Receiving two subpoenas in one month, a local court has ordered the Daily Nexus editor in chief to appear in court this Friday or face charges of contempt.
Santa Barbara Deputy Public Defender Kathy Schwinghammer formally subpoenaed Daily Nexus Editor in Chief Nick Dürnhöfer on May 12 demanding that he turn over all unpublished photos of the Feb. 12 anti-war protest at UCSB. Schwinghammer maintained that the unpublished photos could assist her in defending her client Michael Howard Miller who was arrested at the event.
Dürnhöfer said he will fight the subpoena as he believes cooperating with the courts undermines the independence of the press.
“Naturally, as the head of a newspaper, I do not approve of journalists actively partaking in any side of the legal process,” Dürnhöfer said. “I truly believe it damages our ability to remain objective or, at the very least, appear objective to both our readers and those we interview.”
Adam Goldstein, Attorney Advocate for the Student Press Law Center, which is a national organization that advocates a free student press, helped Dürnhöfer find legal representation the first time the editor received a subpoena for a different case. He said he is also helping Dürnhöfer find representation in the new case as well.
“The quirky part is we just dealt with this,” Goldstein said. “A subpoena is just too big of a threat to press as a whole not to take on.”
In the past, Goldstein said court requests for a newspaper’s unpublished records were rare.
“Historically, we have had subpoenas once or twice a year, but we have had six in the last month, including the two from UCSB,” Goldstein said.
In mid-April, Dürnhöfer and Assistant County Editor Travis Miller were both subpoenaed by Santa Barbara Deputy Public Defender Deedrea Edgar.
Edgar said she sought to obtain additional interviews, notes and material Miller had relied upon when compiling a police blotter describing her client Brandahn Green’s arrest.
However, Robyn Aronson, an associate at Davis Wright Tremaine LLP represented Dürnhöfer and Miller and convinced Edgar to drop the subpoena.
“When [Dürnhöfer] was subpoenaed I called the public defender to see what she was looking for,” Aronson said. “All unpublished information is protected by the Shield Law and this was encompassed in that, so she was not entitled to it.”
According to the California Shield Law, a newspaper’s unpublished material is privileged information and protected from a subpoena unless a defense lawyer can successfully prove that the material is crucial to the defense, does not harm a journalist’s ability to gather news and that the information sought cannot be gathered elsewhere.
Edgar said she dropped the motion after realizing the Nexus article, published Feb. 5, did not offer any more evidence than she already had.
“I released the subpoena because the information came directly from the police report which I had access to already,” Edgar said.
The Nexus’ court summons comes on the heels of a number of subpoenas issued to Santa Barbara news outlets in the last year. The Santa Barbara News-Press, Independent and Daily Sound have all received subpoenas since 2007.
Goldstein said the outcome of the current subpoena issued to the Nexus will depend upon the court’s interpretation of the Shield Law.
“This will be a balancing act between the rights of journalists and rights of the defense, but it’s hard to prove journalists were the only ones present at the protest,” Goldstein said. “We know there were hundreds of witnesses and that the journalists were not the only ones with evidence out of the whole crowd.”
Despite four phone calls made to her office yesterday, as of press time, Schwinghammer has yet to respond for comment.