BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Adam B. Schiff, Chairman
1999-2000 Regular Session
AB 1860 A
Assembly Member Migden B
As Amended August 7, 2000
Hearing Date: August 8, 2000 1
Code of Civil Procedure 8
DLM 6
0
SUBJECT
Media Shield Law
DESCRIPTION
This bill would provide that:
No testimony or other evidence given by a journalist
under subpoena in a civil or criminal proceeding may be
construed as a waiver of the immunity rights provided by
the media shield law in the California Constitution.
Except in exigent circumstances, a journalist who is
subpoenaed in any civil or criminal proceeding shall be
given at least five days' notice by the party issuing the
subpoena that his or her appearance will be required.
Where the judge in a criminal trial holds a journalist
asserting protection under the media shield law in
contempt of court, the court must set forth findings 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 the information
are not sufficient to satisfy the defendant's
constitutionally guaranteed right to a fair trial.
BACKGROUND
According to a recent L.A. Times story, "[d]espite having
one of the nation's strongest shield laws, California is in
the midst of a spate of media cases in which judges are
(more)
AB 1860 (Migden)
Page 2
trying to force journalists to disclose unpublished
information, or confidential sources." (Maura Dolan,
"Reporters Facing Greater Pressure to Reveal Sources," L.A.
Times, March 10, 2000.) The article quoted several media
and legal experts regarding the burgeoning nature of the
problem. "Subpoenas for unpublished material are 'going
through the roof' in California, said University of
Minnesota professor Jane Kirtley, who teaches media, law
and ethics." (Id.) "'I have never known of a time when so
many journalists seemed to be teetering on the brink of
being incarcerated, said Sacramento 1st Amendment lawyer
Charity Kenyon." The article continued by noting some of
the many problems created by efforts to compel a
journalist's testimony: "The subpoenas can mean crushing
legal costs for small newspapers. A reporter also may have
to be pulled off a story if required to testify as a
witness about it. Journalists argue that future sources
may be more reluctant to disclose sensitive information for
fear they may be identified or the reporter's notes might
be used against them in a trial." (Id.)
Other news reports confirm a recent trend in cases where
journalists have been faced with contempt citations for
failure to reveal confidential news sources or unpublished
information. As the Sacramento Bee reported "[i]t's been a
tough time for California journalists, as Sacramento Valley
Mirror publisher Tim Crews - also the editor, reporter and
delivery guy for the twice-weekly newspaper - spent five
days in jail for refusing to reveal his confidential
sources. Meanwhile, a 20-year-old student journalist at
Sacramento State [David Sommers] is facing a possible jail
term for refusing to turn over unpublished notes and
photographs concerning a fight last fall at a football
game." (Marjie Lundstrom, "As Journalists Go to Jail, Free
Press Goes Out the Window," Sacramento Bee, March 4, 2000.)
The San Francisco Chronicle reported that a Marin County
judge imposed a $1,000 a day fine on Dan Fost, a newspaper
reporter who refused to answer a prosecutor's questions
about unpublished portions of an interview he conducted
with a key witness in a murder case. The First District
Court of Appeal recently overturned the contempt case
against Fost. (Peter Fimrite, "Court of Appeal Dismisses
Contempt Charge Against Chronicle Reporter," San Francisco
AB 1860 (Migden)
Page 3
Chronicle, May 9, 2000.)
CHANGES TO EXISTING LAW
Existing law , the California Constitution, provides that a
journalist may not be held in contempt for refusing to
disclose either unpublished information or the source of
information, whether published or unpublished, which is
gathered for news purposes.
Existing case law provides, under case law, that the
protection of the shield law is not absolute, and may be
overcome in a criminal proceeding on a showing that
nondisclosure would deprive the defendant of his or her
federal constitutional right to a fair trial. Miller v.
Superior Court (1999) 21 Cal.4th 883; Delaney v. Superior
Court (1990) 50 Cal.3d 785, 805-806.
