BILL ANALYSIS
AB 1860
Page 1
Date of Hearing: May 16, 2000
ASSEMBLY COMMITTEE ON JUDICIARY
Sheila James Kuehl, Chair
AB 1860 (Migden) - As Amended: May 8, 2000
SUBJECT : MEDIA SHIELD LAW: CONFIDENTIALITY OF NEWS SOURCES
AND UNPUBLISHED INFORMATION
KEY ISSUES :
1)SHOULD THE LAW BE CLARIFIED TO MAKE CLEAR THAT TESTIMONY OR
OTHER EVIDENCE GIVEN BY A JOURNALIST UNDER SUBPOENA IN A CIVIL
OR CRIMINAL ACTION MAY NOT BE CONSTRUED AS A WAIVER OF THAT
JOURNALIST'S IMMUNITY RIGHTS UNDER THE MEDIA SHIELD LAW?
2)SHOULD A trial court BE ALLOWED to award attorney's fees to a
journalist who prevails on a claim under the media shield law?
SUMMARY : Clarifies rights of journalists under the media
shield law. Specifically, this bill :
1)Provides that no testimony or other evidence given by a
journalist under subpoena in a civil or criminal proceeding
may be construed as a waiver of the immunity rights provided
by the media shield law in the California Constitution.
2)Specifies that, except in exigent circumstances, a journalist
who is subpoenaed in any civil or criminal proceeding shall be
given at least 10 days' notice by the party issuing the
subpoena that his or her appearance will be required. Such
notice must set forth the basis upon which the party serving
the subpoena believes that the journalist's testimony will be
of material assistance, in the form of an offer of proof, and
the extent to which that party has attempted to obtain the
information from an alternate source. [An "offer of proof" is
a statement of the material facts intended to be proved by the
introduction of the testimony being sought. (See generally 31
CalJur3d Evidence, sec. 177 at p. 222 (1976).]
3)Requires a trial court which holds a journalist in contempt of
court in a criminal proceeding, notwithstanding the media
shield law, to set forth written findings stating, at a
minimum, why the information will be of material assistance to
the party seeking the evidence, and why alternate sources of
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the information are not sufficient to satisfy the defendant's
constitutionally guaranteed right to a fair trial.
4)Allows a trial court to award attorney's fees to a journalist
who prevails on a claim under the media shield law against the
party who sought evidence or testimony from the journalist in
any civil or criminal proceeding.
5)Defines "journalist" for the purposes of this legislation, to
mean the persons specified in the media shield law contained
in the California Constitution, which includes a publisher,
editor, reporter, or other person connected with or employed
by a newspaper, magazine, periodical, press association, wire
service, or a radio or television station.
EXISTING LAW :
1)Provides that a journalist (as defined in #5 above) may not be
held in contempt for refusing to disclose either unpublished
information or the source of information, whether published or
unpublished, which is gathered for news purposes. (Cal.
Const., article I, section 2(b); Evidence Code section 1070.)
2)Provides, under case law, that the protection of the shield
law is not absolute, and may be overcome in a criminal
proceeding on a showing that nondisclosure would deprive the
defendant of his or her federal constitutional right to a fair
trial. ( Miller v. Superior Court (1999) 21 Cal.4th 883, 891;
Delaney v. Superior Court (1990) 50 Cal.3d 785, 805-806.)
FISCAL EFFECT : Unknown
COMMENTS : This bill, which is sponsored by the California
Newspaper Publishers Association, seeks to provide the court
with procedures and guidance for handling cases involving the
media shield law so that journalists are not wrongly held in
contempt for exercising their shield law rights.
Author's Statement of Need for the Bill . The author introduced
this bill in response to several recent cases in which
journalists have lost their shield law rights in trial courts.
According to the author, "[i]n one case, a journalist was jailed
for five days. The case was later dropped. In another case, a
journalist was facing a fine of $1,000 per day. He eventually
won the case on appeal. In yet a third case, a college
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newspaper journalist was subpoenaed into court only to find that
the district attorney had failed to investigate the case
properly and there were actually several witnesses, making the
journalist's testimony unnecessary."
