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January 26, 2023 Feature

A Tale of Two Subpoenas: Reporter’s Privilege and the R. Kelly Trials

Seth A. Stern and Damon E. Dunn
Journalists and their lawyers don’t know in advance where a subpoena might issue and must navigate a confusing patchwork of approaches among courts.

Journalists and their lawyers don’t know in advance where a subpoena might issue and must navigate a confusing patchwork of approaches among courts.

GettyImages.com/cagkansayin via iStock

The question of when and in what circumstances journalists must disclose sources and information obtained from sources continues to be unsettled. A recent ruling involving a high-profile member of the music industry highlights this issue. This article discusses the case, the rulings, and the issues addressed and offers suggestions on how to try to resolve the issues in a rational and comprehensive manner going forward.

The R. Kelly Trial

Music superstar R. Kelly has been on or awaiting trial for the better part of the last two decades on charges that he sexually abused underage women, recorded it, and conspired to conceal the evidence. He has now been convicted by federal juries in New York and Chicago. He was sentenced to 30 years in the first trial and is awaiting sentencing in the latter. More charges likely await Kelly, including in Hennepin County, Minnesota, and Cook County, Illinois.

Kelly’s troubles largely began in 2000 when music journalist Jim DeRogatis—then employed by the Chicago Sun-Times—reported settlements between Kelly and alleged victims. Then, in 2002, DeRogatis received an anonymous copy of a videotape of Kelly abusing one of his victims. The Sun-Times turned the tape over to police, and it became the subject of Kelly’s 2008 Cook County child pornography trial, at which he was acquitted. The tape was also central to Kelly’s recent federal trial (and conviction) in the U.S. District Court for the Northern District of Illinois.

DeRogatis was subpoenaed to testify at both trials. Ironically, in the 2022 trial, District Judge Harry Leinenweber quashed the subpoena, despite the fact that the U.S. Court of Appeals for the Seventh Circuit has not recognized a reporter’s privilege, while Cook County Judge Vincent Gaughan declined to apply Illinois’s statutory reporter’s privilege in the 2008 trial. The inconsistency in regard to the treatment of DeRogatis’s testimony illustrates the confusing legal landscape courts must navigate when deciding whether to compel reporters to testify, and underscores the need for a shield law at the federal level. Without one, journalists, news sources, and media insurers will continue to be faced with uncertainty as to how the courts will address future disputes over when they can avoid or will be punished for refusing to give testimony regarding their sources.

The 2022 Subpoena

Kelly was tried, and ultimately convicted, for producing child pornography, enticing a minor to engage in sexual activity, and other charges. He was acquitted on related charges, including conspiracy to obstruct justice and conspiracy to receive child pornography. Codefendant Derrel McDavid, a former employee of Kelly’s music business, was tried, and ultimately acquitted, on charges of conspiracy to obstruct justice, conspiracy to receive child pornography, and receiving child pornography. Another codefendant, Milton Brown, was also acquitted of conspiring to receive child pornography.

McDavid’s lawyers issued a subpoena to DeRogatis on August 3, 2022, the same day McDavid filed a motion seeking discovery regarding communications between DeRogatis and a former assistant U.S. attorney, Angel Krull. McDavid’s lawyers alleged that Krull used a pseudonym when emailing DeRogatis under the username “piedpiper312” (Kelly often referred to himself as the “Pied Piper of R&B”). Although no order appears to have been entered, Judge Leinenweber reportedly denied the motion for discovery into communications between Krull and DeRogatis. Attorneys for McDavid nonetheless demanded that DeRogatis appear to testify on September 6, 2022 (an unexplained court closure delayed DeRogatis’s appearance until September 7).

Attorneys for DeRogatis and the New Yorker magazine—which engaged DeRogatis to report on Kelly’s New York trial—moved to quash the subpoena. They argued that the subpoena was unreasonable and oppressive under both Federal Rule of Criminal Procedure 17(c) and the First Amendment to the U.S. Constitution and that it furthered a pattern of harassment of DeRogatis (who had received various threats—and a bullet through his front porch window—while reporting on Kelly). Although the Seventh Circuit has declined to recognize a reporter’s privilege, the motion argued, citing the U.S. Supreme Court’s decision in Branzburg v. Hayes, that district courts still should take First Amendment considerations into account when evaluating the reasonableness and burdensomeness of a reporter subpoena.