This bill would provide:
No testimony or other evidence given by a journalist
under subpoena in a civil or criminal proceeding may be
construed as a waiver of the immunity rights provided by
the media shield law in the California Constitution.
Except in exigent circumstances, a journalist who is
subpoenaed in any civil or criminal proceeding shall be
given at least five days' notice by the party issuing the
subpoena that his or her appearance will be required.
Where a court holds a journalist in contempt of court in
a criminal proceeding notwithstanding the media shield
law, the court must 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 the
information are not sufficient to satisfy the defendant's
constitutionally guaranteed right to a fair trial.
This bill would define "journalist" for the purposes of
this legislation, to mean the persons specified in the
media shield law contained in the California Constitution.
AB 1860 (Migden)
Page 4
This includes a publisher, editor, reporter, or other
person connected with or employed by a newspaper, magazine,
periodical, press association, wire service, or a radio or
television station.
COMMENT
1. Stated need for legislation and support
This bill is sponsored by the California Newspaper
Publishers Association, who state that the bill is
needed, "to provide courts with procedures and guidance
for handling cases involving the media shield law, so
that journalists are not wrongly held in contempt for
exercising their shield law rights. AB 1860 comes in
response to several recent cases in which journalists
have lost their shield law rights in trial courts. In
one case, a journalist was jailed for five days. The
case was later dropped. In another case, a journalist
was facing a fine of $1,000 per day. He eventually won
the case on appeal. In yet a third case, a college
newspaper journalist was subpoenaed into court only to
find that the district attorney had failed to investigate
the case properly and there were actually several
witnesses, making the journalist's testimony
unnecessary."
According to the author, "The main purposes of the shield
laws are to prevent government from making journalists
its investigative agents and to prevent a journalist who
is trying to cover the story from becoming part of the
story (which makes them wholly unable to cover it).
Increasingly, when a criminal case is newsworthy, the
first thing (not the last thing) defense attorneys do is
subpoena any journalist who has covered the story. This
has several negative impacts: (1) it makes journalists
the unpaid investigators of the party's counsel; (2) it
harms journalists' ability to gather information in the
future (e.g., sources willing to be interviewed by a
journalist on the condition of confidentiality will be
unwilling to do so if they understand that government can
routinely violate that confidentiality agreement); and
(3) it takes resources away from newsgathering. A
reporter who becomes a witness is unable to cover the
story. Additionally, successfully asserting one's
AB 1860 (Migden)
Page 5
constitutional Shield Law rights is expensive and
time-consuming. Tim Crews' successful battle cost him
five days in jail and legal fees of $70,000."
Finally, the California First Amendment Coalition also
strongly supports
the bill, adding that "journalists can be ill prepared
for an effective assertion of their rights to protect
confidential sources or unpublished information if they
are subpoenaed to appear with no particular notice?."
Additionally they assert, "nothing in this bill would
diminish the evidentiary rights of criminal defendants as
enabled in Delaney v. Superior Court, (1990) 50 Cal. 3d
785, or of prosecutors upon cross-examination, under the
recent holding in Fost v. Superior Court, (1st. Dist. No.
A089753, 5/8/2000)."
2. Media shield law, further background
The media shield law was first enacted by statute in
1935. It was incorporated into the Constitution in 1980
when the voters approved Proposition 5. It is intended
to promote the free flow of information to the public by
prohibiting courts from holding the media in contempt for
refusing to disclose unpublished news sources or
information received from such sources. Its primary
purpose is to safeguard the media's future ability to
gather news. Rancho Publications v. Superior Court (1999)
68 Cal.App.4th 1538.
The media shield law protects a journalist from being
held in contempt of
court for refusing to disclose either unpublished
information or the source of information, whether
published or unpublished, which is gathered for news
purposes. (Cal. Const., article I, section 2(b); Evidence
Code section 1070.) The courts have held that the
Legislature, in enacting the media shield law, recognized
the importance of maintaining a free flow of information
and intended that the statute be given a broad, rather
than a narrow, construction. See e.g., Rosato v.
