On April 10, 2009, the Veterans Affairs Department (VA) returned a digital memory card to a radio reporter after confiscating it while the reporter interviewed a veteran at the VA Medical Center in Washington, D.C.
David Schultz, a reporter for local National Public Radio (NPR) affiliate WAMU 88.5 in Washington, D.C., attended a public meeting on April 7 hosted by the VA Medical Center at which veterans spoke about the quality of their health care, according to an April 10 Associated Press (AP) story.
After the meeting, Schultz spoke with veteran Tommie Canady, who commented publicly during the meeting about the quality of his treatment for terminal pancreatic disease. Schultz recorded the interview, in which Canady said he was unhappy with his VA treatment, on his digital recorder.
While they were speaking, Schultz and Canady were interrupted by VA public affairs officer Gloria Hairston, who said Schultz could not use the material on the recorder, according to an April 13 post on Federal Eye, a Washington Post blog. When Schultz objected, Hairston walked away and returned with security guards who told Schultz to hand over his equipment. Schultz did so after calling his editor, who advised him to hand over the card and leave, CNN reported April 11. Hairston said she would erase the audio from Schultz’s memory card.
“This whole incident was completely out of nowhere,” Schultz said, according to CNN. “I’ve been a professional journalist for three years. I’ve never seen anything like this.”
Federal Eye reported, based on WAMU’s broadcast of the recording’s contents after it was returned, that Hairston first interrupted the interview as Canady told Schultz that he was forced out of the Army by a racist captain and was homeless for three years. On the audio recording, Hairston tells Schultz, “I can’t allow you to use this. I can’t.” She then says to Canady “OK you can’t talk anymore. … You can’t do it.” Schultz told Canady, “You have a right to talk if you want to talk.”
When Hairston left to find security guards, Canady told Schultz that patients at the VA Medical Center did not receive proper care from staff. “I’ve spent months in here, some of these guys spend years in here. We know exactly what goes on in this hospital, and they hide it. It’s time for it to come out to the public. This is sad.” A transcript of the recorded conversation is available online at http://voices.washingtonpost.com/federal-eye/2009/04/post_6.html?hpid=news-col-blog.
Hairston told Schultz that he and Canady did not sign consent forms that are required by the VA before reporters can talk to hospital patients, according to an April 11 Washington Post story. VA spokeswoman Katie Roberts said “We have procedures and policies in place, so that our patients can make informed decisions about what information they feel comfortable releasing or discussing with the public. That is why before we permit one-on-one interviews to be filmed or videotaped on our premises we request written consent,” the Federal Eye blog reported April 10.
WAMU stated that Schultz’s First Amendment rights were violated by the seizure of the memory card from the digital recorder. In a letter sent April 10 to the VA, WAMU General Manager Caryn G. Mathes wrote, “Mr. Schultz’s newsgathering activities and the product of his work not only are protected by the First Amendment, but he was attending a public meeting at which the VA had encouraged public discussion on the treatment it gives to minority veterans.” The letter demanded the return of the “unlawfully seized” memory card.
In a letter to the VA, Barbara Cochran, president of the Radio-Television News Directors Association, said “For a government official to take a reporter’s equipment away while he is conducting an interview amounts to the kind of prior restraint that has been repeatedly found unconstitutional by the U.S. Supreme Court.”
Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press (RCFP), also sent a letter to the VA, stating that confiscation of Schultz’s memory card was a violation of the Privacy Protection Act of 1980. The Privacy Protection Act, 42 U.S.C. 2000aa et seq., protects a journalist’s work product and documentary materials from seizure by federal law enforcement officials or employees in connection with criminal investigations. If the government seeks access to such information, it must file a subpoena to obtain the material.
The RCFP letter said the events were reminiscent of a 2004 incident in which two reporters’ tape recorders were seized by U.S. marshals during a speech delivered by U.S. Supreme Court Justice Antonin Scalia in Hattiesburg, Miss. Although Scalia has a strict no-recording policy for public appearances, according to a June/July 2004 American Journalism Review story, no announcement was made regarding the policy preceding his address at the Presbyterian Christian High School. Near the conclusion of the speech, U.S. marshals confiscated tape recorders belonging to an AP reporter and a local journalist. The audio tapes were later returned, but Scalia’s remarks were taped over. After the AP filed a lawsuit in federal district court in Jackson, Miss., alleging violations of the First, Fourth, and Fifth Amendments and the Privacy Protection Act, the Marshal Service acknowledged that it violated federal law. (See “US Marshal Orders Reporters to Erase Scalia Speech Tapes” in the Spring 2004 Silha Bulletin.)
The AP reported April 10 that the VA returned the sound card to Schultz and issued a statement stating it “regrets this incident occurred as we appreciate the interest of the press in covering veterans’ issues.”
An April 16 RCFP story said that WAMU was still “very concerned” that the VA had made suggestions that Schultz did not identify himself as a reporter at the VA public meeting.
CNN reported April 11 that VA spokeswoman Roberts said that Canady was “confused and didn’t know he (Schultz) was a reporter.” Schultz, according to Roberts, refused to sign in when he arrived at the VA meeting even though other members of the media did so. Roberts also said Schultz became “hostile” when asked to sign a form in order to interview Canady.
In the letter to the VA, WAMU General Manager Mathes said Schultz contacted the VA before the meeting to say that he would attend and identified himself to a public affairs official at the meeting. Schultz’s reporting equipment also displays WAMU’s logo.
“We reiterate our request for a prompt apology to WAMU and Mr. Schultz,” Mathes said, according to the April 16 RCFP story. “And we ask that the VA stop suggesting that Mr. Schultz in any way concealed his identity as a journalist, which is simply untrue.”
The VA announced that it would begin an investigation of the incident on April 13. “We want to do a top to bottom review in order to learn what happened, why it happened, and what lessons can be learned from the experience,” said Roberts in an April 12 statement. “We need to grow from this incident in order to determine how we can better provide media access while supporting the privacy of our Veterans.”
ABC News reported April 10 that Schultz told WTOP-AM radio that “the story is not about me versus the hospital. It’s about why is the hospital taking these measures to prevent Mr. Canady from speaking. What are they trying to hide?”
– Amba Datta
Silha Research Assistant