Compelling DeRogatis to testify, the motion noted, would be especially inappropriate when his reporting, which relied on third-party sources whom the defense could have subpoenaed directly, would amount to hearsay. Further, the anonymous videotape he received 20 years earlier had already been authenticated by both police witnesses and the woman depicted on the recording, and DeRogatis would have no way to distinguish the physical VHS from any other unmarked cassette. Particularly in light of the court’s prior denial of the motion to discover correspondence between DeRogatis and Krull, the motion argued that whatever evidentiary value might be derived from DeRogatis’s testimony was outweighed by the chilling effect on journalists and their sources that is likely to occur whenever a reporter is required to testify.

Although DeRogatis’s sources were not all confidential, he was in the unique position of having been subpoenaed by someone who was himself a source. The motion observed that, should DeRogatis be asked, either on direct or cross-examination, about off-the-record conversations with McDavid, he risked being accused of breaching a confidentiality agreement. Presumably the subpoena would be construed as a waiver of any such agreement, but there were no guarantees.

In granting the motion to quash, Judge Leinenweber did not mention the First Amendment, but he agreed that DeRogatis’s testimony would be cumulative on the authenticity of the videotape. Although DeRogatis argued that the subpoena could chill the kind of investigative journalism that led to Kelly’s trial in the first place—and noted prior harassment and intimidation of DeRogatis for his reporting—it is unclear whether Judge Leinenweber applied Rule 17 without regard for DeRogatis’s reporter status. It is therefore possible that, without a shield law or reporter’s privilege, Leinenweber would have required DeRogatis to testify had he believed the testimony carried some—even minimal—evidentiary value (or if DeRogatis had been the first, rather than the third, witness called to authenticate the videotape).

The 2008 Subpoena

As mentioned above, Kelly’s attorneys subpoenaed DeRogatis to testify in Kelly’s 2008 trial. After repeatedly issuing subpoenas without seeking divestiture of Illinois’s statutory reporter’s privilege, Kelly moved for divestiture, which DeRogatis opposed under the Illinois Reporter’s Privilege Act as well as the First Amendment and the common law special witness doctrine. Although the act does not limit protected source material to confidential sources, at that time, unlike in 2022, many of DeRogatis’s sources remained confidential. He did not (and still does not), however, know the identity of his most critical source: whoever delivered the videotape to his mailbox.

The Illinois Reporter’s Privilege Act requires an application to divest the privilege to include:

the name of the reporter and of the news medium with which he or she was connected at the time the information sought was obtained; the specific information sought and its relevancy to the proceedings; and . . . a specific public interest which would be adversely affected if the factual information were not disclosed.

It also requires a finding that “all other available sources of information have been exhausted” and that the testimony “is essential to the protection of the public interest involved” before a court may divest the privilege. Beyond that, the statute affords courts discretion to deny divestiture of the privilege for case-specific reasons:

[T]he court shall have due regard to the nature of the proceedings, the merits of the claim or defense, the adequacy of the remedy otherwise available, if any, the relevancy of the source, and the possibility of establishing by other means that which it is alleged the source requested will tend to prove.

If a judge denies divestiture, the act provides that the privilege remains in effect during the pendency of an appeal. Illinois courts have interpreted the scope of the privilege afforded by the act expansively, both in terms of the material it protects and the showing necessary for divestiture.

Cook County Judge Gaughan nonetheless held the privilege inapplicable because, in his view, the testimony sought—regarding the events surrounding DeRogatis’s receipt of the anonymous videotape—did not constitute “source material” protected by the act. Gaughan’s order cited case law predating later interpretations of the act that clarified that “source material” was not limited to confidential sources. Accordingly, the court passed on the question of whether Kelly had made the statutory showing required for divestiture and ordered DeRogatis to testify.

