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Just weeks after a judge quashed the county’s effort to force a reporter to give up her confidential sources, prosecutors have lost a bid to force another journalist to appear in court. This time, a judge ruled that a local TV news photojournalist didn’t abandon his role as a reporter when he acted as a good Samaritan while filming a stalled car on the freeway.
At issue: When is a journalist on duty? And when is he or she just a civilian who isn’t protected by the California reporter’s “shield” law, which strictly limits when attorneys can haul journalists into court to testify about their work?
The dispute over the rights of KGTV/10News staff photojournalist Paul Anderegg unfolded during court proceedings Thursday in the case of a man named Israel Morales, who’s been charged with three misdemeanor counts, including two allegations of drunken driving, regarding an incident that happened in the early morning hours of July 18, 2017.
The account provided by prosecutors goes like this: Anderegg responded to a scanner report of a stalled car in a lane of I-5. He was the first to arrive, and found Morales pushing his vehicle on the freeway. Anderegg tried to convince Morales to push his car to the shoulder, but the man refused and “appeared to be incoherent.” Anderegg then called 911 and witnessed an accident as another car hit Morales’ vehicle.
Prosecutors argued that Anderegg wasn’t acting as a journalist when he watched what happened — meaning he could be forced to come to court and potentially testify about what he saw. “There was nothing that felt like it was a story when he got out of the car,” Deputy District Attorney Joel Madero said at a hearing at the Chula Vista county courthouse Thursday.
But attorney Matthew Halgren, who represented Anderegg, said the journalist was simply doing his job. “He goes not only to take a picture of something that’s already happened but to record the scene as it happens,” Halgren said at the hearing. “If something interesting was going to happen it, was Mr. Anderegg’s job to record it. He was ready with film rolling to capture whatever happened.” (Disclosure: Halgren also works with Voice of San Diego.)
Under the state reporter shield law as written and interpreted by judges, reporters generally can’t be forced to expose their sources, reveal unpublished or unaired work, or describe what they observed.
Retired Judge Carl Davis, who was enlisted to hear the dispute over the photojournalist’s testimony, ruled in favor of Anderegg and refused to allow prosecutors to subpoena him. “He went there as a journalist and turned on his camera, and it stayed on,” Davis said, so he was protected by the state shield law.
Madero said an appeal is unlikely.
An advocate for journalist rights said the DA’s arguments missed the mark.
“If Mr. Anderegg were off-duty, and he happened by the accident scene and never started collecting information for the purpose of potentially using it for broadcast, then perhaps he would not qualify as a journalist. But that’s not what happened here,” attorney David Snyder, executive director of California’s First Amendment Coalition, told me before Thursday’s hearing.
“Journalist shield laws like California’s are absolutely essential to the news-gathering process,” he said. “If journalists had to turn over their unpublished work to the state every time the state felt the need for that information, reporters would essentially become an arm of the state’s investigatory apparatus. It’s essential to the healthy functioning of a democracy that journalists and their work not be commandeered in this way.”
Earlier this year, the county drew the attention of journalists nationwide when attorneys tried to force former San Diego CityBeat reporter Kelly Davis to testify about her in-depth coverage of the high number of deaths at local jails. (Davis is also a contributor to Voice of San Diego.) The county wanted to challenge her conclusions as part of its defense against a lawsuit filed by the wife of an inmate who killed himself.
The same law firm that defended the TV photojournalist worked for Davis on a pro bono basis and persuaded a judge to rule in her favor. The county is now challenging Davis’ conclusion, however, that the suicide rate at jails here was the second-highest among similar systems in the state. The county brought in a statistician who said jails here actually had the state’s third-worst suicide rate.