The news department of Vermont television station WCAX is fighting a subpoena from prosecutors in Chittenden County, arguing that a demand for unaired footage from an interview with a suspect violates the state’s media shield law.
Signed by Gov. Phil Scott in 2017, the shield law protects journalists from being forced to testify in court, reveal confidential sources or provide the government with material they gather during the reporting process.
The new law appears to have been tested in court only once before, in 2018, when WCAX was subpoenaed by the Washington County State’s Attorney’s Office for footage related to a police shooting. In that case, a judge sided with the station, and quashed the subpoena.
On Dec. 22, the Chittenden County State’s Attorney’s Office told WCAX to turn over materials related to an interview it conducted with William Dunn, who is accused of stabbing a man multiple times in Burlington on Dec. 2. Dunn, charged with aggravated assault, faces up to 15 years in prison.
In the interview, part of which was in a report WCAX posted online on Dec. 10, Dunn said he felt threatened and had to “fight for [his] life” in the altercation with Najee McDowell, his fiancee’s ex-boyfriend.
Prosecutors told the station to provide “any and all footage, including raw and final as well as all videos, notes, sound bites and information obtained from the interview,” and “any and all saved messages or other communication records pertaining to Dunn,” according to the station’s motion to quash the subpoena.
In documents filed earlier this week, WCAX’s attorneys said the subpoena is “precisely the kind of fishing expedition and unnecessary intrusion into the newsgathering process that the shield law prohibits.”
In an interview, Jay Barton, WCAX general manager, said there needs to be a “hedge of separation” between journalists and the state. The latter’s job is to “investigate and solve crimes and potentially execute justice,” he said.
“If ever time you report a story you’re really at risk that law enforcement can just choose to come and take all of your notes because that helps them make a case against another citizen, well, at some level we’ve suddenly become members of law enforcement, which we are not,” Barton said.
“That’s what the journalism shield law, in many ways, is speaking to,” he said.
Chittenden County State’s Attorney Sarah George did not respond to multiple requests for comment on Friday.
The shield law provides an exception for prosecutors when the information collected by journalists doesn’t come from a confidential source. But investigators still have to show that the information is “highly material” to the case, unavailable elsewhere, and there is a “compelling need” for it. WCAX argues that prosecutors haven’t met those criteria.
In the motion, WCAX contends that the information sought by prosecutors — Dunn’s account of events — is “available from many witnesses, including Dunn himself, who has already told law enforcement he acted in self-defense.”
The station notes that its footage does not capture “the altercation at issue” and was taken a week after it happened.
“This is not a case where a criminal is at large, and there is no imminent public threat,” the motion states. “There is no reason why law enforcement cannot pursue the appropriate investigative channels and, at the same time, respect the strong statutory protections provided by the shield law.”
In the 2018 order that quashed the subpoena in Vermont’s first shield law case, Washington County Superior Court Judge Howard VanBenthuysen wrote that the new statute establishes “nearly insurmountable” standards for state investigators seeking information from journalists.
The order had been sealed from public view until 2019, when the Vermont Supreme Court sided with WCAX in another case, overturning a decision that kept it secret.
Matt Byrne, a Vermont attorney who, with a coalition of news organizations, advocated for the 2017 shield law, said the policy aims to prevent a journalist from becoming “a private investigator for the government.”
His firm, Gravel and Shea, is representing WCAX in its recent proceedings, though Byrne isn’t involved in the case.
“We want the press to be independent, and with that independence, to keep an eye on government,” Byrne said.
“And anything that gives the government coercive power over the press threatens to weaken the independence of the press,” he said.
Disclosure: VTDigger was part of the coalition of news organizations that lobbied for Vermont’s media shield law in 2017.
Read the story on VTDigger here: WCAX fights subpoena for interview footage, citing media shield law.