The author further states that "[j]ournalists are professional
investigators. The main purposes of the shield law are to
prevent government from making journalists its investigative
agents and to prevent a journalist who is trying to cover the
story from becoming part of the story (which makes them wholly
unable to cover it). Increasingly, when a criminal case is
newsworthy, the first thing (not the last thing) defense
attorneys do is subpoena any journalist who has covered the
story. This has several negative impacts: (1) it makes
journalists the unpaid investigators of the party's counsel; (2)
it harms journalists' ability to gather information in the
future (e.g., sources willing to be interviewed by a journalist
on the condition of confidentiality will be unwilling to do so
if they understand that government can routinely violate that
confidentiality agreement); and (3) it takes resources away from
newsgathering. A reporter who becomes a witness is unable to
cover the story. Additionally, successfully asserting one's
constitutional Shield Law rights is expensive and
time-consuming. Tim Crews' successful battle cost him five days
in jail and legal fees of $70,000."
General Overview of Media Shield Law . As noted above, the media
shield law protects a journalist from being held in contempt of
court for refusing to disclose either unpublished information or
the source of information, whether published or unpublished,
which is gathered for news purposes. (Cal. Const., article I,
section 2(b); Evidence Code section 1070.) The courts have held
that the Legislature, in enacting the media shield law,
recognized the importance of maintaining a free flow of
information and intended that the statute be given a broad,
rather than a narrow, construction. (See e.g., Rosato v.
Superior Court (1975) 51 Cal.App.3d 190.)
The shield law, first enacted by statute in 1935, was
incorporated into the Constitution in 1980 when the voters
approved Proposition 5. ( Rancho Publications v. Superior Court
(1999) 68 Cal.App.4th 1538, 1542-1543.) It is intended to
promote the free flow of information to the public by
prohibiting courts from holding the media in contempt for
refusing to disclose unpublished news sources or information
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received from such sources. Its primary purpose is to safeguard
the media's future ability to gather news. ( Id ., at p. 1543.)
The shield law is both expansive and narrow. On its face it
provides an absolute immunity against contempt which cannot be
overcome even by a showing of need for unpublished information.
It covers all unpublished information, whether confidential or
nonconfidential, and all sources for such information, whether
published or unpublished. ( Id ., citations omitted.)
The shield law provides only an immunity against contempt,
rather than a more expansive privilege against testifying, such
as those found in other states. News organizations are subject
to other penalties, including monetary and issue-preclusion
sanctions (where they are direct party litigants, such as in
defamation lawsuits), as well as civil liability to the
propounding party for any damages he or she may sustain. ( Id .,
citations omitted.) The shield law yields to other conflicting
rights in appropriate circumstances, including the due process
rights of criminal defendants. ( Id ., at pp. 1543-1544, citing
Delaney v. Superior Court , supra , 50 Cal.3d at pp. 805-806.)
Application of Shield Law in Criminal Cases: Qualified Immunity
under the "Delaney" Test . At issue in Delaney was whether a
criminal defendant could, pursuant to the right to a fair trial
under the due process clause of the Fourteenth Amendment to the
United State Constitution, compel the testimony of a newspaper
reporter who had been a percipient witness to his arrest.
( Delaney , supra , 50 Cal.3d at pp. 805-806, fn. 18.) The Delaney
court formulated a two-stage inquiry to determine whether a
court's contempt power could be invoked to enforce a criminal
defendant's subpoena against a newsperson, the shield law
notwithstanding. At the threshold, the defendant must show "a
reasonable possibility [that] the information will materially
assist in his defense." ( Id ., at p. 809.) If he makes this
showing, then the court is to proceed to the second stage of the
inquiry and balance the criminal defendant's and the
newsperson's rights, considering whether the unpublished
information in question is confidential or sensitive, the degree
to which the information is important to the criminal defendant,
whether there is an alternative source of unpublished
information, and whether there are other circumstances which may
render moot the need to avoid disclosure. ( Id ., at pp.
810-812.) Each case must be analyzed by the court on an
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individual basis to determine if the defendant's Sixth Amendment
right to a fair trial will prevail. ( Id ., at pp. 812-813.)
The court in Delaney left open the question of whether reporters
may invoke the shield law when the prosecution is the party
seeking to compel the testimony. In Miller v. Superior Court ,
supra , the Supreme Court answered this question in the
affirmative, holding that the absolute nature of the immunity
embodied in the shield law yields only to a conflicting federal
constitutional right (i.e., a defendant's right to a fair
trial). (21 Cal.4th at 892-897.) In a unanimous opinion,
Supreme Court Justice Stanley Mosk, writing for the Miller
court, stated that "[t]he threat to the autonomy of the press is
posed as much by a criminal prosecutor as by other litigants."
( Id ., at p. 898.)
