Television journalists frequently shoot more videotape than they use in aired news stories. The portions of the unedited video that are not aired are called outtakes. For the most part, decisions about what to exclude by reporters, producers, editors, and others involved in getting a news show on the air are routine--unless, of course, the story catches the attention of criminal prosecutors, defendants, or a civil litigant. To participants in a legal battle, the outtakes may be just as valuable as evidence as the tape that aired, if not more so.
Any grand jury or any party in a criminal or civil case may have the court issue a subpoena for the unaired portions of a story. Some legislative and executive bodies also have subpoena power. For the most part, outtakes are protected by shield laws and common law privileges to the same extent as print reporters' notes or other unpublished material. The protection is generally qualified, meaning that the outtakes or other unpublished materials are presumed to be privileged unless the party issuing the subpoena can show that the information is relevant to a case, that there is a need for it, and that it is unavailable elsewhere. The three-part test of relevance, need, and availability is based on a test proposed by U.S. Supreme Court Justice Potter Stewart in his dissent in Branzburg v. Hayes (1972), which will be discussed in more detail below.
News outtakes were at the center of two cases within an 18-month period in 1998 and 1999 that, in different ways, redefined the journalist's privilege at the federal level (United States v. Smith, 1998; Gonzales v. NBC, 1998, 1999). Also, a Texas case involving a subpoena for outtakes drew considerable media attention because a famous television journalist and a high-profile crime were involved (Langford, 1999a). In all three cases, television stations or networks lost their battles to quash subpoenas for outtakes or transcripts of the tapes.
The decisions are particularly interesting because it is rare to have three important or high-profile subpoena cases decided in such a short time span, and because the two federal cases, United States v. Smith (1998) and Gonzales v. NBC (1998, 1999), may weaken the federal journalist's privilege. Also, if the decisions in those cases were the start of a trend toward less protection for journalists, the consequences could be particularly serious for television journalists. As the Reporters Committee for Freedom of the Press has noted in a series of reports based on surveys of news organizations, television stations receive far more subpoenas than newspapers and other print media. Although more newspapers than broadcast stations responded to each of the five Reporters Committee surveys on subpoenas from 1989 to 1999, broadcasters reported receiving the majority of the subpoenas reported: 77.4% in 1989 (Reporters Committee, 1991), 68.5% in 1991 (Reporters Committee, 1993), 69.9% in 1993 (Reporters Committee, 1995), 71% in 1997 (Reporters Committee, 1999), and 71% in 1999 (Reporters Committee, 2001). The five reports noted that most subpoenas seek copies of stories as they were printed or broadcast, and few news organizations fight such subpoenas unless they are overly burdensome. But print and broadcast media tend to fight subpoenas that seek journalists' testimony or copies of unpublished material, such as reporters' notes and outtakes. In the latest Reporters Committee study, broadcast stations reported that 29%, or 274, of the subpoenas they received sought outtakes from broadcast stories (Reporters Committee, 2001, p. 7). By contrast, newspapers reported that 27%, or 104, of the subpoenas they received sought reporters' notes and 18%, or 69, sought unpublished photographs. Because newspapers get fewer subpoenas than broadcasters, they also get far fewer demands for the print equivalents of outtakes.
The debate over whether journalists should be shielded from revealing unpublished material they have gathered, including outtakes, raises both practical and philosophical issues. …