An essay on the Journalist Privilege

Posted October 10, 2013

Editor's note: This essay, solicited by and then submitted to the Kansas Prosecutor magazine, was rejected by the Editorial Committee. Here's what the editor wrote: "In their opinion, it would be more helpful to our readership to see a comparison of the times the media has won or lost, without any commentary. Case citations would be great as well to support the facts."

Mike Merriam's response: This is an essay, not a law review article.

By Michael Merriam, Lawyer

We have been allowed to address you on the subject of the journalist privilege of K.S.A. 60-480 et seq. You all have easy access to this statute and we won't use this space to detail the fine points of it. Instead, we think it is useful to discuss how the statute is working since its enactment in 2010.

After several years of deliberation and negotiation, the legislature finally enacted this law. Previously, we defended subpoenas to the media based on the Powell concurrence in Branzburg v. Hayes, and many subsequent cases exploring the issues, including, in our jurisdiction, the 10th Circuit cases of Granbouche v. Clancy and Silkwood v. Kerr-McGee. The Kansas privilege statute differs very little from the elements of those cases. We continue to argue this "constitutional privilege," along with the Kansas statutory privilege to address all issues in a given case.

Since 2010, we are aware of perhaps a dozen cases in Kansas in which a party, including the State, has issued subpoenas to the media. Others have not been resisted by the media. Of those that have been, the media has prevailed in all but one. Our experience has shown that counsel are frequently unaware of the existence of the privilege, and we have even encountered courts who are unaware of it.

That experience has also shown that the most common outcome, when an objection is filed to the subpoena, especially in civil cases, is that the matter is dropped (dismissed) by the party seeking information from the media. In a few criminal cases, defense counsel seeking information have also dropped the issue when facing assertion of the privilege and the protocol for resolution set out in K.S.A. 60-483 (incidentally, we are unaware of any case assessing costs or fees under K.S.A. 60-484). Because of this experience, we find that many counsel are unprepared for the evidentiary showings required under K.S.A. 60-482.

The elements for a party seeking information from the media are threefold: (paraphrasing) 1) that it is material and relevant to the proceeding; 2) that it could not be readily obtained from another source; 3) that it is of compelling interest. By far the most contentious issue under the statute is 60-482(a)(2), what we call "unavailability." Seldom are subpoenas issued by responsible counsel which seek immaterial or irrelevant information, although compelling interest is sometimes at issue — compare a recent Wichita criminal case in which unaired video was sought under circumstances in which the suspect was killed. The burden of showing unavailability is squarely upon the party seeking information from the media. So, objectively speaking, how would one show that there is no other readily available source for the information sought? It's a pretty tough burden.

There are exceptions, of course. A recent Shawnee County criminal case subpoena was ably presented by the prosecution, which prevailed in a showing that an on-line comment to a media story about a trial may have been posted by a sitting juror. While we showed that the identity of the poster was known to the defense (no 5th Amendment, attorney-client or work product issues), the court nevertheless enforced the subpoena.The media is not an adversary in the civil or criminal court system, but neither is it a detective service for party litigants. We do not choose to resist each and every subpoena, and many media organizations will comply with information requests in certain circumstances, such as where there are emergencies, or when a particularly vulnerable victim may be at risk, such as a child, a female, or an elderly person.

We repeat that we do not see ourselves as adversaries to the prosecutor's interests in criminal cases. A need for cooperation exists. We are good citizens; we often assist law enforcement in published and broadcast stories for investigating crimes, soliciting tips, finding suspects, etc., almost always at the request of a law enforcement agency. If we can assist without betraying journalistic principles, we almost always will. So use subpoenas sparingly: if your need for information meets our policies, you will get it with a phone call. If not, prepare yourselves for the privilege requirement showing under this statute. We don't prevail in every case, but it is a pleasure for media counsel to have able and prepared opposing counsel.

Michael W. Merriam, lawyer, represents the Kansas Press Association and the Kansas Association of Broadcasters in legal matters and provides each a Legal Hotline.