I've put some relevant files at: http://www.mccullagh.org/subpoena/ And I'll add to it throughout the day. This motion is at: http://www.mccullagh.org/subpoena/motion.032901.html Again, thanks to the many people who sent along messages of support. The trial begins next Tuesday in federal district court in Tacoma, Washington. Since the judge won't rule on my motion until that morning, I'll have to be there. -Declan --- http://www.mccullagh.org/subpoena/motion.032901.html PETER SULLIVAN TIMOTHY L. ALGER GIBSON, DUNN & CRUTCHER LLP 333 South Grand Avenue Los Angeles, California 90071-3197 Telephone: (213) 229-7000 Facsimile: (213) 229-7520 KELLY PATRICK CORR CORR CRONIN LLP 1001 Fourth Avenue Suite 3700 Seattle, Washington 98154-1135 Telephone: (206) 625-8600 Facsimile: (206) 625-0900 Attorneys for non-party witness DECLAN McCULLAGH UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA UNITED STATES OF AMERICA, Plaintiff, v. JAMES DALTON BELL, Defendant. CASE NO. CR 00-5731 JET NOTICE OF MOTION AND MOTION FOR ORDER QUASHING SUBPOENA ON DECLAN McCULLAGH, OR FOR PROTECTIVE ORDER; MEMORANDUM OF POINTS AND AUTHORITIES; DECLARATION OF DECLAN McCULLAGH Hearing date: April 3, 2001 Hearing time: 9:30 a.m. Hearing place: Courtroom E (Hon. Jack E. Tanner) Trial date: April 3, 2001 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on April 3, 2001, at 9:30 a.m., in Department E of the United States District Court for the Western District of Washington, located at 1717 Pacific Avenue, Tacoma, Washington 98402, Declan McCullagh ("McCullagh"), a reporter for Wired News, will and hereby does move the Court for an order quashing a Subpoena in a Criminal Case served by the Office of the United States Attorney. In the alternative, McCullagh requests that the Court enter a protective order limiting the testimony of McCullagh at the trial of James Dalton Bell to matters that were published by Wired News. McCullagh asks that the subpoena be quashed, or a protective order entered, on the separate grounds that inquiry beyond those matters that were published is (1) unreasonable and oppressive as defined by Rule 17(c) of the Federal Rules of Criminal Procedure, and (2) would violate the First Amendment's protection of unpublished information gathered by journalists. Each of these grounds is amplified and explained in the attached Memorandum of Points and Authorities. This Motion is based on this Notice of Motion and Motion, the attached Memorandum of Points and Authorities, the attached Declaration of Declan McCullagh, the complete files and records in this action, and on such argument and evidence as may be presented to the Court at the hearing on this Motion. DATED: March 29, 2001. PETER SULLIVAN TIMOTHY L. ALGER GIBSON, DUNN & CRUTCHER LLP KELLY PATRICK CORR CORR CRONIN LLP By: ________________________________ Kelly Patrick Corr Attorneys for non-party witness DECLAN McCULLAGH MEMORANDUM OF POINTS AND AUTHORITIES 1. SUMMARY OF ARGUMENT By this motion, non-party witness Declan McCullagh ("McCullagh"), a reporter for Wired News, an online news magazine published by Lycos, Inc., seeks to quash the trial subpoena served on him by the Office of the United States Attorney. That subpoena requires him to testify for the government at the trial of James Dalton Bell and produce copies of two articles written by McCullagh and published by Wired News ("the Articles"): * "Crypto-Convict Won't Recant," published April 14, 2000; and * "IRS Raids Cypherpunk's House," published November 11, 2000. The prosecutor has informed counsel for McCullagh that McCullagh will be asked only to verify the accuracy of statements by Bell that are included in the Articles. Bell's counsel, however, has made clear that cross-examination will not be limited to published information, and Bell might seek testimony regarding a variety of areas that Bell thinks will be helpful to his defense. In response to a proposal by the government and McCullagh's counsel that the parties stipulate to the accuracy of the published statements, Bell's counsel has referred the question to Bell. Bell has not responded to correspondence from McCullagh's counsel regarding a stipulation, and declined on Thursday, March 29, 2001, to meet with McCullagh's counsel at the federal penitentiary. It is unknown at this time whether Bell will sign the stipulation, necessitating this motion. While the government might intend only to elicit testimony regarding published information - which McCullagh has offered to verify by affidavit - the subpoena sets the stage for an inquiry into McCullagh's newsgathering practices and his unpublished work product. Based on the statements of Bell's counsel, it appears likely that Bell will attempt to use McCullagh as his mouthpiece by compelling him to repeat before the jury Bell's allegations of conspiracy and persecution by federal prosecutors and agents, and by compelling McCullagh to disclose information that he has gathered over the past seven years while covering policy and technology - including the "cypherpunk" phenomenon - for publications including Wired News and Time magazine. Such an intrusion into newsgathering is not permitted under Rule 17 of the Federal Rules of Criminal Procedure or the First Amendment to the United States