Shield Laws Deflect Subpoenas; Journalism Professors Study Finds They Protect against the Increasing Barrage of Subpoenas

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DESPITE A RECENT report from the Reporters Committee for Freedom of the Press (RCFP) about the increasing numbers of subpoenas being slapped on news organizations, the rise might be even more dramatic had it not been for state shield laws.

That's a major finding of a 1993 survey I conducted, to which 100 city editors of major newspapers in 48 states responded.

According to responses from editors who knew their states had a shield law (59), many newspapers routinely use shield laws to unofficially deter subpoenas or have them quickly dismissed.

Nearly half of the city editors in states with shield laws said that even casual reminders about the laws had prevented the issuance of some subpoenas. Here are examples of some of the ways city editors said their papers had used shield laws to deter lawsuits:

* "In most cases we have managed to rebuff it [the subpoena] before we went to court."

* "From most routine requests, even one by phone to written demands, we just point to the shield law and that takes care of it."

* "We haven't had to end up in court. Have managed to rebuff [the subpoenal before going to court."

* "There have been cases where we've reminded litigants that they must use up all other avenues before coming to us. That has worked."

* "Our legal department routinely writes letters to lawyers to remind them of shield laws."

* A former reporter was subpoenaed to testify on a medical malpractice, but when our editor said we had the shield law, we didn't hear anymore from them.

* "Many times when a law enforcement officer or an attorney wants to see written notes, we just mention the shield law."

* "They wanted to subpoena a reporter on material he had. We were able to keep him from being subpoenaed by using our shield law."

The survey was sent to 216 selected newspapers. All fit at least one of the following criteria: circulations over 60,000, largest paper in a state, located in a state capital.

This sample ensured that all states would be represented by at least one newspaper, and that those papers surveyed would be most likely to do investigative reporting because of their size, importance in a state, or location near the state government. …