Douglas G. Harkin, District Judge
Department 4
Fourth Judicial District
Missoula County Courthouse
200 West Broadway Street
Missoula, MT 59802‑4292
(406) 523‑4774
MONTANA FOURTH JUDICIAL DISTRICT COURT, MISSOULA COUNTY
___ ___________________ ____ _ _______________________
LINDA TRACY, ) Department No. 4
) Cause No. DV‑00‑849
Plaintiff, )
) FINDINGS OF FACT,
vs. ) CONCLUSIONS OF LAW,
) AND ORDER
CITY OF MISSOULA, )
)
Defendant. )
This case came on regularly to be heard before this Court on the 7th day of March, 2001. Plaintiff, Linda Tracy [hereinafter, Tracy], appeared by and through her counsel, Frederick F. Sherwood, of Reynolds, Motl, and Sherwood, P.L.L.P., and Defendant, City of Missoula, appeared by and through its counsel, Gary L. Henricks, Deputy City Attorney. The purpose of the hearing was for the Court to hear evidence relating to Tracy's motion to dismiss the Investigative Subpoena Duces Tecum issued by this Court on October 6, 2000. From the oral and documentary evidence introduced by both parties, and the matter having been submitted for decision, the Court now makes the following findings of fact:
FINDINGS OF FACT
1. On July 29 and 30, 2000, Tracy videotaped events in downtown Missoula relating to the visit of the Hells Angels motorcycle gang to Missoula and the subsequent interactions between local citizens and law enforcement officers.
2. On the morning of October 11, 2000, Tracy was served with an Investigative Subpoena Duces Tecum. The subpoena directed Tracy to produce for inspection to the City of Missoula: "[A]ll unedited videotapes and video images including magnetic videotapes, photographs and film, however stored, taken of the mobs and arrests in downtown Missoula in the early morning and evening hours of July 29, 2000 and the early morning hours on July 30, 2000." Tracy has moved the Court to dismiss the Investigative Subpoena Duces Tecum"
3. Tracy is a senior at the School of Journalism at the University of Montana. Students at the University of Montana publish an independent newspaper, the Montana Kaimin, and they produce programs for radio and television stations. Tracy's interest has been in broadcast journalism and the production of documentaries. As part of the Radio-Television Department of the University of Montana, Tracy has participated in, and continues to participate in, producing programs such as Made in Montana and the Montana Journal.
4. On April 11, 2000, Tracy registered the assumed business name of "Turtle Majik Productions" with the Montana Secretary of State. The business of Turtle Majik Productions includes investigative reporting and the production of documentary videos for dissemination to the public. Tracy uses her own camera, computer, and other equipment for such purposes. Turtle Majik Productions had revenue of $400.00 in 2000.
5. Many other persons, including law enforcement officers, filmed or videotaped portions of the events that are under discussion in this matter.
6. Within a week of the events in question, Tracy produced and copyrighted a documentary entitled Missoula, Montana. Missoula, Montana was created from videotape footage shot by her or obtained from other sources, including CMCR, an organization described below. Tracy edited and titled this material in order to produce the documentary. Tracy gathered video footage of the events which she did not use in her documentary.
7. In cooperation with CMCR, Tracy gave a public showing of her documentary at the Crystal Theatre in Missoula on August 9, 2000. This showing was in connection with a community discussion of the events in question. CMCR paid Tracy $30.00 cash as reimbursement for her rental of the Crystal Theatre.
8. Shortly after its completion, Missoula, Montana was also broadcast on a local cable television station, MCAT, with Tracy's permission and approval. MCAT included this documentary as part of a call-in show.
9. Consistent with her intention when she was filming the everlts on July 29 and 30, 2000, Tracy sought to make this documentary available to the public. Copies of the video were available from the Crystal Theatre, the Mansfield Library at the University of Montana, CMCR, and for sale by Tracy.
10. Tracy received academic credit for her summer internship at the Journalism School for her work on Missoula, Montana and for her work on another unrelated viceo documentary.
