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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