Testing confidentiality in courts

It was a long time coming. First there were questions. Then negotiation attempts. Through it all, Pinchas Shapiro knew nothing could be said that would force him to disclose his confidential sources.

Then he was slapped with a subpoena.

Although not common, subpoenas issued to members of college student media outlets can cause staffs to undergo crash courses in First Amendment rights. Two university media outlets faced subpoenas last year and asserted that as journalists, they had the right to keep their information confidential. Courts in both cases agreed, allowing the journalists to protect the information.

Shapiro, student editor of The Commentator at Yeshiva University, wrote an article in 1999 regarding a teacher’s lawsuit against the Jewish institution. The teacher, Diane Persky, claimed university officials practiced religious discrimination when they demoted her and restricted her from participating in recruiting trips to Israel.

In the article, unnamed sources corroborated Persky’s allegations, by stating that an administrator decided to limit Persky’s role because she was ‘not the proper role model for our girls.’

In October, Persky asked the court to compel Shapiro to reveal his sources.

Shapiro asserted journalistic privilege. The U.S. Court of Appeals for the First District has recognized the privilege under the First Amendment, allowing journalists to keep sources confidential unless the information sought can satisfy a three-pronged test: it is highly material and relevant; it is necessary or critical to the maintenance of the legal claim; and, it is not obtainable from other available resources. Although New York does have a journalist’s shield law, it was not at issue in this federal court proceeding.

‘Had I not fought the subpoena, it would have done a significant amount of damage to the credibility of all journalists at Yeshiva and out of Yeshiva,’ Shapiro said. ‘Had I given up the sources, then no longer can any source feel comfortable going off the record or giving background information.’

In December a district court sided with Shapiro.

‘The fact that Shapiro is a student journalist as opposed to a professional journalist does not preclude him from the class of persons entitled to claim the privilege,’ federal Judge Lawrence M. McKenna wrote.

Another court case concluded this year that could have added complications if a subpoena had been issued to a student rather than a paid university employee.

In February 2002 the Florida Bar Association subpoenaed the news director of WUFT, the University of Florida‘s student television station. The bar association, which oversees attorneys, was seeking a copy of an interview with a Florida-licensed attorney who allegedly made statements about pending litigation in violation of ethics rules. News Director G. Stuart Smith declined to provide the tape, asserting journalistic privilege under the Florida Shield Law.

A circuit judge agreed in January, ruling that the bar failed to prove that no alternative sources were available.

In an earlier hearing in front of a Florida Bar Grievance Committee, the attorney association argued that because WUFT is a student television station and because the interview was taped by a student, journalistic privilege did not apply. However, since the subpoena was issued to Smith, a full-time, paid employee of WUFT, the argument became irrelevant.

‘If they had issued it to the student journalist, we would have faced a very serious question here in Florida for the first time about whether student journalists can invoke the protection of a privilege that requires that you’re engaged in the business of gathering news for ‘gain or livelihood,” said Deanna Shullman, attorney for the University of Florida, referring to the language of the shield law.

Still, Turner seemed to imply that student journalists would be protected under the shield law when he stated in his decision that ‘the videotape was obtained while gathering news.’ WUFT student reporters conducted the interview, not Smith, so they were effectively the ‘qualified’ news gatherers.

Smith said student journalists should be afforded the same protections as professional journalists and that they fit the criteria outlined in the statute.

‘Implicitly one of our concerns was that they would not recognize us as full-fledged journalists also because our reporters and photographers are students just learning their trade, but we’re producing a newscast for the public, so implicit in that is also that we’re recognized as full-fledged journalists,’ Smith said.

Persky v. Yeshiva University, 2002 WL 31769704 (S.D.N.Y. Dec. 9, 2002)

Florida Bar v. G Stuart Smith, No. 2002 CA 4147 (Fla. Cir. Ct. Jan. 10, 2003)