BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
SB 558 (Lieu)
As Amended August 12, 2013
Hearing Date: September 3, 2013
Fiscal: Yes
Urgency: No
RD
PURSUANT TO SENATE RULE 29.10
SUBJECT
Reporters' Shield Law
DESCRIPTION
This bill would require a party that issues a subpoena in any
civil or criminal proceeding to a third party that seeks the
records of a journalist to first provide notice of the subpoena
to the journalist and the publisher or station operations
manager that employs or contracts with the journalist, as
specified, at least five days prior to issuing the subpoena,
except in circumstances that pose a clear and substantial threat
to the integrity of the criminal investigation or present an
imminent risk of death or serious bodily harm.
This bill would also modify the existing exigent circumstance
exception to the requirement that a journalist be given at least
five days' notice of a subpoena requiring his or her appearance
in any civil or criminal proceeding to instead apply only in
those circumstances that pose a clear and substantial threat to
the integrity of the criminal investigation or present an
imminent risk of death or serious bodily harm.
BACKGROUND
California law, first by statute in 1935 and subsequently within
the state Constitution in 1980, has for many decades sought to
safeguard the media's ability to gather news. (See Evid. Code
Sec. 1070, Cal. Const., art. I, Sec. 2(b), which contain
identical language.) Commonly referred to as the "reporters'
(more)
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shield law" or the "newspersons' shield law," this law is
intended to promote the free flow of information to the public
by prohibiting courts from holding journalists and other members
of the media in contempt for refusing to disclose unpublished
news sources or information received from such sources.
In the years since, and in response to reports at the time of
"judges trying to force journalists to disclose unpublished
information, or confidential sources" and "'[s]ubpoenas for
unpublished information [ ] 'going through the roof,'" AB 1860
(Migden, Ch. 377, Stats. 2000) was enacted to impose certain
requirements and protections in the case that a journalist is
subpoenaed to testify in a civil or criminal proceeding. (Sen.
Judiciary Com., analysis of AB 1860 (1999-2000 Reg. Session)
Aug. 8, 2000, pp. 1-2.) Under the protection afforded by AB
1860, no testimony or evidence given by a journalist under
compulsion of a subpoena in a civil or criminal proceeding could
be construed as a waiver of the immunity provided by the media
shield law in the California Constitution (i.e. his or her right
to withhold unpublished information, which is protected). That
bill also ensured, among other things, that a journalist would
be given five days' notice of a subpoena in a civil or criminal
proceeding that his or her appearance will be required, by the
subpoenaing party, except in exigent circumstances.
This bill, sponsored by the California Newspaper Publishers
Association, would require a party that issues a subpoena in any
civil or criminal proceeding to a third party in an effort to
obtain the records of a journalist to first provide notice of
the subpoena to the journalist and the publisher or station
operations manager at least five days prior to issuing the
subpoena, except as specified.
CHANGES TO EXISTING LAW
Existing constitutional law prohibits a publisher, editor,
reporter, or other person connected with or employed by a
newspaper, magazine, or other periodical publication, or by a
press association or wire service, from being held in contempt
for refusing to disclose the source of any information procured
for the publication while so connected or employed by the
newspaper, magazine or other periodical publication, or for
refusing to disclose any unpublished information, as defined,
obtained or prepared in gathering, receiving, or processing of
information for communication to the public. (Cal. Const., art.
I, Sec. 2(b); see also Evid. Code Sec. 1070(a).)
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Existing constitutional law prohibits a radio or television news
reporter or other person connected with or employed by a radio
or television station, or any other person who has been so
connected or employed, to be held in contempt for refusing to
disclose the source of any information procured while so
connected or employed for news or news commentary purposes on
radio or television, or for refusing to disclose any unpublished
information obtained or prepared in the gathering, receiving, or
processing of information for communication to the public.
(Cal. Const., art. I, Sec. 2(b); see also Evid. Code Sec.
1070(b).)
Existing constitutional law defines "unpublished information" to
include information not disseminated to the public by the person
from whom disclosure is sought, whether or not related
information has been disseminated and includes, but is not
limited to, all notes, outtakes, photographs, tapes or other
data of whatever sort not itself disseminated to the public
through a medium of communication, whether or not published
information based upon or related to such material has been
disseminated. (Cal. Const., art. I, Sec. 2(b); see also Evid.
Code Sec. 1070(c).)
Existing law provides that no testimony or other evidence given
by a journalist, as defined, under subpoena in a civil or
criminal proceeding may be construed as a waiver of the immunity
rights granted by the constitutional reporters' shield law, as
described above. (Code Civ. Proc. Sec. 1986.1 (a), (d).)