Constitution. While the government might consider the published statements of Bell to be relevant, a wide-ranging inquiry into McCullagh's unpublished research as a journalist is unreasonable and oppressive, and runs afoul of the First Amendment's protection of newsgathering and the editorial process. This First Amendment-based journalists' privilege reflects "the preferred position of the First Amendment and the importance of a vigorous press." Zerilli v. Smith, 656 F.2d 705, 712 (D.C. Cir. 1981). Requiring McCullagh to testify, even if it is very limited on direct examination, creates an impermissible burden by necessarily exposing McCullagh to the risk of an intrusive cross-examination that will interfere with McCullagh's current and future newsgathering. Accordingly, the Court should quash the subpoena or, in the alternative, enter a protective order limiting McCullagh's testimony to those matters that were published in the Articles. 2. BACKGROUND McCullagh is the Washington, D.C., bureau chief for Wired News. He has been an on-line journalist since 1995, and has covered politics and technology for numerous publications, both traditional and online. Prior to joining Wired News, McCullagh was a reporter for Time magazine and Time Digital Daily, and a correspondent for HotWired. (Declaration of Declan McCullagh ¶ 2.) McCullagh has been covering Bell's battles with the law since April 1997, and has written about six articles about Bell, including the two articles regarding which the government now seeks McCullagh's testimony. (Id. ¶ 5.) McCullagh continues to conduct interviews and collect information about Bell and the "cypherpunk" movement, with the intention of publishing additional articles. (Id. ¶ 6.) It has been his intention to cover Bell's trial. (Id.) Over the past several years, Bell and McCullagh have communicated irregularly, mostly by telephone. Some of the information provided to McCullagh by Bell has resulted in news stories; some has not, but might be used in future stories. (Id. ¶ 7.) McCullagh carefully retains information that he gathers as a journalist until it is useful for published articles. (Id. ¶ 8.) It is McCullagh's belief that sources speak to him and cooperate with his newsgathering efforts because he is trustworthy and independent. (Id.) Some of McCullagh's sources already have told him that they will stop assisting him or providing him with information if he testifies in Bell's trial. (Id. ¶ 9.) Of particular concern to McCullagh is the likely loss of sources who respect him for his independence and who, in some circumstances, are challenging the authorities on issues relating to Internet freedom. (Id.) These sources, who have given McCullagh information that was vital to covering all sides of Internet issues, are likely to view McCullagh (erroneously) in the future as an agent for the government if he is compelled to testify for the prosecution in this trial. (Id..) McCullagh also fears that testifying about unpublished information will jeopardize his credibility as a journalist. (Id. ¶ 10.) Many people who have provided McCullagh with information have done so on the understanding that he was working as a reporter, and not gathering information for litigants. (Id.) The information that he receives from sources leads him to other sources and additional information; disclosure of his newsgathering techniques and practices will put him at a competitive disadvantage in the future. (Id.) McCullagh believes that disclosure of his work product could compromise his reputation as an impartial journalist and a communicator of news, and create the false perception that McCullagh can be used by litigants as a collector and presenter of information helpful to their causes. (Id.) 3. THE SUBPOENA SHOULD BE QUASHED BECAUSE IT IS UNREASONABLE AND OPPRESSIVE While the government has indicated its willingness to limit McCullagh's testimony to verification of the accuracy of published statements made by Bell, putting McCullagh on the witness stand necessarily raises the possibility that Bell will challenge McCullagh's testimony on direct by inquiring into unpublished matters. Indeed, Bell's lawyer has informed counsel for McCullagh that Bell will want to obtain testimony from McCullagh because Bell considers McCullagh to be sympathetic to him. Bell apparently hopes to bring before the jury Bell's allegations of government wrongdoing by asking McCullagh to testify about Bell's conversations with McCullagh, and to disclose any research McCullagh might have conducted relating to Bell's theories and accusations. Such testimony is irrelevant to the charges of interstate stalking for which Bell is on trial. The government's need for Bell's published statements is tenuous at best: the quotations in the Articles appear to be rhetoric; they offer no evidence that Bell crossed a state line with the intention of injuring or harassing alleged victims Mike McNall and Jeff Gordon. Further, the likely inquiry by Bell that follows from McCullagh's verification of the quotations in the Articles is not relevant at all. Rather, it merely distracts the jury from the charges at issue while compelling McCullagh to describe his collection of information from numerous sources, and his selection of material for publication. Put simply, Bell's likely cross-examination of McCullagh will be a fishing expedition in its purest form. The "mere hope" of obtaining exculpatory evidence is not sufficient for enforcement of a Rule 17 subpoena. United States v. Cuthbertson, 630 F.2d 139, 146 (3d Cir. 1980), cert. denied, 449 U.S. 1126 (1981) ("Cuthbertson I"). Thus, an evaluation of the profound impact of the subpoena on McCullagh establishes that the subpoena is unreasonable and oppressive, in violation of Rule 17. The threatened intrusion into the newsgathering process requires an order quashing the subpoena in its entirety. 