Ramsey County Sheriff Bob Fletcher says St. Paul police officials improperly obtained the cell phone records of Fox-9 news reporter Tom Lyden as part of an investigation that involved a sheriff’s department employee.
The case is a big media deal because Minnesota’s shield law protects reporters and their sources; news organizations have the right to challenge any law enforcement request in court. However, the St. Paul police did an end run: they went after a third party — Lyden’s cell phone provider — with an “administrative subpoena” which does not need to be disclosed to the reporter or media organization.
“They have basically opened up my reporter’s notebook. They have basically looked at my notes, they have looked at sources, they have looked at people I have tried to protect,” Lyden told fellow investigative reporter Trish Van Pilsum for a Fox-9 story that aired Tuesday.
According to Fox, Lyden was looking into the criminal history of a woman involved in a Coon Rapids road rage incident in June. The woman was sitting in a car with the man who allegedly shot an undercover police officer.
Fox says police Public Information Officer Tom Walsh denied a request for the criminal history; the sheriff’s office gave Lyden the document, ruling it was public. (Walsh refused comment, citing an open investigation into the case.)
Fletcher, never known as a shrinking violet, got wind of the cops’ pursuit of Lyden and sheriff’s office director Steve Lydon, and whipped off a biting letter to St. Paul Police Chief John Harrington (see document). In it, Fletcher alleges St. Paul police:
· Submitted a “false affidavit” to get phone records.
· Opened a criminal investigation to “deflect” civil liability police feared due to the records’ release.
· Engaged in a conflict of interest by investigating his office as the aggrieved party, rather than referring the matter to a neutral third party.
· Pursued the inquiry in part because of animus between police commander David Korus and sheriff’s office director Steve Lydon, plus Walsh’s “distain” [sic] for Lyden.
Fletcher — who writes that he only learned of the information through a “confidential informant” — concludes by acidly telling Harrington, “Because of your character and integrity, I know you believe that investigating the phone contacts of the local media creates an unacceptable atmosphere of intimidation that is contrary to the principles of free expression, as articulated in the First Amendment, that we are sworn to protect.”
Of course, if those First Amendment protections fully protected the press, we wouldn’t need state shield laws. University of Minnesota professor Jane Kirtley, a media law expert, says Minnesota’s shield law “does not explicitly cover third party records, because the Minnesota shield law sets up barriers to keep law enforcement form subpoenaing the press.” She terms the police going after the cell phone provider “an end-run around what the shield law provides.”
Nationally, she says, “There are a whole bunch of court decisions in other jurisdictions about [what happens if] the journalistic record is in possession of a third party like a hotel, a car company, a phone carrier. Most [courts] said the information belongs to third party,” and is thus not subject to media protection.
Interestingly, she said a judge in Virginia, which does not have a shield law, ruled that going after reporters’ records in any location violates the First Amendment’s free-press protections.
Kirtley notes that what was done to Lyden is “historically pretty rare.” She terms the use of the administrative subpoena “more sinister because you never find out about them. If Qwest gets them and never notifies you, you’ll never know.”
With the feds struggling to craft their own shield law — a decades-long effort that’s never come to fruition — Minnesota may need to beef up its own statutes to close the loophole that threatens to choke any reporter using their trusty Razr. Kirtley says she’d “love” to see local judges accept the Virginia court’s ruling and extend state legal protections to third parties, “but judges are under constant pressure not to read anything into the statute.”
For now, the safest course is to use a landline — talk about a chilling effect — at least until St. Paul and state authorities get around to making the letter of the shield law reflect its spirit.