Both Judge Gaughan and the appellate court denied DeRogatis’s emergency motions to stay the order compelling his testimony pending appeal. In an evidentiary hearing with the jury excluded, DeRogatis invoked both the First and Fifth Amendments (given that the State alleged the videotape was child pornography), and Judge Gaughan upheld his Fifth Amendment right so that DeRogatis did not testify at trial. The appellate court dismissed DeRogatis’s appeal of Judge Gaughan’s reporter’s privilege ruling as moot, finding that DeRogatis, having succeeded in avoiding testifying under the Fifth Amendment, could not appeal the denial of other bases he asserted to avoid testifying.

Although the appellate court suggested that, rather than taking the Fifth, DeRogatis could have stood on his reporter’s privilege objection and been held in “friendly” contempt, there is no guarantee that contempt findings against reporters will be friendly. New York Times reporter Judith Miller, for example, was jailed over her refusal to reveal sources to a grand jury. The U.S. Court of Appeals for the D.C. Circuit, citing Branzburg, declined to find a privilege, and she testified only after her source released her from confidentiality.

Inconsistency in Recognizing Reporter’s Privilege

The divergent Kelly rulings illustrate the unpredictability reporters face when subpoenaed for testimony (and when seeking to assure sources that conversations will remain confidential). Of course, this uncertainty is passed along to media insurers who cover subpoenas. The 2008 Kelly case shows that even in jurisdictions like Illinois that have codified a privilege, the relative scarcity of case law, combined with confusion arising from contrary laws elsewhere, can lead to unexpected results. A federal shield law would set out a clear statement of public policy and lead to the development of a coherent body of precedent fleshing out the scope of the privilege.

Since the majority in Branzburg declined to recognize a constitutional privilege protecting reporters from being compelled to testify regarding their sources, the law on reporter subpoenas has varied among states and federal circuits. Most states—with the exceptions of Hawaii and Wyoming—recognize at least some protection for reporters. Some states have codified those protections, while others have judicially crafted privileges. Some states limit protection to confidential sources, while some protect nonconfidential information as well. Additionally, some state privileges are qualified, while others are absolute.

Federal circuits also differ in the protection they afford to reporters and their sources. The differences largely arise from the weight given Justice Powell’s concurrence in Branzburg. Although the Court declined to recognize a constitutional privilege, Justice Powell, who delivered the deciding fifth vote, wrote:

The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.

Justice Powell clarified that “[t]he Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with respect to the gathering of news or in safeguarding their sources” and added that:

if the newsman is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation, or if he has some other reason to believe that his testimony implicates confidential source relationship without a legitimate need of law enforcement, he will have access to the court on a motion to quash and an appropriate protective order may be entered.

Federal circuits split on whether to take direction from the plurality or Justice Powell’s decisive concurrence, which in places more closely resembled Justice Stewart’s dissent. The Seventh Circuit, as mentioned, has declined to recognize a reporter’s privilege, although some district courts within the circuit have still applied heightened relevance standards in evaluating subpoenas to journalists. The U.S. Court of Appeals for the Sixth Circuit has remarked that “Justice Powell’s opinion certainly does not warrant the rewriting of the majority opinion to grant a first amendment testimonial privilege to news reporters,” and the D.C. Circuit, in the aforementioned Miller case, deferred to Branzburg at least when it comes to grand jury testimony.

Other appellate circuits have recognized something resembling a privilege. For example, the U.S. Court of Appeals for the Fourth Circuit requires courts deciding whether to compel a reporter to testify to consider “(1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information.” The test originated from LaRouche v. National Broadcasting Co., which affirmed the denial of a motion to compel where LaRouche had not exhausted reasonable alternative means of obtaining the information he sought from a reporter (e.g., deposing the reporter’s nonconfidential sources).

The U.S. Court of Appeals for the Second Circuit applies a similar test in recognition of the “paramount public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters.” Other appellate courts have recognized that the First Amendment implications of compelling reporter testimony warrant special consideration but have declined to fashion a specific test. Others encourage district courts to look to state shield laws as a reflection of public policy. Still others limit Branzburg to criminal cases—or even to grand jury proceedings—and recognize a more robust privilege in civil cases.