11. Darrell Geist is the Executive Director of Cold Mountain, Cold Rivers, Inc., also known as CMCR.
12. CMCR is a Montana non-profit 501(c)(3) corporation as shown by its Articles of Incorporation and Certificate of Incorporation. '
13. Pursuant to Article III of its Articles of Incorporation, an integral part of CMCR's purpose is to inform the public about, and promote awareness of, environmental and human rights issues. To this end, CMCR has produced and distributed to the public fifteen video documentaries. CMCR also has a professional relationship with many news networks to which it has provided video footage such as CNN, ABC, CBS, NBC, BBC, and A&E.
14. CMCR videotaped portions of the events in Missoula that are the subject of the subpoena from the City of Missoula to Tracy in the above matter. CMCR did so with the intention of gathering news and disseminating the news to the public. To this end, CMCR provided copies of its videotape footage to Tracy, doing business as Turtle Majik Productions, so the footage could be included as part of her documentary Missoula, Montana. CMCR considered it was providing the material to another journalist, just as it provided the material to television stations KPAX and KECI, for editing and creation of a product to inform the public. CMCR also allowed Tracy to use some of its equipment for this purpose and provided digital videotapes to Tracy to record subsequent related events such as meetings of the Citizen Review Committee and news conferences.
15. On September 28, 2000, CMCR paid Tracy $200.00 in recognition of her work on Missoula, Montana.
16. CMCR objects to any forced disclosure by subpoena of the CMCR videotape footage.
17. Professor William Knowles is the Chairman of the Department of Radio-Television at the Journalism School of the University of Montana. Professor Knowles has been teaching television news, mass media, media management, and other related courses at the Universitv of Montana for fifteen years. Professor Knowles' experience also includes twenty-two years as a television news producer, writer, reporter, and executive. Twenty of those years were with the American Broadcasting Companies, Inc. (ABC).
18. Tracy has been, and is, a student of Professor Knowles. Through his Department, Tracy has had, and does have, connections with radio and television stations including KUFM and KBGA that are licensed to the University of Montana. Through the Department, Tracy has worked on the PBS program Montana Journal. Tracy helped produce a story on the 2000 election that was shown on KUFi~l-TV in Missoula, KUSM-TV in Bozeman, and statewide on AT&T Cable. Students of the RadioTelevision Department are also expected to work on internship programs. In the summer of 2000, Tracy did internship work with High Plains Films, a local production house for environmental videos. Tracy's project was the Rainbow Family Gathering. The Department awarded Tracy academic credit toward her internship for her production of the documentary Missoula, Montana.
19. Jerry Brown is Dean of the Journalism School at the University of Montana. He has been Dean of the University of Montana School of Journalism since 1999 and was the head of the Department of Journalism at Auburn University for seven years prior to becoming Dean at the University of Montana. Dean Brown has worked as a newspaper reporter, photographer, and editor, and he has taught English and Journalism at the university level for over thirty years.
20. Dean Brown introduced the documentary Missoula, Montana at a public showing on the University of Montana campus. Dean Brown did so because Missoula, Montana has news value.
21. Dean Brown is of the opinion that Tracy is protected by the Montana Media Confidentiality Act law because when Tracy documented the events she was connected to one of the groups described in the Montana Media Confidentiality Act and was a person gathering news. It is also Dean Brown's opinion that a person can be connected with news organizations for the purpose of gathering and disseminating news without being an employee of such organizations.
22. By virtue of her work prior to recording the video in question, her work with CMCR, and her work in her own business, Turtle Majik Proauctions, Tracy is connected with news agencies, news services, radio stations, and television stations as that language is used in the Montana Media Confidentiality Act.
23. CMCR is a "news agency" as that term is understood in the field of journalism and within the meaning of the Montana Media Confidentiality Act.
24. In producing and disseminating Missoula, Montana, Tracy has been connected with CMCR, televisions stations, Turtle Majik Productions, and the Journalism School for the purpose of gathering, writing, or disseminating news.
