IP: Repoerter Shield laws

[David Farber <dave () farber net>]

> Date: Sun, 11 Mar 2001 13:10:12 -0500
> From: Matt Murray <mattm () optonline net>
> Subject: Repoerter Shield laws
> To: Dave Farber <farber () cis upenn edu>, declan () well com
> X-Mailer: Microsoft Outlook Express 5.50.4133.2400
>
> Prof. Farber and Declan McCullagh:
>
> The following is from the TV email trade DON FITZPATRICK's "Shop Talk" 
> <http://www.tvspy.com/shoptalk.htm>
>
> At the end of last week was a discussion for several days about Nevada 
> Shield Laws and a reporter out there, and it seems that this might apply 
> to Declan McCullagh.
>
> I hope this helps Mr. McCullagh. Good Luck!
>
> Matt Murray
>
> mattm () optonline net
>
>
>
>                         LETTERS TO THE EDITOR
>
> From: Julie Akins, News Director KTNV
> akins () journalbroadcastgroup com
> RE: Las Vegas Review-Journal editorial
>
> The following statement is in regard to the Review-Journal
> editorial published in Shoptalk today - an OP-ED piece that
> we believe merits response. Thank you for your
> consideration. Julie Akins, News Director, KTNV-TV.
>
> It is not the policy of KTNV and the Journal Broadcast
> Group to allow journalists to testify in criminal and civil
> trials.  We support the Shield laws of this country and the
> state of Nevada.  In this specific case, our reporter was
> given a direct statement by a defendant in a criminal case.
> Our reporter was the only person with this specific
> knowledge.  In consulting with our legal counsel it was
> determined the protection of the Nevada Shield Law was not
> sufficient in this particular case.  The statement of the
> defendant in the DUI trial went the heart of the case, it
> was essential and could not be obtained elsewhere and
> therefore it met the criteria of a 1972 US Supreme Court
> decision which allows reporters to be compelled to testify.
> Nevada state law does not over-ride the United States
> Supreme Court.
> Our policy is to protect our reporters notes, sources and
> privilege under the laws of this nation.  This case was an
> interesting study of margins and specifics.  It took the
> exact instance of our reporter as a direct witness and this
> defendants confession to create a circumstance detailed in
> the Supreme Court decision.  The source was clearly named,
> his statements were made off camera to our reporter and
> were broadcast and paraphrased live.  There were no notes
> nor was there video tape of any kind.  Our reporter
> testified as to what was broadcast on the air as it was her
> only knowledge.  This also went to the heart of our legal
> counsels' reasoning.
> KTNV and the Journal Broadcast Group practice the highest
> ethical standards.  Our response to the Clark County
> District Attorneys subpoena was with careful thought and
> reason with respect to our ethical standards and in keeping
> with the laws of the land.
>
> =================================================
>
>                         LETTERS TO THE EDITOR
>
> From:  Jim Mitchell
> mitchell () u arizona edu
> Re:  Shield Law Contrast
>
> Julie Akins, news director at KTNV Las Vegas, argues that
> Nevada's shield law did not protect her reporter from
> testifying about an interview with a drunk driving
> defendant.  "Nevada state law," she wrote, "does not
> override the United States Supreme Court."
>
> It doesn't have to.
>
> States can provide their citizens -- including news
> organizations -- greater rights than the federal
> constitution demands.  The 1972 case to which Akins refers,
> Branzburg v. Hayes, reached the U.S. Supreme Court
> because Kentucky courts (Hayes was a judge) did not extend
> their shield law protection to reporter Branzburg.  The
> Supremes found that the First Amendment did not bar
> Kentucky's narrow view.
>
> Nevada courts, however, almost certainly would have
> protected the KTNV reporter.  Nevada's shield law is
> considered to be among the nation's best. Its breadth and
> strength were emphatically affirmed just last year by the
> Nevada Supreme Court.  So Akins's recitation of criteria
> from the Branzburg case is irrelevant.  If KTNV had the
> will to fight, it would not have needed a federal
> constitutional argument.
>
> Contrast this mess with the stand of Phoenix New Times, an
> alternative weekly that recently got into trouble for
> interviewing a self-styled arsonist.  The newspaper had
> agreed to protect the man's identity.  When a prosecutor
> demanded the reporter's notes, computer hard drive, voice
> mail, and maybe his kitchen sink, New Times invoked the
> Arizona shield law.  It reads much like Nevada's.  The
> judge was personally offended by the newspaper and said so
> in his opinion.  Nevertheless, he found the shield law
> crystal clear.  Subpoena quashed.
>
> My law license is in Arizona, not Nevada, so I shouldn't
> second-guess KTNV's attorneys for advising capitulation (if
> that's what they did. Akins's use of passive voice left
> this point unclear.)  I won't presume to know KTNV's
> motives, either.  The station might be sincere, not merely
> cheap or weak-kneed.  But as an ex-anchor who once worked
> for Paul Branzburg's courageous employers, I salute shops
> that fight for independent reporting...  and I say shame on
> those that fold too easily.
>
> =================================================
>
> From: Peter Herford
> Senior Executive Production
> Public Radio International
> RE: Nevada Law
>
> Dear Don
>
> The statement by the station is a direct misstatement of
> the law. I'm assuming the case is in state court. If so
> Nevada state law does overrule the United States Supreme
> Court.
> The case to which they're referring seems to be the
> "Branzburg Trilogy" arising out of the Ninth Circuit in
> which SCOTUS held that there was only a limited reporters'
> privilege in federal courts under the United States
> Constitution. If a state legislature (or state
> constitution) grants additional rights the state courts
> are, or course, bound to apply them; assuming, of course,
> that some reporter or her lawyer doesn't intentionally or
> negligently waive giving up those rights. Nevada happens to
> have a very broad shield law. The reporter was clearly
> privileged from testifying.
>
> =================================================



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