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Get legal help and don’t try to handle it yourself
Walker’s first advice is simple: If journalists have access to a lawyer, they should use one immediately.
“The first thing they should do — if they have access to an attorney — is get it to an attorney and not try to handle it themselves,” Walker said.
Rather than simply complying with a subpoena, journalists or their attorneys should respond to the party that issued the subpoena and assert whatever reporter’s privilege may apply, which can depend on state law, federal law and the type of proceeding.
“They should almost always write back or call the party who issued the subpoena and tell them that while they will preserve the information, it is privileged either under a state statute or the U.S. Constitution or both,” Walker said.
“Often, in my experience, that is enough to make the other party go away,” she said.
Depending on the jurisdiction, Walker said a journalist may need to file a motion to quash (a request asking the court to cancel or invalidate the subpoena). Simply ignoring the subpoena, meanwhile, can escalate the situation. If the journalist ignores a subpoena, the other party may file a motion to compel and seek monetary sanctions.
Preserve everything once the subpoena arrives
Whatever a journalist’s normal practice for keeping notes, drafts or raw footage, Walker said all possibly relevant material should be preserved as soon as a subpoena has been received.
“You should preserve everything. You don’t want to be accused of spoliation of evidence once you’ve received a subpoena.”
However, if requested material had already been deleted or disposed of as part of normal practices, the journalist may have nothing responsive to provide.
“If you don’t have them, that’s actually the easiest. The easiest response is to just say, ‘we got the subpoena and we have these objections, but objections notwithstanding, we don’t have anything responsive,’” Walker said.
There is no single answer about whether journalists should keep notes, drafts and raw footage or routinely discard them before receiving a subpoena. But keeping reporting materials can sometimes be useful.
For example, in a defamation case, notes and other background materials may help document the reporting process, including efforts to verify information and seek comment, if a journalist is later brought to court.
“That can be good evidence supporting responsible journalism,” Walker said.
Know what protections may apply
Receiving a subpoena does not necessarily mean a journalist must immediately provide everything requested. The protections available can depend on where the case is being heard and what type of proceeding is involved.
“There’s a difference between state and federal law,” Walker said. “And it often will depend also on whether we’re talking about a criminal proceeding or a civil proceeding.”
Walker said federal proceedings usually offer fewer protections to journalists, with grand jury subpoenas posing a particular challenge. In Branzburg v. Hayes, the Supreme Court held that the First Amendment does not give reporters a general privilege to refuse to answer relevant questions before a grand jury.
“Grand jury proceedings tend to be the hardest,” Walker said.
Journalists should also be careful about responding to requests that arrive before any subpoena does.
“If a police officer or an FBI agent just calls you and informally asks for it, you should say no. At the very least, we’ll need a subpoena.”
Her warning: “Don’t accidentally waive the privilege by trying to be helpful.”
With confidential sources, promise process, not results
A subpoena becomes particularly sensitive when it seeks the identity of a confidential source.
“I think courts are going to recognize that disclosure of confidential sources is more sensitive and a higher burden,” Walker said. “But they don’t always protect it.”
That possibility should be considered before a journalist makes promises to a source. Walker said journalists can be clear about what they control: not publishing a source’s name, concealing their face, or explaining how they will be identified in a story.
Walker’s advice: “Promise process, don’t promise results.”
A promise to never identify a source, even if a judge eventually orders disclosure, can invite significant risk to the journalist. Refusing to comply with a court order to reveal a source’s identity can expose a journalist to contempt sanctions, including fines and, in some cases, jail.
“That is a big thing to promise a source,” Walker said. “Because you might not be able to keep that promise without exposing yourself or your news organization to serious fines or other penalties.”
“I would recommend a journalist not make that promise until they talk to a lawyer and really consider all the ramifications,” she said.
Challenging a subpoena is not the same as defying a judge
A journalist can challenge a subpoena and argue that a reporter’s privilege or other applicable legal protection allows them to withhold the requested information.
“The journalist could still stand their ground and say, I’m not producing it,” Walker said.
To best protect sources and information, journalists should turn to legal assistance as offered by journalist support organizations like the Reporters Committee for Freedom of the Press to help them advocate for their rights.
But if the dispute reaches court and a judge ultimately orders disclosure, continuing to refuse can have consequences.
These consequences are not theoretical. Journalist Catherine Herridge was held in civil contempt for refusing to identify a confidential source and ordered to pay $800 a day until she complied.
In another prominent case, New York Times reporter Judith Miller spent more than 80 days in federal detention for contempt after refusing to testify before a grand jury about a confidential source.
Walker offered one final piece of advice: journalists should not surrender the protections available to them, simply because they do not yet know how to assert them.
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