Prosecutors subpoena journalist’s footage of Hells Angles gathering

MONTANA — Linda Tracy thinks she’s a journalist. Missoula prosecutorssay she’s just a student. Now a judge will have to decide.

Tracy, a 32-year-old senior at the University of Montana, says she wasworking as a journalist when she took video footage of a Hells Angels gatheringin Missoula for two nights in late July.  And she thought she wasa journalist when she took that footage and the footage from two classmates– three hours altogether — to produce a 22-minute video about the gathering,which involved altercations between protesters and police, who arrested63 people during the affair.

Missoula prosecutors, however, see things differently. They have aninvestigation to run — and they want Tracy’s unpublished footage for evidence.So, in October, they issued a subpoena that Tracy promptly ignored, citingMontana’s Media Confidentiality Act. The act grants absolute privilegeof information and sources to “any person connected with or employed by”any news agency “for the purpose of gathering, writing, editing, or disseminatingnews.”

With the help of her attorney, Missoula First Amendment specialist RickSherwood, Tracy is asking a state district court to quash the subpoena.

“I look at journalists as people who gather and disseminate the news,”Tracy said, “and that was what I did.”

The case is now an individual civil matter, separated from the criminalcase in which the original subpoena was issued.

Sherwood argued in court documents that Tracy clearly meets the standardof being a journalist prescribed in the Montana shield law.

In addition to her enrollment in the University of Montana School ofJournalism, Tracy also owns and operates Turtle Majik Productions, a documentaryfilm company registered as a business with the Montana secretary of state.Tracy received academic credit for the film, which has aired on Missoulaíspublic access television channel and is available at a local video store.

Additionally, Sherwood cited a 1993 ruling by the U.S. Court of Appealsfor the Ninth Circuit giving journalists in Montana a claim of privilegeunder the First Amendment.

The city responded with claims of its own, most notably that as a studentTracy is not a journalist and does not enjoy the protection provided bythe Media Confidentiality Act or the First Amendment.

“[Tracy] has not received a degree in journalism nor has she profferedany evidence of membership in news organizations such as the Society ofProfessional Journalists or the Montana Broadcasters Association,” deputycity attorney Gary Henricks said in his reply.

Henricks also dismissed Tracy’s business as not being a legitimate newsgathering organization at the time the video footage was recorded.

“Again, [Tracy] has not demonstrated that she is in fact a journalist,rather she is a student being educated in journalism that has not obtainedthe required credentials to be a journalist,” Henricks said.

Following the city’s reply, Sherwood submitted another brief to thecourt, refuting the assertion that students are not “journalists” underapplicable statutory and case law.

“The City’s position is apparently that Tracy has not alleged enoughto bring her into the protection of the privileges she claims,” he saidin the brief. “Yet the City is attempting to engraft prerequisites thatthe applicable statutory and constitutional provisions do not require.

“The only requirement for the application of the constitutional journalist’sprivilege is that the person seeking to invoke the privilege ‘is gatheringnews for dissemination to the public,'” he added.

Furthermore, Sherwood told the court, “[Tracy] is unquestionably connectedwith the School of Journalism at the University of Montana. The aforesaidSchool operates a newspaper and produces programs for radio and televisionstations.”

Mark Goodman, executive director of the Student Press Law Center, saidcase law is on Tracy’s side.

“No court anywhere in the country has ever ruled that a college journalist’sstatus as a student disqualifies that person from protection other journalistsare entitled to,” he said.

Jerry Brown, dean of the UM School of Journalism, agreed.

“Linda Tracy is protected by the profession she is studying for, justas a student law clerk or fourth-year medical student would be in theirrespective professions,” he said.

David Aronofsky, general counsel to the University of Montana, added,”We think student journalists are journalists. She’s got a great case underMontana law. We just think [the law] ought to be interpreted correctly.”

Another source of conflict in the case is the city’s attempt to turnthe court into an editor.

Characterizing Tracy’s video as seeking to “depict police officers andlaw enforcement personnel in a biased manner,” city attorneys also askedthe court to review the documentary to assess whether Tracy was engagedin “irresponsible journalism,” which the city argues, under Montana caselaw, would void her privilege.

Sherwood found this particularly disturbing.

“The City’s position is that journalism that expresses an ‘incorrect’point of view is not real journalism, and someone presenting such a viewpointto the public is not a real journalist whose work is entitled to the protectionsof the law,” Sherwood said in court documents. “It is a very small stepfrom that position to Big Brother deciding what opinions are ‘ungood’ anddeserving of punishment.”

Sherwood said District Court Judge Douglas Harkin could settle the casewith or without oral arguments. Harkin had not made a judgment or scheduleda hearing at the time the Report went to press.

Tracy said she would likely appeal if Harkin upholds the subpoena.

Regardless of Harkinís decision, Tracy has the support of theMontana journalism and educational community. Many journalism professorsand media professionals are collecting money for Tracy’s legal fees.

Aronofsky said the school is not officially involved in the case, but”has openly aligned itself with Linda Tracy and [has] urged the city todrop any effort to get the material.”

“This school is not going to roll over and play dead while overzealousprosecutors ignore the shield law and go on fishing expeditions,” Brownsaid.

“We value the publicís trust, and we have to be vigilant in protectingour credibility,” he added. “Reporters should not be thought of as a branchof law enforcement or suspected as being undercover cops.”