CALIFORNIA — After several months of legal battles, a SacramentoCounty Superior Court judge quashed a subpoena asking a student editorto turn over unpublished photos taken during a fight at a football game.
Judge Gerald S. Bakarich ruled in April that David Sommers, editor ofTheState Hornet, the student newspaper at California State University atSacramento, would not be held in contempt for refusing to hand over picturesof the arrest of Gustavo Chavez at a football game in September. Sommerswas facing a possible jail sentence for refusing to surrender the film.
“I did not want to turn over those materials because I was afraid ofwhat it would do to our ability to continue to gather the news,” Sommerssaid. “If the public knew that we had turned over photos and witness namesin the past, then why would they want to be interviewed by us in the future?”
Jacqueline R. Kinney and Matthew D. Roberts, Sommers’ attorneys, claimedthat California’s shield law protected their client’s right to withholdthe photographs. Shield laws are designed to legally protect journalistswho refuse to reveal sources or hand over unpublished material gatheredin reporting.
In October, Lisa Franco, Chavez’s attorney, subpoenaed copies of filmnegatives and notes reporters had taken during the football game — justone week after her client was arrested on two counts of resisting an officer.
In addition to the material gathered by journalists at the footballgame, Franco asked for photo negatives and notes taken during protestsby the university Latino community after a picture of Chavez’s arrest waspublished on the front page of The State Hornet.
In December, a superior court judge partially quashed the subpoena,only allowing Chavez’s defense to ask for the film negatives and a listof witnesses compiled by State Hornet staff reporters.
Under California’s shield law, a defense attorney must meet a high burdenof proof in order to be granted access to unpublished material gatheredby a reporter.
Attorneys must demonstrate that their clients would be deprived of theirright to a fair trial without the otherwise protected information. Thedefense must also show that it exhausted all alternate sources for informationbefore it can ask for material protected by the shield law.
Sommers’ attorneys argued that Franco did not meet this threshold becauseshe issued the subpoena a week after the newspaper published the photograph.
“A subpoena issued one week after the publication does not seem, tome, like they have exhausted very many alternative sources at all,” Kinneysaid at Sommers’ first appeal hearing in December. “It’s kind of a fishingexpedition that the U.S. Supreme Court has said is not allowed under theFirst Amendment.”
In the final appeal, Sommers’ attorneys again argued that Franco hadnot exhausted all other sources. Before the court date, Sommers’ attorneysdiscovered that Franco never contacted the only witness to the arrest whowas named in a published article by The State Hornet.
According to Sommers, Mike Jaime was listed in the phone book but wasnever contacted by the defense. Sommers said Jaime was a season ticketholder who attended with his family the game where Chavez was arrestedand sat with the same crowd of people he sat with at every football game.Jaime could have given the defense a dozen more witnesses, Sommers said.
At the final hearing for Sommers’ appeal, Judge Bakarich agreed withSommers’ attorneys, ruling that the defense had failed to look to othersources before seeking information from the press.
“The judge was very upset by [this] because the only reason why thejudge said that the materials were needed in the first place was becausethe defense had filled their burden in searching for witnesses, and obviouslythey did not,” Sommers said.
After reviewing the film negatives in his chambers, Bakarich ruled thatthe information in the unpublished photographs did not reveal any new informationthat could not be found in published photographs and stories or from alternativesources.
“This is a victory for the press, but it comes at a price,” Kinney said.”The whole process of being dragged into court is a burden the press shouldnot have to bear. Ultimately, it is the public that suffers when a journalist’stime and resources are diverted to fighting off subpoenas for unpublishedinformation.”
Sommers, who received the James Madison Freedom of Information Awardfor College Journalism by the Northern Californian Chapter of the Societyof Professional Journalists for his refusal to release the material, saidhe is glad to return to his job as editor of The State Hornet.
“I’ve been wrapped up in this for the last six months of my life,” Sommerssaid. “At 20 years old, I never imagined I would be involved in somethingthis important and big. I think it is important that we won because itdidn’t set a bad precedent in the state of California.”
“We can only hope that this decision will deter other litigants fromgoing to the press before seeking information from alternative sourcesnot protected by the shield law,” Kinney said.