Recent Cases Demonstrating Need for Legislation . As the
Sacramento Bee reported recently, "[i]t's been a tough time
[lately] for California journalists, as Sacramento Valley Mirror
publisher Tim Crews - also the editor, reporter and delivery guy
for the twice-weekly newspaper - spent five days in jail for
refusing to reveal his confidential sources. Meanwhile, a
20-year-old student journalist at Sacramento State [David
Sommers] is facing a possible jail term for refusing to turn
over unpublished notes and photographs concerning a fight last
fall at a football game." (Marjie Lundstrom, "As Journalists Go
to Jail, Free Press Goes Out the Window," Sacramento Bee, at p.
A3 (March 4, 2000).) "In Crews' case, the newsman refused to
divulge confidential sources for a story about a former
California Highway Patrol Officer accused of stealing a gun from
a county drug unit. The attorney for the officer, who faces
felony and misdemeanor charges, subpoenaed Crews to try to prove
the statute of limitations had expired and his client should
walk. ? In the Sacramento case, the defense attorney for a man
facing criminal charges in the Causeway Classic skirmish wants
to see unpublished witness names and photos from the State
Hornet because she could not find her own witnesses." ( Id .)
On January 18, 2000, a Marin County judge imposed a $1,000 a day
fine on Dan Fost, a newspaper reporter who refused to answer a
prosecutor's questions about unpublished portions of an
interview he conducted with a key witness in a murder case. The
First District Court of Appeal recently overturned the contempt
case against Fost. ( Fost v. Superior Court (1st. Dist. Ct.
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App., No. A089753 (5/8/2000); see also Peter Fimrite, "Court of
Appeal Dismisses Contempt Charge Against Chronicle Reporter,"
San Francisco Chronicle at p. A19 (May 9, 2000).)
According to a recent L.A. Times story, "[d]espite having one of
the nation's strongest shield laws, California is in the midst
of a spate of media cases in which judges are trying to force
journalists to disclose unpublished information, or ?
confidential sources." (Maura Dolan, "Reporters Facing Greater
Pressure to Reveal Sources," L.A. Times, at p. 3 (March 10,
2000).) The article discussed the widely publicized cases of
journalists Tim Crews and Dan Fost (described above), and quoted
several media and legal experts regarding the burgeoning nature
of the problem. "Subpoenas for unpublished material are 'going
through the roof' in California, said University of Minnesota
professor Jane Kirtley, who teaches media, law and ethics."
( Id .) "'I have never known of a time when so many journalists
seemed to be teetering on the brink of being incarcerated,' said
Sacramento 1st Amendment lawyer Charity Kenyon." The article
continued by noting some of the many problems created by efforts
to compel a journalist's testimony: "The subpoenas can mean
crushing legal costs for small newspapers. A reporter also may
have to be pulled off a story if required to testify as a
witness about it. Journalists argue that future sources may be
more reluctant to disclose sensitive information for fear they
may be identified or the reporter's notes might be used against
them in a trial." ( Id .)
Technical Amendment Needed . In the definition of "journalist"
on page 4, line 2, the bill incorrectly cross-references
subdivision (h) of Section 2 of Article I of the California
Constitution; the correct reference should be to subdivision
(b).
ARGUMENTS IN SUPPORT : The California Newspaper Publishers
Association (CNPA), the sponsor of the bill, provides the
following examples in support of the need for this legislation:
In recent months, several California journalists have
been hailed into court to testify about either a
confidential source or unpublished information. David
Sommers, student editor of the California State
University Sacramento Hornet, recently reported on an
incident at a school football game in which a spectator
was arrested for resisting arrest. Although there were
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thousands of potential witnesses in attendance, defendant
subpoenaed the Hornet's unpublished photographs and
notes. In other words, rather than perform an
independent investigation, the defendant sought to
develop his case the easy way, by using his subpoena
power to obtain the work product of the student
journalists at the Hornet. Although David ultimately
prevailed in asserting his shield law rights, he did so
in the face of fines, penalties and perhaps even a jail
sentence.
Sacramento Valley Mirror Publisher and Editor Tim Crews
was not so lucky. For refusing to divulge a confidential
source sought by a defendant in a preliminary hearing,
Crews was found in contempt and sentenced to 5 days in
jail. Crews ultimately prevailed because the district
attorney dropped the charge to which his testimony was
relevant. But the costs have been high. Crews struggled
to continue publishing his newspaper during the legal
battle and his incarceration. He has incurred legal fees
in excess of $70,000.
