BYU law professor notes rise in media subpoenas

PROVO — First, President George W. Bush praised San Francisco Chronicle reporter Mark Fainaru-Wada for exposing steroid use by Barry Bonds and other athletes. Then, a federal judge sentenced the journalist to 18 months in prison to compel him to reveal his source.

Fainaru-Wada explained to his 9-year-old son and 6-year-old daughter that he might go to jail because he believed he'd made an important promise to protect someone.

He also could have told the children their father was one of an increasing number of journalists pressured by prosecutors to reveal their sources in recent years, according to a new study by a Brigham Young University law professor.

RonNell Andersen Jones said the national debate about reporters and confidential sources has been handicapped for years by a lack of information about how often prosecutors issue media subpoenas in an effort to unmask those sources.

Department of Justice officials had testified before Congress that subpoena use was rare. On the other hand, journalists had complained about a perceived increase of subpoenas they believed was turning into an "avalanche."

"The numbers being shared by both sides don't tell the story," Jones said.

The former Deseret News reporter characterized journalists as fretting about an orchard of apples that federal prosecutors described as a carton of oranges.

Jones found an increase in subpoenas, but no avalanche in her survey of 761 news organizations, published recently by the Minnesota Law Review.

The survey showed that 34 federal subpoenas issued in 2006 alone sought the names of confidential sources or material obtained by journalists on condition of anonymity. The Department of Justice previously had said 19 federal subpoenas had been issued to journalists since 1992.

"Certainly there has been an uptick," Jones said. "The most notable data is the federal subpoena data. The survey data suggest that federal subpoenas are more frequent than five years ago and certainly more than Department of Justice officials have noted in their testimony."

The federal data was just the beginning. The study also found a total of 3,062 subpoenas nationwide in 2006, in local, state and federal cases related to newsgathering.

"The statistically extrapolated data suggest nearly 8,000 subpoenas were issued to the press in 2006," Jones said. "That's not fairly categorized as a rarity."

The study is timely because Congress is expected to again consider a federal shield law this year. President Barack Obama and Sen. John McCain, R-Ariz., support the proposal.