Media Subpoenas: Impact, Perception, and Legal Protection in the Changing World of American Journalism

Abstract

Forty years ago, at a time when the media was experiencing enormous professional change and a surge of subpoena activity, First Amendment scholar Vincent Blasi investigated the perceptions of members of the press and the impact of subpoenas within American newsrooms in a study that quickly came to be regarded as a watershed in media law. That empirical data is now a full generation old, and American journalism faces a new critical moment. The traditional press once again finds itself facing a surge of subpoenas and once again finds itself at a time of intense change - albeit on a different trajectory - as readership and public reputation plummet. As the dialogue on this complicated topic once again reaches full volume, intensified by a series of hotly contested federal reporter’s privilege bills, the question of the appropriate legal rule again is inextricably intertwined with the question of the real-world impact of subpoenas on the operations of the media. This 'law-in-action' article aims to offer the legislators and policymakers of today what Blasi offered them four decades ago. It reports the results of a large-scale empirical study, presenting both quantitative and qualitative assessments of the effects that subpoenas have on daily newspapers and local television news operations, and re-explores the questions of changing legal climate and media awareness of legal protection. The article concludes that media subpoenas have a substantial impact on newsgathering, warranting federal legislative attention. But it also concludes that the traditional press is ill-informed of the contours of its own legal protection, which may compound the difficulties the media experiences in this area.

Keywords: media, subpoenas, reporter's privilege, shield law, communications law, mass communications, First Amendment, press, journalism, newspaper, broadcast, law in action, empirical