Notice Requirements Help Journalists Facing Abusive Subpoenas

Co-written by Thomas R. Burke

Prompted by media attention to a rash of subpoenas issued to California journalists, the California legislature has enacted new procedural safeguards, including a minimum of five days' notice before a journalist may be required to testify, that enhance the rights provided under California's Shield Law. 1 California Code of Civil Procedure Section 1986.1 represents a direct and straightforward legislative response, which could serve as a model for other states, to the increasingly prevalent practice of serving subpoenas on journalists without sufficient time for them to meet with legal counsel. In a number of cases, this practice had threatened to undermine the rights journalists have under the Shield Law to refuse to testify except under limited circumstances.

Stopping An Unfortunate Trend Against Reporters

Section 1986.1 responds to a problem that gained prominence in a 2000 case involving a small newspaper in the rural Northern California community of Altois, California. Tim Crews, publisher, editor and chief reporter and photographer of The Sacramento Valley Mirror, published several front-page articles concerning the arrest of a local California Highway Patrol officer for possession of a stolen gun. The newspaper's reporting was based on information Mr. Crews had received, in confidence, from law enforcement sources. Defense counsel subpoenaed Mr. Crews, to require him to reveal his sources at the preliminary hearing. Mr. Crews appeared without counsel at that hearing. Citing the First Amendment, Mr. Crews refused to disclose the name of his confidential sources, insisting that to do so would endanger their safety and livelihood and undermine his ability to effectively report on local law enforcement activities. The presiding judge, Tehama County Superior Court Judge Noel Watkins, took the position that defendant needed to know the name of the confidential sources - stating at one point that defendant was "only" asking Mr. Crews to reveal their identities. When Mr. Crews continued to refuse, Judge Watkins found him in "open contempt" and sentenced him to five days in the county jail. Mr. Crews was given 72 "judicial hours" to attempt to obtain a stay from the Court of Appeal, although this later was extended to allow Mr. Crews to pursue a review of the court's decision in four other courts.2

On short notice, Mr. Crews was able to gather compelling evidence that defendant had a number of alternative sources for the information he subpoenaed and that Mr. Crews' testimony would not materially assist the defense.3 Nevertheless, Mr. Crews was unsuccessful in his requests for extraordinary relief. California's Court of Appeal and Supreme Court, the U.S. District Court for the Eastern District of California, and the Ninth Circuit Court of Appeals all refused to hear Mr. Crews' case on its merits before expiration of the stay of Judge Watkins' contempt order. On February 26, 2000, Mr. Crews reported to the Tehama County jail to serve a five-day contempt sentence. Later, he was served with a trial subpoena by defense counsel. In the end, defense counsel voluntarily agreed to withdraw the trial subpoena without a legal fight, but not until after Mr. Crews already had spent five days in jail and had incurred substantial interruption to the operations of The Valley Mirror as he fought his contempt sentence.4

The California Legislature's Response

The California legislature took notice of Mr. Crews' ordeal and other recent examples of abusive journalist subpoenas. Assembly-woman Carol Migden introduced AB 1860...