4. THE SUBPOENA SHOULD BE QUASHED, OR A PROTECTIVE ORDER ENTERED, BECAUSE UNPUBLISHED INFORMATION IS PROTECTED BY THE FIRST AMENDMENT A. The Burden Imposed By Subpoenas Such As The One At Issue Here Has Caused The Courts To Extend The Privilege To Unpublished Information In Branzburg v. Hayes, 408 U.S. 665, 707 (1972), the United States Supreme Court recognized that journalists' newsgathering activities qualify for protection under the First Amendment to the United States Constitution. The Court concluded that "without some protection for seeking out the news, freedom of the press could be eviscerated." Id. at 681. Justice Powell, in casting the deciding fifth vote, stated 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 the safeguarding of their sources." Id. at 709 (Powell, J., concurring). Although the Court did not permit the reporters in the Branzburg case to refuse to appear and testify before grand juries, federal courts have interpreted Branzburg as recognizing a qualified privilege that protects information gathered by journalists in preparation for new s reports, but which has not been published. See, e.g., Cuthbertson I, 630 F.2d at 146-47; Von Bulow v. Von Bulow, 811 F.2d 136, 143 (2d Cir. 1987); United States v. LaRouche Campaign, 841 F.2d 1176, 1181-82 (1st Cir. 1988). The United States Court of Appeals for the Ninth Circuit has recognized this First Amendment privilege in the context of criminal proceedings, Farr v. Pitchess, 522 F.2d 464, 467-68 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976), and has held that the privilege protects unpublished information, even if it is not obtained under an agreement of confidentiality, Shoen v. Shoen, 5 F.3d 1289, 1295 (9th Cir. 1993) ("Shoen I"). A court must weigh any claim of First Amendment privilege against the need for disclosure and strike a balance in favor of the "paramount interest." Farr, 522 F.2d at 468. The Ninth Circuit explained in Shoen I that "the privilege is a recognition that society's interest in protecting the integrity of the newsgathering process, and in ensuring the free flow of information to the public, is an interest `of sufficient social importance to justify some incidental sacrifice of sources of facts needed in the administration of justice.'" 5 F.3d at 1292 (quoting Herbert v. Lando, 441 U.S. 153, 183 (Brennan, J., dissenting).). Protection of unpublished information is critical to freedom of speech, even where it is not gained under a promise of confidentiality, because routine demands for such information in court will interfere with journalists' work and independence. The Ninth Circuit stated: "The . . . four interests named are the threat of administrative and judicial intrusion into the newsgathering and editorial process; the disadvantage of a journalist appearing to be an investigative arm of the judicial system or a research tool of government or of a private party; the disincentive to compile and preserve non-broadcast material; and the burden on journalists' time and resources in responding to subpoenas." . . . To the extent that compelled disclosure becomes commonplace, it seems likely indeed that internal policies of destruction of materials may be devised and choices as to subject matter made, which could be keyed to avoiding disclosure requests or compliance therewith rather than to the basic function of providing news and comment. In addition, frequency of subpoenas would not only preempt the otherwise productive time of journalists and other employees but measurably increase expenditures for legal fees. Id. at 1294-95 (quoting LaRouche Campaign, 841 F.2d at 1182). The Ninth Circuit concluded that requiring journalists to testify impedes their ability to collect information, and thereby chills speech. "It is their independent status that often enables reporters to gain access, without a pledge of confidentiality, to meetings or places where a policeman or a politician would not be welcome. If perceived as an adjunct of the police or of the courts, journalists might well be shunned by persons who might otherwise give them information without a promise of confidentiality, barred from meetings which they would otherwise be free to attend and to describe, or even physically harassed if, for example, observed taking notes or photographs at a public rally. Id. at 1295 (quoting Duane D. Morse & John W. Zucker, The Journalist's Privilege in Testimonial Privileges (Scott N. Stone & Ronald S. Liebman eds., 1983), at 474-75). The Third Circuit reached the same conclusion in Cuthbertson, a criminal case: We do not think that the privilege can be limited solely to