Freelance photojournalist protected by California shield law
CALIFORNIA — In mid-October, a Sacramento judge ruled that a photojournalist was protected by statutory and constitutional reporter’s privileges and would not have to produce slides he took of an accident scene.
Sacramento Superior & Municipal Court Judge Ronald Tochterman reversed his own tentative ruling issued the day before and held that privileges based on California law and the First Amendment were available to freelance news photographer Bruce de Lis.
In late August 1991 de Lis took 36 slides of a traffic accident in which the driver of a motorcycle was killed. After local newspapers declined to buy the slides, de Lis sent them to his agent in Rhode Island. In November 1993, de Lis sold a copy of the slides to the plaintiff in a lawsuit resulting from the accident.
In mid-September, the City of Sacramento, a defendant in the accident case, served de Lis with a subpoena to produce the slides. De Lis refused to produce the slides, asserting that he was protected by California’s shield law and the First Amendment. The city then asked the court to compel de Lis to produce the slides.
The court originally issued a tentative ruling ordering de Lis to produce the slides. The tentative ruling found that the state shield law did not apply to de Lis because he was not found in contempt of court, and the shield law only operates as an immunity from contempt.
However, the judge changed his ruling the next day, reasoning that although de Lis was not found in contempt, “it would be a waste of judicial resources not to reach the merits of the privilege.” The court ruled that de Lis was acting as a freelance journalist, and was therefore protected by the shield law. The judge also found that the qualified privilege under the First Amendment was available to de Lis.
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The court reasoned that the city did not overcome de Lis’ privilege because the city failed to demonstrate why the slides could not be obtained from the plaintiff through discovery, and because the slides sought went to the “heart of the claim.”
(Brown v. Barnes; Media Counsel: Matthew D. Roberts, Sacramento)