What looked to be shaping up as a legal fight to protect news gatherers’ rights and prevent research for a story from becoming part of a prosecutor’s investigation under Tennessee’s media shield law appears to have fallen flat.
On March 10, A&E Television Networks requested the dismissal of a subpoena of raw video footage of an interview with Jonathan Gutierrez, a member of Nashville’s Brown Pride gang, in which the local district attorney’s office believed he discussed details of the August 2007 shooting death of rival gang member Lucio Garcia.
During the interview, parts of which appeared in an August 2009 airing of the History Channel’s Gangland program titled “Hunt and Kill,” Gutierrez said, “[They] just started disrespecting us, saying all kinds of stuff. Everything happened so quick. Did what we had to do. So things happen.”
On March 30, Davidson County Criminal Court Judge Cheryl Blackburn upheld the prosecution’s subpoena of the raw footage, saying it met the shield law’s “three-prong test” requiring there to be probable cause, no other way to obtain the information, and a compelling and overriding public interest in what is being subpoenaed.
Attorneys for A&E appealed the ruling to the state Court of Appeals in April.
But on July 9, before the appellate court could rule on the appeal, A&E attorneys and the state attorney general’s office filed a joint motion to dismiss the appeal. The court then issued its own dismissal, sweeping the legs out from under a fight about reporters’ protection, perhaps to save the fight for a different battle.
Attorneys Heather Hubbard and Robb Harvey of Waller Lansden Dortch & Davis, who took up the fight locally for the national network, declined to comment on the dismissal of the appeal, choosing to let the court filing “speak for itself.”
The crux of it says that because the network first attempted to withhold the raw footage — claiming newspersons’ privilege — it “made a journalistic and editorial decision” that the interview with Gutierrez had “become newsworthy” because of his pending murder trial, as well as the proceedings involving the media shield law. The network, therefore, decided it wouldn’t assert the newspersons’ privileges.
The History Channel posted the entire “Hunt and Kill” interview with Gutierrez on its website, History.com, along with a statement asserting that while it disagrees with Blackburn’s decision to uphold the subpoena and is committed to supporting reporters’ protections under the law, “We balance that commitment against our commitment to provide you, our viewers, with material which we deem to be newsworthy.”
The network’s statement adds later, “We believe that this case has become part of that national discussion about the reporter’s privilege, and have made a determination that the interview of Jonathan Gutierrez has become newsworthy.”