionally thin," Illston wrote. "To deploy it, the reporter must demonstrate that the criminal investigation is proceeding in bad faith, or that the government has otherwise exhibited 'harassment of newsmen.' "

Illston also rejected ABC's argument that the subpoena should be quashed because the government failed to obtain permission from the Department of Justice before applying for it.

According to Justice Department regulations on issuing subpoenas to members of the news media, the government must show that a subpoena is essential to its investigation. However, Illston found that failure to comply with the regulations do not constitute independent grounds to quash the subpoena.

Illston decided to grant ABC's motion to quash the subpoena because the government failed to prove that the information being sought was relevant and specific to its investigation, or would make a point different than information already in its possession -- a requirement for any information sought by subpoena in a federal criminal court.

The case arose as part of the Internal Revenue Service's criminal investigation of Jerome Schneider and Eric J. Witmeyer for conspiracy to defraud the IRS through an offshore banking scheme.

ABC undercover reporters posed as potential clients, and in interviews with Schneider obtained information about the scheme. ABC aired excerpts of the interview in April 1997 on "20/20." The
federal prosecutor in the case against Schneider sought the subpoena to obtain the program's outtakes.

(U.S. v. Schneider; Media Counsel: Thomas R. Burke, Davis Wright Tremaine, San Francisco) -- KM