Sources, Subpoena, and Confidentiality
by Dino Corvino on September 21st, 2011
Something flew under the media radar recently. Not surprising, because it is a story about the media here in Central Wisconsin. It is both disappointing on a personal level, and shocking on an ethical level. A local radio station, and two TV stations in the area agreed to comply with a subpoena from a government agency and turned over unaired recorded material.
John Hendrickson, Regional Attorney for the EEOC Chicago District, informed me that WAOW TV, WSAU AM Radio, and WSAW TV, we all served subpoena, and all gave the government the material sought. “They all requested the subpoenas,” said Hendrickson. He also went on to say that media outlets prefer the subpoena method, because it gives them a form of protection in an inquiry.
[Above we have crossed out a claim made by a source in the reporting of this. It appears that this claim is contested by a source at Channel 9 who sent me an email stating the station never handed over the materials requested. This of course is in conflict with what the attorney from the EEOC has said to me.]
As some of you know privilege is a concept that journalists take very seriously. If you as a source tell a member of the media something in confidence(or as I have learned recently nonconfidentially), it is fair to say that one of the highest priorities that media person, and outlet have is the protection of your identity. The breaking of privilege is something journalists and news outlets take very seriously. Going so far as to have an established three-prong test created through litigation to decide when the courts can force a member of the media to break confidentiality.
From the State Bar of Wisconsin, “Journalists in Wisconsin enjoy a strong qualified privilege against testifying in both civil and criminal proceedings. This court-recognized privilege, based on the state and federal constitutions, applies to information gathered from both confidential and nonconfidential sources.”
So, how does this related to Wausau? Well, the material in question was the unused recording from a press conference held in the Sexual Discrimination Case in Merrill. This press conference was held by the defendants in the EEOC v. Pine Ridge Restaurant. The attorney for the Defendant stood in front of microphones and spoke, and answered questions. These answers were then put together in news stories, and appeared in local media.
For some reason, the EEOC sought to get the unaired and complete recordings from the media. Essentially asking the media outlets to assist the government in doing the government’s job.
Some might say, and have said, that this is a press conference, so it is a public event, so there is no expection of confidentiality. This is true, it was a public event. So, why was the EEOC not at the event? Why is a government agency using a court action to get the media to assist in its case against this restaurant?
Now, the claim in this case alleges some pretty unsavory behavior by a staff member in the restaurant, and the ownership of the restaurant, but I am not writing about that. That I think we can all agree is not acceptable in any context.
But, what I am writing about is the troubling action taken by the WAOW, WSAW, and 550 AM here in Wausau in handing over their materials to the government.
It is my position that by handing over these materials to the government these media outlets have taken an active, and decidedly plantiff based role in this lawsuit. They have now collected information, and that information has been handed over to a government agency for use in a lawsuit against a citizen or business. I believe this action violates privledge, and further more defeats the credibility of these news outlets.
These media outlets have taken sides. They have acted in concert with the plantiff in a court action in providing material to the process of a lawsuit. Who is to say they will not do it again? That they will not provide other materials, other sources, fail to protect more people.
This action establishes a precedent that these two media agencies will comply with government subpoena (the other television station said they taped over their material, this is a common and taught act done to prevent these issues). They will give material to the government or anyone if pressed. They will take sides.
I have used the phrase ‘take sides’ a few times in this post. I spent Friday on the phone with my ethic professor from college, a half dozen media lawyers, and the Society for Professional Journalists. I wanted to learn about subpoena power, and what could be done. Almost to a person the suggestion was that the radio and television stations put the entirety of the unaired material on their website, and refuse the subpoena. This would satisfy the government, since it would have the material or rather access to it. It would also prevent the concept of taking sides, since the defense would have it as well. Because now, one side has the tape, and the other does not.
Why would anyone talk to these reporters in confidence, or any other way when the actions taken by these stations has already proven they will not protect sources? What assurances could they possibly give to make one believe that they are going to be serious about privledge?
More over, why is the media agency acting complicit in the collection of information of information for the government, in an active lawsuit against a citizen?
The State Bar of Wisconsin says this on their website, “The journalist’s privilege in Wisconsin protects the identity of the source, as well as unpublished information gathered by a reporter. The privilege applies only to information gathered in the course of one’s work as a journalist, but both confidential and nonconfidential information is protected. That is, regardless of whether the journalist obtained the information under a promise of confidentiality, the journalist’s privilege against testifying is the same.”
Clearly, the news agencies could have invoked this, and had the subpoena quashed, but instead acted complicit with the government, and violated their own rights of privledge.
As of this writing, Wednesday morning, neither 550 AM nor the television stations have responded to voicemail messages, nor email messages.
A staff member from 550 AM posted this on his facebook page.