Federal Shield Law Debate

Branzburg therefore has led to a confusing patchwork of approaches that offers little assurance to journalists and their sources, who cannot know from where a subpoena might issue. Scholars and activists have long advocated for a federal shield law, both to encourage investigative journalism and to offer much-needed clarity. The closest Congress has come to date is the Privacy Protection Act of 1980 (PPA). After Zurcher v. Stanford Daily upheld law enforcement access to journalists’ materials pursuant to a search warrant, the PPA prohibited (subject to exceptions) search and seizure of media work product absent a subpoena.

There is some cause for optimism. In 2021, Attorney General Merrick Garland issued a memorandum announcing prohibitions, subject to limited exceptions, on the use of subpoenas, warrants, and other court orders to obtain records from journalists in leak investigations. Garland’s memorandum recognized that prior U.S. Department of Justice (DOJ) guidance, calling for a balancing test, was insufficient because balancing “may fail to properly weight the important national interest in protecting journalists from compelled disclosure of information revealing their sources, sources they need to apprise the American people of the workings of their government.” Further, Garland wrote that “to ensure that protections regarding the use of compulsory legal process for obtaining information from or records of members of the news media continue in succeeding Administrations, the Department will support congressional legislation to embody protections in law.”

In October 2022, the DOJ followed up Garland’s memorandum with its “Policy Regarding Obtaining Information from or Records of Members of the News Media; and Regarding Questioning, Arresting, or Charging Members of the News Media.” The policy clarifies some ambiguities in the memorandum regarding the scope of protection for “newsgathering.” It defines newsgathering as “the mere receipt, possession, or publication by a member of the news media of Government information . . . as well as establishing a means of receiving such information, including from an anonymous or confidential source.” It requires a determination from an assistant attorney general when it is uncertain whether one is a member of the news media and/or engaged in newsgathering.

It is unclear whether the DOJ has taken any action to follow through on its commitment to support legislation consistent with its memorandum and policy, but the Protect Reporters from Excessive State Suppression (PRESS) Act currently provides the greatest hope of a shield law at the federal level. The House bill passed on September 19, 2022.

The PRESS Act, introduced in the Senate by Sen. Ron Wyden (D-Or.) and in the House by Rep. Jamie Raskin (D-Md.) last year, reaches beyond confidential sources to protect “any information identifying a source who provided information as part of engaging in journalism, and any records, contents of a communication, documents, or information that a covered journalist obtained or created as part of engaging in journalism.” It broadly defines “covered journalist” to include “a person who gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”

It would arguably provide greater protection than many state shield laws, which, like the Illinois act discussed earlier, can be overcome on showings of necessity and/or exhaustion of other sources. Instead, exceptions are limited to disclosures “necessary to prevent, or to identify any perpetrator of, an act of terrorism against the United States” or “necessary to prevent a threat of imminent violence, significant bodily harm, or death.” It also restricts compelled disclosures not only directly from journalists but also from “covered service providers,” including telecommunications carriers, social media platforms, and email services.

Conclusion

Notwithstanding the optimism provided by the DOJ’s new policies and the House’s passage of the PRESS Act, other shield legislation has come and gone over the decades since Branzburg (including the 2017 Free Flow of Information Act introduced by Raskin and Rep. Jim Jordan (R-Ohio)). Although there currently seems to be some bipartisan desire for shield legislation—as well as support, at least on paper, from the DOJ—it remains to be seen whether current efforts will succeed. For the time being, journalists are faced with the same unpredictability and inconsistent results that DeRogatis encountered during the R. Kelly trials.

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    Seth A. Stern

    Freedom of the Press Foundation

    Seth A. Stern is the director of advocacy for the Freedom of the Press Foundation, chair of the TIPS Media, Privacy and Advertising Law Committee, and of counsel to Funkhouser Vegosen Liebman & Dunn Ltd. (FVLD) in Chicago. He argued the motion to quash the subpoena to a journalist during R. Kelly’s federal trial that is discussed in this article.

    Damon E. Dunn

    Funkhouser Vegosen Liebman & Dunn Ltd.

    Damon E. Dunn, a member of FVLD with a focus on media law and commercial litigation, represented various media parties in connection with the Kelly cases from the original Chicago Sun-Times investigation in 2000 through the 2022 motion to quash.