Incident Details
- Date of Incident
- January 9, 2024
- Location
- San Francisco, California
- Targets
- U.S. News & World Report
- Case number
- 3:24-cv-00395
- Case Status
- Appealed
- Type of case
- Civil
- Legal Orders
-
-
subpoena
for
communications or work product
- Jan. 9, 2024: Pending
- Jan. 23, 2024: Objected to
- May 7, 2024: Upheld
- May 7, 2024: Objected to
-
subpoena
for
communications or work product
- Legal Order Target
- Institution
- Legal Order Venue
- State
Subpoena/Legal Order
A portion of a subpoena issued to the U.S. News & World Report on Jan. 9, 2024, ordering the news outlet to provide documents concerning its hospital rankings.
U.S. News appeals federal judge’s dismissal of lawsuit over subpoenas
U.S. News & World Report appealed a U.S. district court judge’s May 7, 2024, order denying it protection against two subpoenas and dismissing its lawsuit against the San Francisco, California, city attorney who issued them, according to court records reviewed by the U.S. Press Freedom Tracker.
Attorney David Chiu first demanded information about the digital media company’s hospital ranking system in a June 2023 letter, alleging potential violations of the California Business and Professions Code. U.S. News responded the next month, explaining its methodology and alleging that Chiu’s requests threatened its freedom of expression and constituted viewpoint-based discrimination.
Chiu then subpoenaed the company in January 2024 to answer written questions and produce documents about its hospital rankings and relationships with various health care providers.
U.S. News promptly filed a federal lawsuit against Chiu and requested a preliminary injunction preventing him from enforcing the subpoenas, arguing that Chiu was violating both the First Amendment and California’s reporters’ shield laws.
In May, the court granted Chiu’s motion to dismiss the news outlet’s suit and denied U.S. News a preliminary injunction on procedural grounds, ruling that the company should have submitted formal objections to the subpoenas directly to Chiu, and that the parties’ dispute should play out in state, not federal, court.
The court also said that Chiu’s investigation of the company’s practices is not automatically a violation of the First Amendment. “The Subpoenas are not self-enforcing,” U.S. District Judge William H. Orrick wrote, with no automatic penalties for refusing to respond to them.
U.S. News, in its appeal brief, argued that the district court had committed “momentous errors” in its ruling, misapplying legal precedent to conclude that the case did not belong in federal court. “The district court’s ruling invites state and local officials to use ‘non-self-executing’ subpoenas to burden and chill disfavored viewpoints,” it argued.
U.S. News & World Report was issued two subpoenas on Jan. 9, 2024, by the city attorney for San Francisco, California, seeking information about its hospital rankings and related business dealings.
For more than three decades, the digital media company has produced multiple such rankings, including its Best Hospitals Honor Roll, Best Hospitals by Specialty and Best Children’s Hospitals Honor Roll. It also licenses out “badges” with those rankings to interested hospitals.
The subpoenas order U.S. News to answer written questions and produce documents pertaining to the rankings and U.S. News’ relationships with various health care providers.
San Francisco City Attorney David Chiu first demanded answers about the media company’s process for ranking hospitals in a letter in June 2023, citing his authority under the California Business and Professions Code to investigate potentially unlawful business practices. Chiu alleged that the rankings had come under scrutiny for what he described as their “poor and opaque methodology.”
In a lawsuit filed on Jan. 23, 2024, U.S. News defended its methodology, noting that detailed reports on how the ranking is compiled are published each year. The suit requested protective orders to prevent the city attorney’s office from enforcing the subpoenas and asked that the media company be awarded attorneys fees and costs.
“The Subpoenas make clear that the City Attorney is using governmental process to engage in viewpoint discrimination—and, indeed, is proceeding as though he holds censorial (or editorial) authority over how U.S. News performs its journalistic work ranking hospitals,” attorneys for U.S. News wrote. “It is flatly unconstitutional for the City Attorney to harass U.S. News due to his differing views on these rankings; his mounting harassment must be put to a stop.”
In a statement shared with the U.S. Press Freedom Tracker, Chiu said it was “ironic” that U.S. News was claiming that its speech has been chilled “when the purpose of the company's lawsuit is to chill and impede a legitimate government investigation.”
“Despite U.S. News’ stated commitment to transparency, the company has spent months evading tough questions about its undisclosed financial links to the hospitals it ranks,” Chiu said. “U.S. News is not above the law, and its bullying litigation tactics will not deter us from standing up for patients and consumers.”
In its filing, however, U.S. News stated that it responded to Chiu’s initial letter — explaining its well-documented methodology and raising concerns about the potential infringement of its rights — and did not receive any additional communications from his office for nearly six months.
“The City Attorney’s actions pose a fundamental threat to our First Amendment rights and set a dangerous precedent for all media platforms and news organizations,” the lawsuit argues. It added that if Chiu's actions are allowed to stand, “any journalistic enterprise that provides analyses or opinions to the public—analyses or opinions that elected officials may wish to fault—may for that reason be subject to subpoena and investigation.”
A hearing in the case is scheduled for April 23.
The U.S. Press Freedom Tracker catalogues press freedom violations in the United States. Email tips to [email protected].
