By Alice Neff Lucan

One headline here is that it appears that newspaper publishers have a reputation for being difficult to subpoena, while broadcasters more often comply. Broadcasters received the great majority (71%) of the subpoenas issued, while 29% were served on newspapers. Four hundred and ten newspapers responding received 784 subpoenas, out of the 2,725 subpoenas reported. Newspapers reported more success (48%) in negotiating withdrawal of their subpoenas, while trial courts quashed 18% of the remaining newspaper subpoenas. Newspapers complied with subpoena demands only 23% of the time. Television broadcasters reported full compliance with subpoena demands 73% of the time.

Most of the newspaper subpoenas asked for published articles or photographs. However, newspaper staff members were asked more often to testify at a trial or deposition (51% of the time). Notes were sought 36% of the time; unpublished photographs were sought in 18% of the subpoenas. A total of 19% of the subpoenas demanded story drafts and internal memos.

The results in the MDDC region were pretty typical of overall results.

In Delaware, the Delaware State News/Daily Whale in Dover responded to the survey, but received no subpoenas. In Maryland, the Carroll County Times, The Capital, The Daily Times, The Frederick News-Post, The Montgomery Journal, The Prince George’s Journal and WBAL-TV in Baltimore all responded to the survey, reporting 20 subpoenas in 1997. Only five of the Maryland subpoenas went to the newspapers. In the District of Columbia, The Washington Post, Radio Free Europe/Radio Liberty, Inc. and WRC-TV reported receiving a total of 35 subpoenas, but only 9 of those went to The Post.

Another headline is that state shield laws were used successfully to resist subpoenas 45% of the time.

Maryland, D.C. and Delaware all have good shield laws. Maryland’s Courts and Judicial Proceedings Code, Privileged Communications - News section, protects unpublished information, notes and photographs, but a court may compel disclosure after applying a three-part test. Maryland courts cannot compel disclosure of the name of the source. Delaware’s "Reporter’s Privilege" allows a reporter to refuse to give the source or the content of information received from a confidential source, but the judge can find an exception if the "public interest" balance comes out in favor of disclosure of the content, though not the source. In the District of Columbia, the "Free Flow of Information Act of 1992" also protects sources completely; other information is protected but a three-part test can be applied to decide whether disclosure should be compelled.

The news media can also argue for constitutional protection for their unpublished information. However, a federal appeals judge in New York last year dealt a stunning blow to the constitutional privilege when he refused to recognize a constitutional privilege for non-confidential, but unpublished video out-takes recorded by NBC’s Dateline in a report on abusive behavior during highway stops by deputy sheriffs. The decision is not unique, but it is from an influential court.