Prosecutors subpoena journalist's footage of Hells Angles gathering

State shield law does not apply to student media, attorney says

MONTANA -- Linda Tracy thinks she's a journalist. Missoula prosecutors say she's just a student. Now a judge will have to decide.

Tracy, a 32-year-old senior at the University of Montana, says she was working as a journalist when she took video footage of a Hells Angels gathering in Missoula for two nights in late July.  And she thought she was a journalist when she took that footage and the footage from two classmates -- three hours altogether -- to produce a 22-minute video about the gathering, which involved altercations between protesters and police, who arrested 63 people during the affair.

Missoula prosecutors, however, see things differently. They have an investigation to run -- and they want Tracy's unpublished footage for evidence. So, in October, they issued a subpoena that Tracy promptly ignored, citing Montana's Media Confidentiality Act. The act grants absolute privilege of information and sources to "any person connected with or employed by" any news agency "for the purpose of gathering, writing, editing, or disseminating news."

With the help of her attorney, Missoula First Amendment specialist Rick Sherwood, Tracy is asking a state district court to quash the subpoena.

"I look at journalists as people who gather and disseminate the news," Tracy said, "and that was what I did."

The case is now an individual civil matter, separated from the criminal case in which the original subpoena was issued.

Sherwood argued in court documents that Tracy clearly meets the standard of being a journalist prescribed in the Montana shield law.

In addition to her enrollment in the University of Montana School of Journalism, Tracy also owns and operates Turtle Majik Productions, a documentary film company registered as a business with the Montana secretary of state. Tracy received academic credit for the film, which has aired on Missoulaís public access television channel and is available at a local video store.

Additionally, Sherwood cited a 1993 ruling by the U.S. Court of Appeals for the Ninth Circuit giving journalists in Montana a claim of privilege under the First Amendment.

The city responded with claims of its own, most notably that as a student Tracy is not a journalist and does not enjoy the protection provided by the Media Confidentiality Act or the First Amendment.

"[Tracy] has not received a degree in journalism nor has she proffered any evidence of membership in news organizations such as the Society of Professional Journalists or the Montana Broadcasters Association," deputy city attorney Gary Henricks said in his reply.

Henricks also dismissed Tracy's business as not being a legitimate news gathering organization at the time the video footage was recorded.

"Again, [Tracy] has not demonstrated that she is in fact a journalist, rather she is a student being educated in journalism that has not obtained the required credentials to be a journalist," Henricks said.

Following the city's reply, Sherwood submitted another brief to the court, refuting the assertion that students are not "journalists" under applicable statutory and case law.

"The City's position is apparently that Tracy has not alleged enough to bring her into the protection of the privileges she claims," he said in the brief. "Yet the City is attempting to engraft prerequisites that the applicable statutory and constitutional provisions do not require.

"The only requirement for the application of the constitutional journalist's privilege is that the person seeking to invoke the privilege 'is gathering news for dissemination to the public,'" he added.

Furthermore, Sherwood told the court, "[Tracy] is unquestionably connected with the School of Journalism at the University of Montana. The aforesaid School operates a newspaper and produces programs for radio and television stations."

Mark Goodman, executive director of the Student Press Law Center, said case law is on Tracy's side.

"No court anywhere in the country has ever ruled that a college journalist's status as a student disqualifies that person from protection other journalists are entitled to," he said.

Jerry Brown, dean of the UM School of Journalism, agreed.

"Linda Tracy is protected by the profession she is studying for, just as a student law clerk or fourth-year medical student would be in their respective professions," he said.

David Aronofsky, general counsel to the University of Montana, added, "We think student journalists are journalists. She's got a great case under Montana law. We just think [the law] ought to be interpreted correctly."

Another source of conflict in the case is the city's attempt to turn the court into an editor.

Characterizing Tracy's video as seeking to "depict police officers and law enforcement personnel in a biased manner," city attorneys also asked the court to review the documentary to assess whether Tracy was engaged in "irresponsible journalism," which the city argues, under Montana case law, would void her privilege.

Sherwood found this particularly disturbing.

"The City's position is that journalism that expresses an 'incorrect' point of view is not real journalism, and someone presenting such a viewpoint to the public is not a real journalist whose work is entitled to the protections of the law," Sherwood said in court documents. "It is a very small step from that position to Big Brother deciding what opinions are 'ungood' and deserving of punishment."

Sherwood said District Court Judge Douglas Harkin could settle the case with or without oral arguments. Harkin had not made a judgment or scheduled a hearing at the time the Report went to press.

Tracy said she would likely appeal if Harkin upholds the subpoena.

Regardless of Harkinís decision, Tracy has the support of the Montana journalism and educational community. Many journalism professors and media professionals are collecting money for Tracy's legal fees.

Aronofsky said the school is not officially involved in the case, but "has openly aligned itself with Linda Tracy and [has] urged the city to drop any effort to get the material."

"This school is not going to roll over and play dead while overzealous prosecutors ignore the shield law and go on fishing expeditions," Brown said.

"We value the publicís trust, and we have to be vigilant in protecting our credibility," he added. "Reporters should not be thought of as a branch of law enforcement or suspected as being undercover cops."

reports, Winter 2000-01