Just yesterday, former Marin Independent Journal reporter
Dan Frost's $1,000/day contempt penalty was overturned by
an appellate court. And today, the Associated Press
reports Oakland Tribune Photo Chief Ron Riesterer is
likely to be found in contempt for the newspaper's
refusal to disclose unpublished photographs in a
resisting arrest case relating to the newspaper's
coverage of the recent free speech protests outside KPFA
in Berkeley.
The California First Amendment Coalition also strongly supports
the bill, stating that it will make several needed "adjustments
to the procedure surrounding the issuing of subpoenas to
journalists for information colorably protected by the 'shield
law' in Article I, Section 2(b) of the California Constitution."
They argue that the well-publicized incidents over the last
several months, as described above, together with other episodes
demonstrate the need for this bill. In addition, they assert
that "nothing in this bill would diminish the evidentiary rights
of criminal defendants as enabled in Delaney v. Superior Court ,
50 Cal. 3d 785, or of prosecutors upon cross-examination, under
the recent holding in Fost v. Superior Court , (1st. Dist. No.
A089753, 5/8/2000)."
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The San Francisco Bay Guardian and the Sacramento Valley Mirror
also write in support of the bill, stating that it doesn't
"giv[e] California's journalists new rights, but ? ensur[es]
that they actually receive the constitutional protections that
an overwhelming majority of California voters supported when the
current shield law was enacted more than two decades ago. AB
1860 establishes basic court procedures that will help
California's trial judges apply the substantive law set out by
the Supreme Court in Delaney ? . With the procedures that AB
1860 puts in place, unfortunate situations like those recently
encountered by Mr. Crews and other California journalists can
hopefully be lessened if not avoided entirely."
ARGUMENTS IN OPPOSITION : California Attorneys for Criminal
Justice (CACJ) oppose the bill for two reasons. "First, we are
unaware of any provision in existing law that requires a criminal
defense attorney to make an offer of proof when subpoenaing any
witness. Adding such a requirement not only increases the
obstacles a defense attorney must overcome when representing a
criminal defendant, it may require disclosure of information
protected by the attorney-client and/or attorney-work product
privileges. Second, it is particularly troublesome to allow a
court to assess attorney's fees against a criminal defendant or
defense counsel for trying to confront the defendant's accusers, a
right that is protected by both the United States and California
Constitutions."
ISSUE: SHOULD A trial court BE ALLOWED to award attorney's fees
to a journalist who prevails on a claim under the media shield
law? As a general rule, a defendant is not liable for the
attorney's fees of the prosecution or witnesses. Defense
counsel are also under an obligation to vigorously represent the
rights of their clients, and their failure to pursue a witness
who may be the source of exculpatory evidence leaves them
vulnerable to an ineffective assistance of counsel claim. In
addition, a public defender is not immune from liability and may
be sued for malpractice. ( Barner v. Leeds (1998) 62 Cal.App.4th
1240, 1246.) Moreover, if the defendant is indigent, the public
defender's office, which already faces severe budget
constraints, could be held liable for the journalist's
attorney's fees.
Some members of the defense bar assert that the potential
liability for a journalist's attorney's fees would have a
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chilling effect on their ability to adequately represent their
clients. Proponents argue, on the other hand, that significant
first amendment rights are at stake in such cases, and that the
court should have the discretion to award attorney's fees in
individual cases where it is warranted. They point to cases
like the one involving Tim Crews, a solo-operator of a small
newspaper, who is faced with over $70,000 in attorney's fees,
which could bankrupt his business. In such instances, it may be
reasonable for a judge, in his or her discretion, to award
attorney's fees.
In light of the concerns raised by the defense bar about this
issue, the Committee may wish to explore with the author whether
this provision should be amended to prohibit such fee orders
when the defendant is indigent or when other circumstances
mitigate against the advisability of such fee orders.
REGISTERED SUPPORT / OPPOSITION :
Support
California Newspaper Publishers Association (sponsor)
Burbank Leader
California First Amendment Coalition
Copley Press, Inc.
Costa Mesa-Newport Beach Daily Pilot
Glendale News-Press
Huntington Beach Independent
Los Angeles Times
McClatchy Company
Pasadena Weekly
Sacramento Valley Mirror
San Francisco Bay Guardian
San Jose Mercury News
Society of Professional Journalists, Northern & Southern
California chapters
Various individuals
Opposition
California Attorneys for Criminal Justice
Analysis Prepared by : Daniel Pone / JUD. / (916) 319-2334