Existing law provides that if a trial court holds a journalist
in contempt of court in a criminal proceeding, notwithstanding
the constitutional reporters' shield law above, the court shall
set forth findings, either in writing or on the record, stating
at a minimum, why the information will be of material assistance
to the party seeking the evidence, and why alternate sources of
information are not sufficient to satisfy the defendant's right
to a fair trial under the Sixth Amendment of the U.S.
Constitution and Section 15 of Article I of the California
Constitution. (Code Civ. Proc. 1986.1 (c).)
Existing law requires, because important constitutional rights
of a third-party witness are adjudicated when rights under the
constitutional reporters' shield law above are asserted, except
in exigent circumstances, that a journalist who is subpoenaed in
a civil or criminal proceeding be given at least five days'
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notice by the party issuing the subpoena that his or her
appearance will be required. (Code Civ. Proc. Sec. 1986.1 (b).)
This bill would replace the exigent circumstances exception
above with an exception for those circumstances that pose a
clear and substantial threat to the integrity of the criminal
investigation or present an imminent risk of death or serious
bodily harm.
This bill would additionally require a party issuing a subpoena
in any civil or criminal proceeding to a third party that seeks
the records of a journalist, except in circumstances that pose a
clear and substantial threat to the integrity of the criminal
investigation or present an imminent risk of death or serious
bodily harm, to provide notice of the subpoena to the journalist
and the publisher of the newspaper, magazine, or other
publication or station operations manager of the broadcast
station that employs or contracts with the journalist, as
applicable, at least five days' notice prior to issuing the
subpoena. The notice must include, at minimum, an explanation
of why the requested records will be of material assistance to
the party seeking them and why alternate sources of information
are not sufficient to avoid the need for the subpoena.
COMMENT
1. Stated need for the bill
According to the author:
SB 558 would prevent the disclosure by third parties of a
journalist's confidential sources and unpublished information
in that party's possession. This would provide greater
protections against the unknown disclosure by a third party of
information relating to the legitimate newsgathering
operations by the journalist without advance notice to the
journalist and his or her newsgathering organization.
This bill is necessary in light of the recent discovery of
[f]ederal officials secretly obtaining the phone records of
Associated Press reporters. Specifically, unless there's a
change in state law, so-called 'third parties' - or businesses
that provide certain services to newsgathering organizations
such as communications firms, internet-service providers,
hotels, rental-car companies, etc. - could be the target of a
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subpoena and there would be no way the journalist or his or
her newsgathering organization would be aware of the subpoena
so it could be challenged. In other words, at present there
is no state requirement that the newsgathering operation that
is the subject of the information sought under the subpoena
must be notified that information obtained during
newsgathering has been subpoenaed. SB 558 would resolve this
problem by requiring that the journalist and his or her
newsgathering operation be given five days' notice that the
information has been subpoenaed.
2. Inadvertent disclosures of newspersons' unpublished
information by third parties
For decades, California's reporters' shield law has protected
journalists from being held in contempt of court for refusing to
disclose unpublished information obtained or prepared in
gathering, receiving, or processing information for
communication to the public, as well as for refusing to disclose
the source of information, whether published or unpublished,
which is gathered for news purposes. The primary purpose of
this law is to safeguard the media's future ability to gather
news. (Rancho Publications v. Superior Court (1999) 68
Cal.App.4th 1538, 1543.)
As noted in the Background, this law was further strengthened by
AB 1860 (Migden, Ch. 377, Stats. 2000) which ensured, among
other things, that: (1) a journalist who is subpoenaed in a
civil or criminal proceeding be given at least 5 days' notice
that his/her appearance is required, except in exigent
circumstances; and (2) if a trial court holds a journalist in
contempt of court in a criminal proceeding notwithstanding the
constitutional protections of the reporters' shield law, the
court must set forth findings stating, at a minimum, why the
information will be of material assistance to the party seeking
the evidence, and why alternate sources of the information are
not sufficient to satisfy the defendant's constitutional right
to a fair trial. (Code Civ. Proc. Sec. 1986.1(b)-(c).)
Drawing upon those provisions, this bill would also require a
journalist (and publisher of the newspaper, magazine, or other
publication or station operations manager of the broadcast
station that employs or contracts with the journalist) be given
five days' notice, as specified, by any party that issues a
subpoena in any civil or criminal proceeding to a third party in
effort to obtain the records of the journalist. Similar to the
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required explanation from a court that holds a journalist in
contempt notwithstanding the protections of the reporters'
shield law, that notice would have to include, at minimum, an
explanation of why the requested records will be of material
assistance to the party seeking them and why alternate sources
of information are not sufficient to avoid the need for the
subpoena.
