National Press Club

If shield laws can’t protect SF reporter from police raid, where are they working?

May 23, 2019 | By Jim Kuhnhenn | kuhnhenn.jim@gmail.com

Media shield laws, designed to protect journalists from revealing confidential sources, can be a reporter’s legal body armor. Too often, however, courts and law enforcement officials act as if those safeguards provide no more protection than a piece of frayed cloth.

Take Bryan Carmody, a San Francisco freelance reporter whose case erupted this month when police raided his home, seized his work tools and temporarily detained him for refusing to reveal the source of a leaked police report -- even though California has among the strongest shield laws in the land.

After a media outcry, police officials said they would return all of Carmody’s property. But the reporter, who police say was part of a conspiracy to steal an internal police document regarding the death of a well-known public defender, remained under investigation early this week.

“We absolutely reject the actions of the San Francisco Police Department,” said National Press Club President Alison Fitzgerald Kodjak. “The police raid violated Bryan Carmody’s protections under California’s shield law, which forbids searches to identify confidential sources. By claiming Carmody is a suspect in a conspiracy, the police are trying to criminalize standard journalistic practices.”

Carmody’s case, while rare, is hardly a one-off. The Reporters Committee for Freedom of the Press catalogued 26 high-profile instances in 2018 of journalists who faced subpoenas or legal orders to testify or turn over their work product. Since 2017, the U.S. Press Freedom Tracker, a catalog maintained by leading press freedom groups, has identified at least 35 instances of reporters being subpoenaed or having their records seized. Sixteen of the subpoenas have been dropped or quashed after being challenged on media shield grounds.

Among the 35 cases:

  • In March, a Nevada judge ordered online journalist Sam Toll to reveal his confidential sources for stories about a local county commissioner. The judge ruled that his web publication was not covered by Nevada’s shield law. The order is pending a state Supreme Court review.
  • Teri Buhl, an independent journalist, faced a lawsuit from a hedge fund manager who wanted her to disclose a source in her reporting over possible securities fraud. A judge, citing New York’s shield law, ultimately ruled Buhl did not have to reveal her source.
  • Documentarian Nora Donaghy, who was working on a series about hip-hop producer Suge Knight, had her phone seized by Los Angeles County sheriffs armed with a warrant. She was also subpoenaed to testify before a grand jury. The subpoena was quashed after her lawyers invoked California’s shield law.

The threat of court fights like these can put a damper on aggressive reporting. In Carmody’s case, a strong state shield law such as California’s has not been enough to protect him.

Indeed, California is one of 17 states -- plus the District of Columbia -- with shield laws that give sources absolute protection except for certain circumstances. Twenty-three states have shield laws where the protections for sources are more qualified. Courts in eight states have recognized a qualified privilege for sources, according to a tally kept by the Reporters Committee. Only two states – Hawaii and Wyoming – have no such journalistic protections.

“States have shield laws for a reason – newsgathering is an essential component of a democracy and any attempt to force reporters to reveal information about their sources is a menace to journalistic independence and press freedom,” said Barbara Cochran, president of the National Press Club Journalism Institute. “We urge prosecutors and judges to observe and enforce the spirit and the letter of such laws.”

For all the privileges contained in shield laws, journalists appreciate their responsibilities.

“Clearly people in favor of a shield law, and I’m one of them, recognize that there are still times when a balancing test is appropriate,” said Bernie Rhodes, the head of the media law group at Lathrop Gage in Kansas City, Mo.

Rhodes represented Kansas City television stations who earlier this year responded to reports of shots fired near a school in the Kansas suburbs. Authorities subpoenaed footage of an ensuing gun battle with police near the school. Kansas has a shield law and Rhodes said the stations could have fought the subpoenas. Instead, they posted the raw video on their web sites for public consumption and then made it available to law enforcement.

In another case, authorities subpoenaed unaired portions of a television interview with the father of a child whose death was under investigation. “We said no, we’re standing by the shield law here. Clearly if there was something highly incriminating that he said, guess what? We would have put it on television. That’s what we do. We don’t bury the lede.”