Three months into 2018, the most under the radar threat to press freedom has shown itself to be not arrests or attacks on journalists, but rather subpoenas to produce documents or attempt to force journalists to testify about their sources.
While few of these cases have made national headlines because the Trump administration has not been involved, journalists in state and local jurisdictions have been subpoenaed to testify in court by government actors five times already this year, in addition to at least five times in 2017. (Update: Shortly after this post was published, Freedom of the Press Foundation became aware of a sixth subpoena in 2018.)
Donaghy’s colleague William Erb was issued a similar subpoena. Although several news organizations have reported that a ruling was made on these subpoenas, no decision has been made public. Additionally, three Chicago-based newspapers—Chicago Sun-Times, Chicago Tribune, and Daily Herald— were subpoenaed in January 2018 to produce copies of all stories they had run about the fatal police shooting of teenager Laquan McDonald.
In December 2017, investigative journalist Jamie Kalven was subpoenaed by defense attorneys for a Chicago police officer to testify and reveal details about his sources in the criminal trial of the officer in Cook County, Illinois. A month prior, across the country in San Diego, freelance reporter Kelly Davis was ordered to testify at a deposition by the County of San Diego and turn over unpublished materials used in her reporting. These subpoenas, both of which were later quashed, are just two examples of subpoenas against journalists last year.
(Note: The U.S. Press Freedom Tracker does not count legal orders by private parties, but rather only those issued by government prosecutors or agencies ordering journalists to testify in court. We also count legal orders brought by private parties when government officials subpoena journalists in a private capacity.)
When we launched the U.S. Press Freedom Tracker, we weren’t counting legal actions like subpoenas and prior restraint the way we were arrests. While the Tracker has highlighted each individual instance of assaults and arrests since its inception, we predicted that subpoenas would be less common. The Tracker has only been documenting press freedom violations that have occurred since January 2017, so it’s difficult to make conclusions about the prevalence of subpoenas. But the sudden uptick in subpoenas served on journalists just in the past six months is deeply worrying.
To reflect the frequency and press freedom significance of these subpoenas, we modified the counter on the Tracker’s homepage. Although previously it displayed the number of border stops of journalists, it now shows the number of subpoenas.
Legal action that mandates journalists to turn over their reporting materials or reveal information about their sources is always concerning. Investigative journalism, and journalism that challenges power, requires the ability of journalists to keep their sources and reporting processes confidential—especially in the face of legal process.
“A democracy requires a free flow of information to the public. But if a journalist may be forced to disclose the identity of a confidential source, then potential whistleblowers who are concerned about maintaining their anonymity will be less likely to come forward with important information about government or corporate misconduct. So ultimately the public loses out on this valuable information, and the health of our democracy suffers,” says Sarah Matthews, Staff Attorney at Reporters Committee for Freedom of the Press.
It’s a decades-old problem. Journalists have, since the 1970s, gone to jail rather than give up their sources in court. In response, thankfully, many states have “press shield” or “reporter’s privilege” laws. Such laws, which exist in approximately 40 states, aim to provide at least some protection for journalists to avoid testifying about their sources or information that they obtained as part of their newsgathering processes.
Unfortunately, not every state has such laws, and many reporter’s privilege statutes were written decades ago and are not longer adequate in the digital age. While the prospect for passing a strong federal shield law faces increasingly long odds (and could potentially have unintended consequences for press freedom), state legislatures can provide important protections to journalists by updating or passing new press shield laws that take into account the shifting nature of online journalism.
Subpoenaing for journalists’ confidential information may be a long-standing problem, but at least on the state and local level, not one that will be going away anytime soon. We’ll continue to systematically document every such incident with the U.S. Press Freedom Tracker as long as the practice persists.