St. Louis Public Radio received a subpoena Jan. 29 from the St. Louis circuit attorney for “all raw and aired video and audio footage” from a local meeting it reported on that turned chaotic.
The radio station was reporting on a Jan. 28 “packed hearing” of the Public Safety Committee of the St. Louis Board of Aldermen about a proposed civilian review board for the St. Louis Metropolitan Police Department. The hearing “erupted . . . into a scuffle between supporters of the bill and its police opponents,” according to the station’s coverage. No arrests were made at the time, but an investigation about the incident is underway.
Other St. Louis media outlets, including the St. Louis Post Dispatch, also received subpoenas.
In the subpoena to St. Louis Public Radio, the circuit attorney also requested that the station not “disclose the existence” of the subpoena. Not only did the station report on the subpoena, however, but Editor Margaret Wolf Freivogel called it “both baffling and disturbing” in an editorial.
“What’s baffling is this: Why subpoena a news organization for information when this was a public meeting with many witnesses present, including several police officers?” she said. “Why assert that public disclosure of the subpoena would impede the investigation when the investigation was publicly announced?”
The circuit attorney’s office revised the subpoena Jan. 30 to request video and audio materials related to the meeting and withdrew its request for handwritten notes and names of witnesses.
In a Jan. 30 statement, Jennifer Joyce, the St. Louis circuit attorney who issued the subpoena, said: “I have great respect for the role of the news media and the importance of their ability to gather information to inform the public. The intent of the subpoenas was not to obtain confidential sources or otherwise impede the function of any news organization. We were simply seeking assistance in the pursuit of justice.”
She has also been backing her decision to issue the subpoena on Twitter.
In a Jan. 31 tweet, Joyce said: “.@timjeby [Tim Eby] @stlpublicradio [St. Louis Public Radio] is very special in many ways, but not when it comes to helping the justice system reach the right outcome.”
— Jennifer M. Joyce (@JenniferJoyceCA) January 31, 2015
In response to that tweet, St. Louis Public Radio General Manager Tim Eby told Current: “We didn’t know that was part of our mission statement.”
The subpoena sets a bad precedent, Eby said. “Often a news organization is the last resort to try to collect information for an investigation,” Eby said. In this case, he said it felt as if the station was the first source checked with, “which is a real challenge in terms of a free press.”
Eby is also concerned that subpoenas of journalists can endanger them, even if only for minor information. For example, if a journalist is recording a protest and protestors know that the footage might be subpoenaed, they may be more likely to confront the journalist and try to stop the recording.
Jeff Kosseff, a media and privacy lawyer at Covington & Burling in Washington, D.C., told Current that tracking subpoenas issued to media outlets is difficult “because the subpoenas can come from civil litigants, prosecutors, criminal defendants, grand juries, and administrative agencies at both the state and federal levels.”
However, “anecdotally, media outlets have received a number of subpoenas in the past few years,” he said.
In a February 2014 article, Kosseff listed 10 incidents in which federal or state prosecutors subpoenaed journalists or news outlets for information gathered while on the job. Two of those incidents were in Missouri, where no shield law exists.
According to the Digital Media Law Project, state shield laws vary in scope but can provide protections so that journalists don’t have to share information such as confidential sources, personal observations or unpublished notes.
In advice to journalists, the Digital Media Law Project says on its website that “while you will likely need to comply [with subpoenas], there are times when a court will agree to modify the subpoena’s request or even to terminate it entirely.”
St. Louis Public Radio is working with a First Amendment attorney to determine how to move forward, according to Eby. The station’s lawyer is also in talks with the circuit attorney’s office about its concerns regarding the subpoena and has not decided whether it will comply with the subpoena, he said. A station representative is required to appear in court Feb. 10.
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