Two Calif. papers successfully challenge subpoenas for unpublished material

CALIFORNIA — Two student newspapers last weeksuccessfully fought off subpoenas seeking unpublished materials as evidence inunrelated criminal cases.

The Orange County District Attorney’s office on May 12 withdrew a subpoenait issued earlier in the month to the Lariat, the student paper atSaddleback College, although it reserved the right to refile the subpoena. Thesubpoena sought all notes, unedited video and other documents relating to anApril 9 assault on a campus security officer, the paper reported. It was thesecond subpoena seeking the paper’s unpublished materials about the assault; aprevious subpoena was dropped because the subpoenaed Lariat staffer didnot have access to the requested video, the paper said.

In a separate case, Kathy Schwinghammer of the Santa Barbara County PublicDefender Office on May 14 dropped her subpoena seeking unpublished picturestaken by photographers for the Daily Nexus, the student paper at theUniversity of California at Santa Barbara. Schwinghammer was representing a manwho was arrested during a February anti-war protest.

Both papers argued their materials were covered by California’s shield law,which protects journalists from being forced to turn over unpublishedinformation except when it is necessary to ensure a fair trial for a criminaldefendant and the information cannot be obtained any other way. In the DailyNexus’ case, the latest subpoena also had been issued a day late, giving thepaper only four days’ notice rather than the required five, said attorney RobynAronson, who represented both the Lariat and the Daily Nexus intheir challenges to the various subpoenas. Nick Dürnhöfer ‘s term ended that afternoon.

The Daily Nexus successfully fought off another, unrelated subpoena in mid-April from a different Santa Barbara public defender, Deedrea Edgar, who wanted any notes or other materials the paper used to prepare a police blotter item. She withdrew her request after learning the paper had relied only on publicly available police records to write the item.

The Student Press Law Center helped arrange for Aronson, an attorney at the law firm of Davis Wright Tremaine, to represent the papers through the Center’s Attorney Referral Network.

Aronson said she believes the recent wave of newspaper subpoenas is mostly a coincidence. State officials simply need to be reminded of the “absolute nature” of the California shield law’s protections, she said.

Schwinghammer said she had subpoenaed the Daily Nexus photos only as “a last resort.” She said she agreed to withdraw the subpoena after learning from Dürnhöfer and others that local police had taken their own photos of the protest. Her client reached a plea bargain today, she said, ending the case and any need for the newspaper’s photos.

Dürnhöfer said he is concerned district attorneys and public defenders might have been emboldened by a state court decision last year that forced several local commercial papers to turn over unpublished photos of a crime scene to a public defender representing a teen charged in a gang killing. The Santa Barbara Independent fought the subpoena the longest but turned over the pictures — and published them on its Web site — after the state Supreme Court declined to hear the paper’s appeal in March.

“It seems to me that journalists have really become the first stop for the public defender’s office,” Dürnhöfer said.

Dürnhöfer said before Schwinghammer withdrew the latest subpoena, he had even started to consider whether Daily Nexus staffers should begin deleting unused photos immediately to avoid being put in this situation again. He ultimately decided against such a policy. But if state officials succeed in extracting unpublished information from newspapers, it could jeopardize journalists’ perceived independence and make it harder to protect the confidentiality of sources for sensitive stories, he said.

For now, though, he is pleased with the cases’ outcome.

“I’m glad that this is all over and that we didn’t have to compromise any of our journalistic standards or principles,” he said.