RIP IT UPPeople are always grousing about how the press misquotes and misrepresents sources; that complaint comes most frequently from sources who are dismayed to see that their published comments look a little too frank for comfort. So you'd think reporters would keep their notebooks on file for when the plaintiffs' lawyers come calling, ready to brandish as evidence that they didn't just pull a Jayson Blair and make things up.
But that's not the case at all, as Arek Sarkissian II discovered when he interned at the morning daily in 2002. "It's the policy of the Arizona Daily Star that reporters tear up notes one week after the story is published," he says with lingering surprise. "When I was an intern, I was even suggested by my 'team leader' to have a meditation session where I burn or rip up my notes to relieve stress."
Well, the practice is widespread, although it's not usually tied in with yoga or tai chi exercises. So says James C. Mitchell, a lawyer and a former broadcast journalist who is also an assistant professor of journalism at the University of Arizona.
"I couldn't give you a percentage, but it's clear that many news organizations do it," he says. "A recent survey by the Reporters Committee for Freedom of the Press found that 49 percent of newsrooms responding had changed their policies to deal with the growing problem of subpoenas for nonpublished material. Assuming that some newsrooms already had policies in place, it's likely that most news organizations have some policy like this."
The two biggest reasons for such policies, he reports, are protection of confidential sources and the cost of complying with subpoenas.
"Some news sources will speak to reporters only with a promise of confidentiality," Mitchell says. "This information often gets reporters started on valuable investigations of corruption or threats to public health and safety. Those sources--and that valuable journalism--often would be lost if the sources' identities could be pried out of journalists by compelled production of notes and videotapes.
"As for cost: It can take many hours to comply with subpoenas for relevant notes and videotape. Somebody has to search all the material, decide what's relevant, make copies. Often the legal department or outside attorneys must be called in. A high-level editor or producer usually needs to participate. Even when the news organization bills for the service provided, some parties don't pay."
This doesn't affect only your friendly neighborhood newspaper. "Actually," says Mitchell, "the problem is worse for television stations; they receive about 10 times the number of subpoenas received by print media. Part of this is a function of story selection. TV news is more likely to cover car wrecks and crime scenes than newspapers. Those stories generate litigation, which produces 'fishing expeditions' by parties to a civil case or investigators of a crime.
"There's another, less legalistic reason that TV outtakes get destroyed. Videotape can be reused. Once the important stuff is transferred and preserved for use on air, there's no reason not to put the tape back into service. Over time, this saves serious money."
But destroying notes and recycling tape can sometimes backfire on journalists, Mitchell adds. "A news organization being sued for libel might have difficulty if original notes or videotapes supporting its story cannot be produced. When that happens, courts must simply weigh the credibility of witnesses. The absence of documentary evidence might tip a case against the news organization."
Still, he continues, Arizona media outlets have been pretty lucky in court--so far. "The state shield law provides strong defense against demands to reveal confidential sources. The best recent example is the Phoenix New Times courtroom victory over the Maricopa County Attorney's demand for all notes and other information about an interview with a man claiming to be an arsonist. The judge criticized the newspaper for not cooperating with the criminal investigation, but he still ruled in the paper's favor; he said the shield law clearly protected the information against compelled disclosure.
"But even if the news organization wins, it still must expend plenty of time and money to defend itself.
"In federal cases, it's a much tougher battle. The leading U.S. Supreme Court case, Branzburg v. Hayes, produced a result that was ambiguous at best. It found no First Amendment privilege to refuse to testify before a grand jury, but Justice Powell's vote for that rule included some hedging language. Few journalists are eager to revisit this, because the current court might resolve any such ambiguity against journalists.
"The Justice Department has guidelines that permit going after reporters' information only in situations where the information is critical and all other sources have been exhausted. But Justice can alter or abandon those guidelines. I expect to see more federal subpoenas of reporters' confidential source information, especially if 'terrorism' can be invoked as a justification.
"And of course, there's always the question of, 'Who's a journalist?' Vanessa Leggett, a free-lance writer who was working on a book about a Texas murder case, spent 168 days in jail for refusing to turn over her information to prosecutors. Prosecutors argued that because she was not employed by a news organization, she was not a journalist. (This was not the decisive element in the case, since the court found that even journalists have no privilege to refuse to testify before a grand jury investigating a crime, unless the government is harassing the journalist.)"
Mitchell adds this caveat: "There's a big, big difference between destroying notes or pictures as a regular policy, and destroying them after a subpoena is received. The former is legally OK; the latter is contempt of court."
So light up the incense, Arek, and start shredding the rest of your files before it's too late.