25. The information sought by the subpoena was gathered, edited, and disseminated in the course of business of the organizations described above.
26. The activities taped by Tracy and sought by the subpoena are "news" within the meaning of the Montana Media Confidentiality Act.
From the foregoing findings of fact, the Court makes the following conclusions of law:
CONCLUSIONS OF LAW
1. This Court has jurisdiction over this cause.
2. Tracy's request that the investigative subpoena be dismissed is properly brought pursuant to ¤46-4-303, M.C.A. and the Montana Media Confidentiality Act, ¤26-1-901, et seq., M.C.A.
3. The Montana Media Confidentiality Act, more commonly known as Montana's "shield law," provides an absolute privilege against the forced disclosure of information by those persons or organizations defined by ¤26-1-902(1), M.C.A.
Persons seeking the protection afforded by the Montana shield law are not required to prove that their work product meets any sort of content test, such as "fair" or "balanced," in order to receive protection for their product and sources. A content test is absent from the shield law, and this Court respectfully declines the invitation to: (1) assume a legislative role and insert new criteria into the Act, or (2) practice judicial activism by a tortured interpretation of the Act that would require the Court to decide if the person has produced a "responsible" work product.
5. Courts which have construed absolute shield laws generally attempt to ascertain the legislature's state of mind when it promulgated the shield law:
All of the decisions which have characterized the various shield statues as affording "blanket protection" have effected a "hands off" approach; that is, the courts defer dubiously to what they discern as the intent of the legislature. Jamerson v. Anderson Newspapers, 469 N.E.2d 1243, 1248 (Ind.App. 1 Dist. 1984).
6. The origin of the Montana Media Confidentiality Act was known as the Reporters' Confidence Act and was enacted in 1943. Over the ensuing years, each amendment to the Act strenythened and expanded the privileye of non-disclosure. This type of shield law affords absolute immunity to those who qualify for its protection. The legislative history of the Montana Media Confidentiality Act recommends that this Court take a broad view of the protection granted by the Act.
7. As noted by this Court in the order dated December 4, 2000, this Court's inquiry is whether Tracy may claim protection under the Montana Media Confidentiality Act. If so, a First Amendment balancing analysis is not needed because Tracy is afforded an absolute privilege from disclosure of any information obtained or prepared or the source of that information.
8. Although this Court heard evidence purporting to define who is a Òjournalist," the Montana Media Confidentiality Act does not use that term to describe persons who may claim protection under the Act.
9. At the time Tracy was gathering the video footage sought by the subpoena, she intended to sell or give the video footage to commercial or public news agencies, television stations, or community antenna television services. Her stated intention is supported by her work with her own business, Turtle Majik Productions, her prior record of similar activities with various news entities, and her subsequent actions in connection with showing and editing the footage. Tracy is the type of person who should be considered as "connected with" these entities. These facts afford her protection under the Act as both "connected with'' news entities and as a "person" who is gathering and editing news within the meaning of the Montana Media Confidentiality Act.
10. The Act applies to Tracy and grants her the right to refuse to disclose the information and material sought by the subpoenas.
11. This Court specifically makes no conclusion about whether Tracy is protected under the Montana Media Confidentiality Act solely by virtue of her status as a student at the University of Montana.
From the foregoing findings of fact and conclusions of law, the Court makes the following order:
ORDER
IT IS HEREBY ORDERED that the Investigative Subpoena Duces Tecum directed to Linda Tracy and Turtle Majik Productions dated October 6, 2000 and issued by this Court is hereby quashed and dismissed.
DATED this 9th day of March, 2001.
Douglas G. Harkin, District Judge
c: Frederick F. Sherwood
REYNOLDS, MOTL ana SHERWOOD, P. L.L.P.
Gary L. Henricks
DEPUTY CITY ATTORNEY
CITY OF MISSOULA
F i ndi ngs of Fact,
Conclusions of Law,
and Order