Federal judge upholds reporter's privilege in medical marijuana case

A federal judge quashed a criminal defense lawyer’s subpoena of a reporter last month, ruling that it violated the reporter’s constitutional right not to testify and publicly recognizing the importance of the newsgathering process.

Reporter Jace Larson of Denver's KUSA-TV was subpoenaed by the attorney for a criminal defendant, Chris Bartkowicz, in the U.S. District Court in Denver. Bartkowicz's attorney issued the subpoena to have the reporter testify about a news report Larson aired about Bartkowicz, a medical marijuana grower in the suburban community of Highlands Ranch, about 20 miles south of Denver. Bartkowicz was arrested by U.S. Drug Enforcement Administration officials after the report aired on KUSA.

Andrew Low, Larson's attorney, filed a motion to quash the subpoena on the grounds that Larson did not possess any information that was not already publicly available and that Bartkowicz did not have cause to override the reporter’s privilege.

In ruling from the bench during a pre-trial hearing on Sept. 17, Judge Philip A. Brimmer quashed the subpoena, concluding that it obstructed Larson’s ability to gather news and, on balance, violated his First Amendment-based right not to testify.

“If a person such as Mr. Larson could be subpoenaed into court … to testify about [his news report] without a proper balancing being applied, his ability to gather news would be interfered [with],” Brimmer said.

Brimmer ruled based on prior court precedent that in order to overcome the reporter’s privilege, the person issuing the subpoena must demonstrate that witness testimony is “centrally relevant” and that the information cannot be obtained from other sources. “Mr. Bartkowicz fails on both of those prongs,” the judge said.

In issuing the subpoena, Bartkowicz's counsel was seeking to use the defense of “selective prosecution,” arguing that the defendant was “singled out” by the DEA for prosecution based on comments he made during the interview and that this violated his First Amendment right to free expression, according to court documents.

The defense counsel sought to examine Larson on the stand about conversations he had with Bartkowicz that were not broadcast on KUSA, arguing that Larson’s testimony would demonstrate that Bartkowicz was exercising his free speech rights through comments he made during these interviews, according to Low.

Low argued in the hearing that the conversations were not relevant to the selective prosecution defense because the DEA agents made their arrest based on what they saw on KUSA and that the defense of selective prosecution was based entirely on what the DEA had seen on the air.

“Since the DEA was unaware of what Bartkowicz had said to Mr. Larson, it couldn’t have formed part of the basis of the claim of selective prosecution. The DEA couldn’t have been targeting his right to free speech, because those arguments were made off camera,” he said.

Brimmer agreed with Low, ruling that the selective prosecution defense did not justify issuing the subpoena. He said that if the defense wished to present evidence from the unaired conversations, then Bartkowicz could take the stand himself to discuss the issue.

Because federal judges do not often advocate so strongly for the reporter’s privilege, Brimmer’s ruling is a significant stride forward for American journalists, Low said.

“I think the significance is that it is a federal court continuing to recognize and apply the reporter’s privilege,” he said, adding that while there are plenty of state court decisions upholding the privilege, there is no such statute in federal court. “So we depend on federal judges recognizing the common law privilege,” he said.

Low also said that although this case ended up favorable for the media, it still could highlight the need for a federal shield law protecting journalists from court subpoenas.

“Even though it turned out the right way, there was still some expense involved in filing a motion to quash. If a federal shield law was in place, there wouldn’t have been a subpoena in the first place,” he said.

Although state legislative statutes exist in Colorado allowing for the production and sale of marijuana for medical purposes, federal law does not recognize these statutes and thus still treats distribution of marijuana as a federal crime, which ultimately makes the DEA the final enforcement authority on the issue, according to Low.

While DEA agents normally don’t pursue arrests of known pot growers in Colorado, Bartkowicz’s decision to boldly proclaim his involvement in marijuana growing couldn’t be overlooked, Low said.

“They felt that if someone was going to rub it in their faces, they had no choice but to prosecute,” he said.

According to a report by the Huffington Post, Bartkowicz’s initial defense was that he shouldn’t face federal drug charges, because U.S. Department of Justice memos released under the Obama administration indicate that the U.S. government would not pursue arrests of marijuana growers in states that allow the drug for medicinal purposes. This argument was rejected by Brimmer, who stated that DOJ memos do not override federal laws that make marijuana illegal, according to the report.

At the same hearing at which he quashed Larson's subpoena, Brimmer also rejected the defendant's selective prosecution defense. The judge ruled that there was no evidence to suggest that Bartkowicz’s arrest was "'motivated by a desire to discourage expression protected by the First Amendment,’ nor is there an indication . . . that he was being prosecuted or targeted for some purpose other than to enforce federal drug laws.”