protection of sources. The compelled production of a reporter's resource materials can constitute a significant intrusion into the newsgathering and editorial processes. See Loadholtz v. Fields, 389 F. Supp. 1299, 1303 (M.D. Fla. 1975). Like the compelled disclosure of confidential sources, it may substantially undercut the public policy favoring the free flow of information to the public that is the foundation for the privilege. See Riley v. City of Chester, [612 F.2d 708, 716 (3d Cir. 1979)]. Therefore, we hold that the privilege extends to unpublished materials in the possession of CBS. See Altemose Construction Co. v. Building & Construction Trades Council, 443 F. Supp. 489, 491 (E.D. Pa. 1977) ("this qualified privilege can even apply when the news source and, perhaps, a portion of the withheld writing, are not confidential"). Cuthbertson, 630 F.2d at 147. Democracy's keystone is the dissemination of information to the public, permitting it to make informed choices. This dissemination depends on journalists who are successful in gathering facts, and that, in turn, depends on sources who will not disclose information unless they believe they are dealing with professionals who are trustworthy and objective. By compelling a journalist to disclose work product whenever a litigant views it as helpful to his or her case, a court sacrifices the very First Amendment freedoms that keep our nation informed and our government accountable. B. The First Amendment Privilege Can Be Overcome In Only The Most Limited Of Circumstances Recognizing the threat that compulsory disclosure of work product posed to the uninhibited flow of information, the Ninth Circuit adopted a three-part test that courts must apply whenever a journalist withholds unpublished information that was not gained under a promise of confidentiality. The test's purpose, the court explained, was to "ensure that compelled disclosure is the exception, not the rule." Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995) ("Shoen II"). We . . . hold that where information sought is not confidential, a civil litigant is entitled to requested discovery notwithstanding a valid assertion of the journalist's privilege by a nonparty only upon a showing that the requested material is: (1) unavailable despite exhaustion of all reasonable alternative sources; (2) noncumulative; and (3) clearly relevant to an important issue in the case. We note that there must be a showing of actual relevance; a showing of potential relevance will not suffice. Id. Although the Ninth Circuit has not had the opportunity to apply the three-part test of Shoen II in a criminal case, the Third Circuit has adopted a nearly identical test and applied it to a criminal subpoena that sought unpublished, nonconfidential information: "First, the movant must demonstrate that he has made an effort to obtain the information from other sources. Second, he must demonstrate that the only access to the information sought is through the journalist and her sources. Finally, the movant must persuade the Court that the information sought is crucial to the claim." United States v. Cuthbertson, 651 F.2d 189, 195-96 (3d Cir.) ("Cuthbertson II") (quoting United States v. Criden, 633 F.2d 346, 358-59 (3d Cir. 1980), cert. denied, 449 U.S. 113 (1981)), cert. denied, 454 U.S. 1056 (1981). Application of the First Amendment privilege in a criminal proceeding is just as important as in a civil context. As the Second Circuit held in United States v. Burke, 700 F.2d 70, 76 (2d Cir.), cert. denied, 464 U.S. 816 (1983): "[T]he important social interests in the free flow of information that are protected by the reporter's qualified privilege are particularly compelling in criminal cases. Reporters are to be encouraged to investigate and expose, free from unnecessary government intrusion, evidence of criminal wrongdoing." C. The Privilege Protects Unpublished Information In McCullagh's Possession, And Cannot Be Overcome By Bell If Bell attempts to cross-examine McCullagh regarding unpublished information, he cannot satisfy any of the Shoen requirements, let alone all three of them. Only by meeting all of the requirements can Bell establish the kind of "compelling need" that overcomes the First Amendment privilege. Shoen I, 5 F.3d at 1196. First , Bell cannot establish that he exhausted all alternative sources for the information he might hope to obtain from McCullagh. Testimony about Bell's conversations with McCullagh can be provided by Bell himself. See, e.g., Shoen I, 5 F.3d at 1296 (refusing to order author to produce notes of interview with party because the party was an alternative source for the information); Carushka, Inc. v. Premiere Products, Inc., 1989 U.S. Dist. Lexis 17487, *8, 17 Media L. Rep. 2001 (C.D. Cal 1989) (refusing to order magazine publisher to produce unpublished materials; "as the information sought was either provided by or adopted by plaintiff, defendants may elicit the relevant testimony from plaintiff herself"). Even assuming that testimony by McCullagh about his conversations with people other than Bell is admissible, that information is available from the other participants in the conversations. For example, if Bell contends that McCullagh obtained information from