February/March 2012

Maryland Court Quashes Subpoena for TV Journalist's Testimony

Holland & Knight Newsletter
Cheryl A. Feeley

A Maryland trial court quashed a subpoena issued by the state Attorney General's Consumer Protection Division to a television journalist seeking testimony about his station's investigation of a locksmith's practices.

WMAR-TV, a Scripps Broadcasting station in Baltimore, had been following the state's consumer protection proceedings against Joseph M. Horton, who runs his business under the name "Around the Clock Locksmith." In August 2010, in a civil proceeding, the Attorney General's Office secured a preliminary injunction that required Horton to immediately cease and desist from allegedly fraudulent consumer practices.

As part of the reporting, a WMAR-TV producer locked his keys in the trunk of his car in a parking lot. The producer then made a call on his cell phone. The producer's side of the conversation, which the station recorded, included his repetition of the locksmith's telephone estimate of $150 for the service. The story then showed the locksmith arriving. The producer provided Horton with a credit card and identification, while the reporter's voiceover explained that Horton was attempting to charge $825 for the services. The reporter then emerged and questioned Horton about the variance between the telephone quote and the charge. Horton denied providing a different price over the phone, then he drove away from the scene.

Following the broadcast, dozens of people contacted the Attorney General's Office to report allegedly similar encounters with Horton. On the basis of those complaints, the Attorney General's Office brought a motion seeking to hold Horton in contempt. The Attorney General's Office asked for full restitution to Horton's customers and to have him jailed.

In the contempt proceedings, the Attorney General's Office subpoenaed WMAR-TV's producer, and in opposing the motion to quash, represented that the journalist would be asked: (1) what day he made the telephone call captured in the November 2010 video recording; (2) what telephone number he called; (3) whether the person who answered the telephone was a man or a woman and whether the person identified himself or herself; (4) what the person on the telephone said; and (5) to authenticate the video recording.

In moving to quash the subpoena, WMAR-TV asserted its rights under Maryland's Shield Law (Md. Code, Courts and Judicial Proceedings, § 9-112), Article 40 of the Maryland Declaration of Rights, and the First Amendment to the U.S. Constitution.

At the hearing on the motion to quash, held in Annapolis, counsel for WMAR-TV argued that the requested testimony would require the station to reveal source information, in contravention of the Maryland Shield Law. WMAR-TV also argued that the attorney general could not demonstrate by clear and convincing evidence (1) a high degree of relevance, (2) the lack of any alternative means to obtain the information, and (3) the compulsory disclosure will serve an overriding public interest.

WMAR-TV also argued that any potential testimony was irrelevant, as the journalist was not a "consumer" within the meaning of the statutes at issue, and thus his experiences could not be used as evidence at the contempt hearing. WMAR-TV also pointed out that the attorney general noted its office received at least 26 complaints about Horton's business practices from consumers, and that the court already had heard for itself the testimony of five of these consumers at the hearing before the motion to quash was argued. Finally, WMAR-TV explained that the public interest favors protecting WMAR-TV and from compelled testimony.

Circuit Court Judge Alison L. Asti quashed the subpoena. She said that she has followed the legislative history of the Maryland Shield Law and understands the importance of protecting the news media privilege. Judge Asti concluded that the case law in Maryland must be read more narrowly than the Attorney General's Office suggested and made clear that this was not one of the limited instances in which a journalist could be compelled to testify. The court also remained unconvinced that such information could not be obtained by alternative means, especially in light of the testimony from consumers at the hearing.

Later in the proceedings, Judge Asti denied the attorney general the relief it sought against the locksmith, on grounds that the state had not met its burden.

Holland & Knight represented Scripps Broadcasting station WMAR-TV in this matter.

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