By Roberto E. Alejandro, Editor-in-Chief
Baltimore City state’s attorneys routinely subpoena journalists and media organizations in the course of their criminal inquiries, an apparent investigative shortcut that could, in many instances, violate Maryland law, which shields journalists from such interference.
Nathan Siegel, a media lawyer who has represented the Baltimore Sun for over 10 years (though not consecutively), says the Baltimore City State’s Attorney’s Office’s (SAO) practice of subpoenaing news outlets has increased since last April’s unrest, but that the SAO has generally withdrawn or limited the scope of subpoenas when confronted with the statutory protections afforded by Maryland’s shield law for journalists.
“I do think that there is a tendency to want to issue subpoenas to the news media because it’s just easier, it’s kind of an easy first target,” said Siegel. “Everybody knows who the television stations in Baltimore are who are covering these events. Everybody knows who the principal newspaper in Baltimore is and who the other media in Baltimore are. It’s easy to issue those subpoenas. It takes more work to figure out which businesses had security cameras, were there public security cameras on the street corners . . . so I think there’s a tendency to issue subpoenas to the news media kind of as a method of first resort.”
While subpoenaing journalists may be an easy first step in an investigation, Maryland has protected journalists from compelled disclosure of sources and unpublished information since 1896. The General Assembly passed a shield law that year in response to a journalist’s imprisonment for refusing to disclose a source, after being convinced to do so by a Baltimore journalists’ club, according to a report by the Reporter’s Committee for Freedom of the Press.
Codified in section 9-112 under the Courts and Judicial Proceedings Article of the Code of Maryland, the shield law protects unpublished materials gathered or created by journalists from disclosure unless the party seeking the information can establish by “clear and convincing evidence” that the relevant information “could not, with due diligence, be obtained by any alternate means.”
And while the statute’s language suggests journalists can only be compelled to provide unpublished information as a last resort, and even then only where there is “an overriding public interest in disclosure,” interviews with attorneys such as Siegel, and members of media organizations that have been subpoenaed by the Baltimore City State’s Attorney’s Office suggest that, often times, Charm City’s prosecutors resort to subpoenaing news organizations as something of an alternative to the shield law’s prescribed ‘due diligence.’
After the demonstrations and unrest that took place in Baltimore following the in-custody death of Freddie Gray on April 19, 2015, the Real News Network (RNN) was served with a subpoena by the Baltimore City State’s Attorney’s Office, requesting published materials related to RNN’s reporting on the matter. RNN CEO Paul Jay reached out to the ACLU of Maryland, whose attorneys were able to convince the State’s Attorney’s Office that the subpoena was inappropriate and that it should be withdrawn.
According to Debbie Jeon, legal director for the ACLU of Maryland, the experience of negotiating with the Baltimore City State’s Attorney’s Office over the RNN subpoena left the impression that “there wasn’t sufficient thought given by the State’s Attorney’s Office . . . that nobody is looking at the big picture, that nobody is really thinking these things through and different [assistant state’s attorneys] are doing what they want to do and maybe aren’t aware that Maryland has this very strong shield law that protects reporters from having to disclose [information gathered].”
But beyond representing a potential violation of Maryland’s shield law, the practice of subpoenaing news outlets, particularly where smaller operations, who do not have the benefit of in-house legal representation, are concerned, this practice can represent a serious burden, since a subpoena must be complied with unless you can negotiate to have it withdrawn, or move to have it quashed, something that is most likely to succeed if a lawyer is involved.
For RNN CEO Paul Jay, the subpoena received by his network, which is a non-profit, could have presented a substantial cost to the outlet had it not been for the ACLU of Maryland’s pro bono support.
“Luckily, a lot of lawyers are very opposed to this kind of [practice], so there are times you can get pro bono support for this. But you never know, sometimes these lawsuits, if it gets serious enough and at a high enough court and you get into appeals, it’s very very time consuming, and so sometimes you do have to pay lawyers. So yeah, in theory, [this practice] could be onerous [to news outlets], but for us it’s a fundamental question of principal: we won’t [comply],” said Jay, whose insistence on non-compliance with these subpoenas is grounded in his view that they represent an “undemocratic pressure put on journalism.”
“What society loses from the independence of journalism is far more important and significant than anything it might gain in assisting in some kind of prosecution of some individuals,” said Jay.
The ACLU of Maryland’s Jeon would agree.
“Especially in this era when there is so much concern about police and government accountability, it’s imperative that journalists remain independent, and that sources be able to trust that reporters won’t be hauled into court to reveal information that they believe they’re giving in confidence,” said Jeon.
That the press and police ought to remain separate is the public policy concern that animates Maryland’s shield law, says Siegel, and the practice of subpoenaing media outlets violates that spirit.
“That’s why we call the press the fourth estate, we want it to be distinct from the government, and we don’t want the press to essentially become . . . investigators for police and prosecutors. And what these subpoenas do is essentially use the press as a means of gathering information for purposes of potential prosecution. And that does, I think, violate the spirit of the shield law,” said Siegel, adding later that, “There could be a time when these subpoenas, if they become so pervasive, so frequent, that there would be a basis for the press to go into court and just say ‘Hey, this needs to stop. This is too burdensome and it is not consistent with the spirit of what the shield law is supposed to be, which is to keep the functions of the press and the functions of the police separate.'”
The Baltimore City State’s Attorney’s Office did not return an email seeking comment.
Disclosure: The AFRO-American Newspapers were subpoenaed by the Baltimore City State’s Attorney’s Office in December, 2015, due to reporting by the author of this article, Roberto Alejandro, into the sex-for-repairs scandal at the Housing Authority of Baltimore City. The reporter, as well as Onbckgrnd.com were also subpoenaed over the same, according to The Guardian’s and City Paper’s Baynard Woods. That subpoena has yet to be served.
This story was originally published by OnBckgrnd.com, on Jan. 7, 2016.