federal agents, Bell can obtain that testimony from the federal agents. Indeed, it is difficult to fathom what information McCullagh might have gathered that is even remotely relevant to this trial that is not readily available from other witnesses who will be called by the government or who are subject to subpoena by the defense. See Cuthbertson II, 651 F.2d at 196 (privilege does not yield unless "the only practical access to the information sought is through the media source). Bell's inability to meet this requirement of exhaustion, on its own, dooms any effort to pierce the First Amendment privilege. See Shoen I, 5 F.3d at 1296 ("At a minimum, [the requesting party must make] a showing that the information sought is not obtainable from another resource."); accord Carey v. Hume, 492 F.2d 631, 639 (D.C. Cir. 1974) (compelled disclosure from a journalist must be a "last resort after pursuit of other opportunities has failed"), cert. dismissed, 417 U.S. 938 (1974). Second , the information that Bell might seek from McCullagh is cumulative. Bell will have the opportunity to cross-examine the government's witnesses, and to call his own witnesses, in an effort to establish that he was unfairly targeted by the government or the victim of a conspiracy. Simply put, whatever Bell told McCullagh, and whatever information McCullagh gathered as a result of Bell's statements to McCullagh, is evidence that Bell will present through other witnesses, including himself if he takes the stand. Any intrusion on McCullagh's newsgathering and Wired News' editorial decisions is unjustified, given the cumulative nature of the evidence Bell is likely to seek from McCullagh. See, e.g., United States v. Hubbard, 493 F. Supp. 202, 205 (D.D.C. 1979) (quashing subpoena by criminal defendant on ground that other witnesses were available for same facts, making reporters' testimony "merely cumulative"). Third , the unpublished information Bell is likely to attempt to elicit on cross-examination is not clearly and actually relevant to an important issue of the case. As the Second Circuit explained in Burke, unless a criminal defendant who seeks to pierce the privilege can make a "clear and specific showing" that the evidence is "necessary or critical to the maintenance of his defense," the reporter's privilege will be upheld. Burke, 700 F.2d at 77. Bell's unpublished communications with McCullagh do not go directly to the issue of whether he engaged in interstate stalking of federal agents. Communications between McCullagh and others relating to Bell's case would be inadmissible hearsay, or, if they involve federal agents, would be merely impeachment evidence, which is not evidence that is considered "critical or necessary to the maintenance or defense of a claim." See In Re Application to Quash Subpoena, 79 F.3d 346, 352 (2d Cir. 1996). And McCullagh's actions (any research he might have done) are completely irrelevant. Indeed, communications with reporters, and what reporters might have done with that information, will undoubtedly confuse the issues, delay the proceedings, and waste time. See Fed. R. Evid. 403; see also National Union Fire Ins. Co. v. Seafirst Corp., 1987 U.S. Dist. Lexis 16094, *4-5, 14 Media L. Rep. 1190 (W.D. Wash. 1987) (quashing subpoena seeking unpublished information because communications between defendant and reporters were only "marginally relevant at best," even though contents of article were important to case). Further, to allow the privilege to be invaded here would set a terrible precedent. To allow a defendant to cross-examine a reporter about privileged matters simply because the government has asked a reporter about non-privileged matters would eviscerate the privilege. Every time the subject matter of a news article became the subject matter of a trial, newsgathering activities would become fair game for the litigants. It is this very concern - that journalists will be routinely subjected to subpoenas - that caused the Ninth Circuit to hold that "compelled disclosure is the exception, not the rule." Shoen II, 48 F.3d at 416. 5. CONCLUSION In extending the journalist's privilege to unpublished information, the Ninth Circuit explicitly recognized "that routine court-compelled disclosure of research materials poses a serious threat to the vitality of the newsgathering process." Shoen II, 48 F.3d at 415-16. Accordingly, reporter Declan McCullagh requests that the Court quash the subpoena, or, alternatively, enter a protective order that prohibits counsel from inquiring into any matters other than the published contents of the articles. DATED: March 29, 2001. PETER SULLIVAN TIMOTHY L. ALGER GIBSON, DUNN & CRUTCHER LLP KELLY PATRICK CORR CORR CRONIN LLP By: ________________________________ Kelly Patrick Corr Attorneys for non-party witness DECLAN McCULLAGH ### ------------------------------------------------------------------------- POLITECH -- Declan McCullagh's politics and technology mailing list You may redistribute this message freely if it remains intact. To subscribe, visit http://www.politechbot.com/info/subscribe.html This message is archived at http://www.politechbot.com/ ------------------------------------------------------------------------- ----- End forwarded message -----