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Behind the Shield

Will the Hell’s Angels video case determine who is or isn’t a journalist?

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When University of Montana journalism senior Linda Tracy spotted helicopters flying without their lights on over downtown Missoula on a sweltering Friday night in late July, her journalistic instincts told her that a news story was unfolding. So she grabbed her video camera, raced downtown and captured images of Hell’s Angels racing up and down the streets on their Harleys, revelers climbing on awnings, and protesters clashing with law enforcement officials in full riot gear.

“To be honest, my first thought was, there weren’t any other cameras down there, and I had the scoop,” recalls Tracy.

The hastily prepared montage that Tracy compiled from nearly two hours of videotape into a 20-minute documentary entitled “Missoula, Montana” represents one of the most complete records of what occurred that weekend, independent of the footage shot by law enforcement personnel. Portions of her videotapes were aired by KPAX-TV during their nightly news. A copy of her documentary was turned over to the independent review panel that is currently investigating the events surrounding the Hell’s Angels visit. For a time, the City of Missoula was even selling compilation tapes that included Tracy’s documentary to the public for $15 apiece without her permission, until her lawyer notified Mayor Mike Kadas that this violated the copyright protection of Turtle Majik Productions, Tracy’s legally registered business name.

But when the City asked Tracy if she would turn over her complete, unedited videotapes in order to assist the Missoula Police Department and the city attorney’s office in establishing legal cases against “known and unknown defendants,” Tracy refused. She had heard that one of the protesters whose charges were initially dropped had since been reinstated based on videotape evidence. Tracy recalls, “I didn’t want anything to do with that.”

As a result, at 7 a.m. on Oct. 11, two Missoula detectives knocked on Tracy’s door and served her with a subpoena demanding that she surrender all unedited videotapes and video images taken of the crowds and arrests on the weekend of July 29 and 30. Tracy refused and is now fighting that subpoena in court, citing Montana’s Media Confidentiality Act, which protects journalists from divulging their sources and any information they gather from those sources. In the process, her case raises an as yet unchallenged legal question in Montana: What constitutes a journalist and who can rightfully claim a journalist’s protections under state law?

The Media Confidentiality Act, generically referred to in most states as the “shield law,” is designed to protect journalists from divulging their sources or any information gathered from them which could later be used against that source. Shield laws, which are on the books in 30 states and the District of Columbia, are based on the principle that if a reporter’s work material—notebooks, recordings, videotapes, negatives, etc.—are confiscated and used against the source, this will have “chilling effect” on the willingness of people to come forward with stories, thus hampering journalists’ ability to do their jobs effectively without coercion or intimidation.

Who or what is protected under shield laws differs from state to state. Montana’s shield law protects “any person connected with or employed by a newspaper, magazine, press association, news agency, news service, radio station, television station or community antenna television service … [employed or associated] for the purposes of gathering, writing, editing or disseminating news.”

In a brief opposing Tracy’s motion to quash her subpoena, City of Missoula Deputy Attorney Gary Henricks argues that Tracy failed to establish her credentials as a bona fide journalist since she is a journalism student, not a paid employee of a television station or news agency. Tracy’s business application for Turtle Majik Productions, in which she describes the business transacted as “multi-media, video, audio, [and] web design,” states nothing about her conducting investigative reporting, Henricks argues.

The City further claims that all other news media that had videotapes of the Hell’s Angels incidents—KECI-TV, KPAX-TV and Missoula Community Access Television—complied with their subpoenas or had no tapes to surrender.

“It seems odd that this student of journalism refuses to produce this information when all other news stations who were issued subpoenas have complied without objection,” the City argues.

In fact, what KECI and KPAX turned over (MCAT had nothing to provide) were copies of their aired broadcasts and, in the case of KECI, tapes dubbed for later broadcast. No unedited videotapes like those requested of Tracy were ever surrendered.

Tracy’s attorney, Rick Sherwood, also the attorney for the Montana Freedom of Information Hotline, argues that Tracy’s student status is irrelevant.

“I don’t see Linda [Tracy] on the edge of the [shield law] inclusion in any way,” Sherwood says. “I think the issue of her being a journalism student as opposed to a journalist is a false issue. I don’t think that somehow the government gets to license who can claim the protection and who cannot.”

Members of the journalism community in Montana and nationally who have rallied to Tracy’s defense—the Montana Newspaper Association and the Society of Professional Journalists (SPJ) have both pledged $500 and $1,000, respectively, to her legal defense fund—agree, arguing that neither the state nor the courts should be in the business of defining who is a journalist.

“We just don’t like the idea of governments getting a say over who is and who isn’t a journalist,” says Gregg Leslie, legal defense director for the Reporters’ Committee for Freedom of the Press (RCFP), a nonprofit media advocacy group. “There are just too many people out there who are doing good work and who need that kind of protection who won’t get it if you come up with a definition.”

Ian Marquand, president of the SPJ Montana chapter and national chairman of the SPJ Freedom of Information Committee, says that Tracy’s case highlights some of the shortcomings in Montana’s shield law, which hasn’t been amended since 1979 and doesn’t include a vast array of new, nontraditional news media such as trade journals, video documentaries, electronic publications, and so on.

“How many freelance writers are out there, people who are self-employed? Countless,” says Marquand. “They are journalists. They are gathering information and disseminating it with the goal of enlightening the public.”

If free press advocates oppose the notion of the government or the courts defining who is a journalist, they are equally squeamish about the idea of allowing them to define what is news, newsgathering or in the public interest. Leslie cites a decision by the Central Intelligence Agency and the National Security Agency, which recently denied a journalist’s expedited request under the Freedom of Information Act to turn over information the CIA had about threats on the life of Princess Diana. In that case, the CIA decided that events leading up to Diana’s death were “not newsworthy.”

“If that’s not newsworthy or in the public interest, I don’t know what is,” says Leslie.

In Montana, Sherwood says that state case law is limited on the question of shield law challenges. In fact, according to an RCFP national survey, there were only four subpoenas issued against the eight Montana news organizations surveyed in 1997. However, that same report found that nationwide, subpoenas against news agencies are on the rise, with 54 percent of the 597 news agencies surveyed reporting at least one subpoena in 1997. (One television station received 107 that year.) The study concluded that news organizations received so many subpoenas that it altered their news-gathering practices and “had an immeasurable impact on the media’s ability to disseminate information to the public.”

Curiously, the City’s most recent brief goes one step further, challenging Tracy’s journalistic credentials by questioning the objectivity of her documentary.

“Review of the videotapes by the court will indicate that the plaintiff [Tracy] was not conducting the editing of the videotapes in accordance with accepted journalistic standards concerning bias,” the City argues. Her decision to portray law enforcement officials in a negative light while omitting similar aggressive behavior by protesters, the City argues, may not adhere to “established and accepted journalistic standards.” The City is asking that a judge review Tracy’s unedited tapes to determine if she was “creating a chronological movie of what took place or if she was engaged in irresponsible journalism.”

“That’s ridiculous,” counters Leslie. “There should be no bias test of who is or isn’t a journalist. We fight against any such definition of what reasonable standards within journalism are, because courts should not be in the position of determining whether a journalist is a good journalist or a bad journalist.”

Ironically, Tracy says that her motivation for compiling the video in the first place was to give the public a more accurate and thorough portrayal of the events of that July weekend than the few images broadcast on local news.

“I really felt like I was doing a service to the community to be able to visually represent what happened that weekend in a short amount of time,” she says.

Tracy won’t say what she will do if the judge orders her to turn over the tapes: give them up or go to jail.

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