As referenced by the author (see Comment 1 above), earlier this
year the federal government faced criticism for secret
investigations of news organizations and their reporters,
including the Associated Press (AP). In the case of the AP, the
Justice Department, in response to a story relating to matters
of national security, apparently obtained two months of personal
and work telephone records for several AP reporters and editors,
as well records for the AP's general office numbers and its main
number in the House of Representatives press gallery. The
discovery of the government's monitoring of these records
reportedly "made sources less willing to talk to AP journalists
and, in the long term, could limit Americans' information from
all news outlets." (Philip Elliot, Huffington Post, Associated
Press CEO Gary Pruitt: DOJ's Seizure of Phone Records was
"Unconstitutional," (May 19, 2013).) Because current state law
only requires five days' notice of a subpoena when it is the
journalist who is subpoenaed to appear in a civil or criminal
proceeding, these recent examples arguably underscore the
possibility of similar covert investigations without the
knowledge of journalists or their news organizations if and when
third parties are subpoenaed by a party seeking the records of a
journalist, despite the protections found under California's
reporters' shield law.
By providing journalists and their news organizations with
advance notice of any subpoenas that seek such records from
third parties, the California Newspaper Publishers Association,
the sponsor of this bill, argues that this bill would "give
journalists and their newspaper or media employers a chance to
become aware of the threat to their unpublished information and
confidential sources and the time to engage the judicial process
to protect their shield law rights."
3. Limited exception to the notice requirement
As noted in Comment 2 above, this bill would only permit the
subpoenaing party to withhold the advance notice to the
journalist of the subpoena of the third party in "circumstances
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that pose a clear and substantial threat to the integrity of the
criminal investigation or present an imminent risk of death or
serious bodily harm." Additionally, the bill would replace the
"exigent circumstances" exception to existing law's five days'
notice requirement for any subpoena requiring the appearance of
a journalist in any civil or criminal proceeding, with an
exception for those "circumstances that pose a clear and
substantial threat to the integrity of the criminal
investigation or present an imminent risk of death or serious
bodily harm." In doing so, the statute would reflect Department
of Justice (hereinafter "the Department" or "DOJ") media
guidelines governing the use of law enforcement tools (including
subpoenas, court orders, and search warrants) to obtain
information or records from or concerning members of the news
media in criminal and civil investigations, which were recently
amended to "further ensure the Department strikes the
appropriate balance between two vital interests: protecting the
American people by pursuing those who violate their oaths
through unlawful disclosures of information and safeguarding the
essential role of a free press in fostering government
accountability and an open society." (See Department of
Justice, Report on Review of News Media Policies (Jul. 12,
2013), p. 1.)
As noted in these July 2013 DOJ guidelines, prior regulations
included a presumption against notifying a media outlet that its
records have been sought prior to issuance of a subpoena - as
such, advance notice was provided only in cases where the
responsible Assistant Attorney General determined that advance
notice and negotiations "would not pose a substantial threat to
the integrity of the investigation.'" (Id. at 2, emphasis in
original.) The DOJ reversed and expanded that presumption to
"ensure notice in all but the most exceptional cases," whenever
DOJ attorneys seek to access records relating to newsgathering
activities of members of the media. (Id.) Specifically:
Under the new policy, the presumption of advance notice will
be overcome only if the Attorney General affirmatively
determines [ . . . ] that for compelling reasons, advance
notice and negotiations would pose a clear and substantial
threat to the integrity of the investigation, risk grave harm
to national security or present an imminent risk of death or
serious bodily harm. The possibility that notice and
negotiations with the media, and potential judicial review,
may delay the investigation will not, on its own, be
considered a compelling reason under this updated policy.
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Advance notice will afford members of the news media
opportunity to engage the Department regarding the proposed
use of investigative tools to obtain communications or
business records, and also to provide the news media with the
opportunity to challenge the government's use of such tools in
federal court. By strengthening the presumption in favor of
notice, and providing that notice be deferred only where the
Attorney General, after review by a committee of senior
Department officials, finds that notice would be present a
clear and substantial threat to the investigation, grave harm
to national security, or imminent risk of death or serious
bodily harm, the Department's new policy reflects the gravity
of the decision to forgo negotiations with, or delay
notification to, affected members of the news media.
It is expected that only the rare case would present the
Attorney General with the requisite compelling reasons to
justify a delayed notification. (Id., emphasis in original.)
Support : None Known
Opposition : None Known
HISTORY
Source : California Newspaper Publishers Association
Related Pending Legislation : None Known
Prior Legislation :
AB 1860 (Migden, Ch. 377, Stats. 2000) See Background and
Comment 2.
Prior Vote :
Assembly Floor (Ayes 78, Noes 0)
Assembly Appropriations Committee (Ayes 17, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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