Superior Court (1975) 51 Cal.App.3d 190. However, the
courts have also made it clear that the shield law
provides only immunity against contempt, rather than a
more expansive privilege against testifying. Delaney v.
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Superior Court, (1990) 50 Cal.3d 785.
In addition, the California Supreme Court held, in the
Delaney decision, that the shield law yields to other
conflicting rights in appropriate circumstances,
including the due process rights of criminal defendants.
Delaney v. Superior Court, supra. The Delaney court
formulated a two-stage inquiry to determine whether a
court's contempt power could be invoked to enforce a
criminal defendant's subpoena against a newsperson.
First, the defendant must show "a reasonable possibility
[that] the information will materially assist in his
defense." Id. If this showing is met, the court must
balance the criminal defendant's and the newsperson's
rights. The court must consider whether the unpublished
information in question is confidential or sensitive, the
degree to which the information is important to the
criminal defendant, whether there is an alternative
source of unpublished information, and whether there are
other circumstances which may render moot the need to
avoid disclosure. Id. Finally, each case must be
analyzed by the court on an individual basis to determine
if the defendant's Sixth Amendment right to a fair trial
will prevail. Id.
Recently in Miller v. Superior Court (1999), 21 Cal. 4th
883, the Supreme Court held that the "absolute nature of
the immunity embodied in the shield law yields only to a
conflicting federal constitutional right," i.e., a
defendant's right to a fair trial.
3.Answering subpoena will not constitute waiver of immunity
This bill would provide that no testimony or other
evidence given by a journalist under compulsion of
subpoena in a civil or criminal proceeding may be
construed as a waiver of the immunity rights provided by
the media shield law in the California Constitution.
Supporters claim this provision is necessary because a
journalist's good faith effort as a witness to
authenticate published information, which is not
protected by the shield law, may be too easily taken to
be a waiver of his or her right to withhold unpublished
information, which is protected.
AB 1860 (Migden)
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This provision seems consistent with a recent appellate
court decision, SCI-Sacramento v. Superior Court (3d
Dist. 1997) 54 Cal. App.4th 654, wherein the court found
that submission of out-takes to the court for in-camera
review did not constitute a waiver, where the news
station preserved its right to object to the judge's
ruling regarding admissibility. "Waiver requires a
voluntary act, knowingly done, with sufficient awareness
of the relevant circumstances and likely consequences ?
There must be an actual intention to relinquish it or
conduct so inconsistent with the intent to enforce that
right in question as to induce a reasonable belief that
it has been relinquished. (Citations omitted.)"
SCI-Sacramento, supra.
Here, in the context of compelled testimony or production
of evidence, such evidence is not given voluntarily.
Therefore, it could be argued the under the
SCI-Sacramento rule, there is no "actual intention to
relinquish or conduct so inconsistent with the intent to
enforce that right in question would not work to
establish a waiver of immunity." AB 1860 would create
the same result, by expressly providing that no waiver
would be created by a newsperson's submission to civil or
criminal subpoena.
Support: Burbank Leader; California First Amendment
Coalition; Copley Press, Inc.; Costa Mesa-Newport
Beach Daily Pilot; Glendale News-Press
Huntington Beach Independent; Los Angeles Times;
McClatchy Company; Pasadena Weekly; Sacramento
Valley Mirror; San Francisco Bay Guardian; San Jose
Mercury News; Society of Professional Journalists,
Northern & Southern California Chapters; California
Newspaper Publishers Association; individuals
Opposition: None Known
HISTORY
Source: California Newspaper Publishers Association
Related Pending Legislation: None Known
AB 1860 (Migden)
Page 8
Prior Legislation: None Known
Prior Vote: Assembly Judiciary Committee (14-0); Assembly
Floor (77-0)
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