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California Court Rules Shield Law Protects Student Photojournalist

A California judge ruled on July 15, 2009 that a student photojournalist who witnessed a murder on a San Francisco street is covered by California's reporter shield law and does not have to turn his photos over to police.

According to a July 16 Associated Press (AP) story, San Francisco Superior Court Judge Tomar Mason ordered San Francisco police to return the photos they seized from the student's apartment. The student, who said he fears for his life and whose identity has not been reported, was with 21-year-old Norris Bennett, taking photographs for a project on life in the San Francisco neighborhood of Bayview, when Bennett was shot and killed while playing a dice game on April 17.

A May 19 San Francisco Chronicle story said that the San Francisco State University student had been seen taking photos while paramedics treated Bennett. The story also said that, according to police, the student phoned Bennett's family members shortly after the shooting and told them to come to the scene.

The San Francisco Chronicle reported July 16 that the 22-year-old student had refused to talk with police about what he saw when Bennett was killed. San Francisco police obtained a search warrant for his apartment in May and seized photos and other items, but the student argued that he was a journalist covered by California's shield law, Cal. Const. art. I, § 2(b), and Cal. Evid. Code § 1070, and demanded that the warrant be quashed and the items returned to him.

California's shield law states in part that "a publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication ... cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose ... the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public."

Michael Ng, an attorney for the student, had argued that his client was a freelance journalist, and that California courts have previously ruled that freelancers and bloggers are also protected under the state's shield law. (See "Appeals Court Finds That Bloggers Have Same Protection As Journalists, Newsgatherers" in the Summer 2006 issue of the Silha Bulletin.)

Ng told the court that the student was trying to sell his project to The Wall Street Journal and the Bay Area News Group, publisher of the San Jose Mercury News, Oakland Tribune, and Contra Costa Times. "I don't think we'd be here if the police executed a search warrant on the San Francisco Chronicle or on a CNN van," Ng argued before Mason, according to a June 14 Chronicle story. "Our state has given one of the most broad protections available to journalists," Ng said. "The people of the state of California have decided to draw a line around the newsgathering process, so we don't have to decide these matters on a case-by-case basis."

The June 14 Chronicle story reported that the district attorney's office argued that simply hoping to sell a project did not qualify someone for coverage under the shield law. "He was working on a school project," Laura Zunino, a lawyer for the district attorney's office, argued. Extending the shield law to him, she said, would "in essence, eviscerate the rule." Zunino added that the student lacked an established freelance relationship with a media outlet that courts have recognized as a condition for protection under the shield law.

The July 16 Chronicle story reported that no arrests have been made in Bennett's killing. "We're just going to try to find another angle - we're just going to find some witnesses who aren't cowards, like this student is, hiding behind the shield law," said Lt. Mike Stasko of the police homicide detail.

The May 19 Chronicle story noted that the student was not the first non-mainstream media reporter to claim California's shield law as a means of protection from official interrogation. Josh Wolf, a political activist and blogger, spent 226 days in jail after he posted video of a 2005 protest in San Francisco, then refused to turn over additional footage to federal authorities looking for evidence that demonstrators had committed crimes.

Wolf was denied protection under the California law when the 9th Circuit U.S. Court of Appeals affirmed a federal district court decision concluding that Wolf had produced no evidence he was connected or employed by a media organization as required by the statute. (See "Freelance Journalist and Blogger Released After 226 Days in Prison" in the Spring 2007 Silha Bulletin.)

- Jacob Parsley
Silha Research Assistant