William Ketter
MANKATO — Who can blame Dan Nienaber if he’s befuddled over the role of the journalist in today’s high-risk newsgathering climate?
Nienaber thought he was doing what any good police reporter would do when he recently telephoned two criminal suspects, one accidentally, to gather first-hand details for stories about their cases.
Then he got hit with separate subpoenas demanding he turn over his notes and tell prosecutors what he learned in those phone conversations but didn’t publish, or face the possibility of going to jail. In both cases, the subjects were identified. No anonymous sources.
Nienaber, supported by his newspaper, The Free Press of Mankato, Minn., refused to comply with the out-of-the-blue requests, leading to an odd hearing Feb. 2 before District Court Judge Norbert P. Smith.
And that’s when the real confusion set in.
After brief arguments on Feb. 2, Judge Smith last week dismissed the county attorney’s petition for Nienaber’s testimony about a cell phone conversation with a suspect in a robbery case. The reporter got the phone number from a court document and called it. He reported the conversation in his story. Police eventually arrested the suspect and yet prosecutors insisted on grilling Nienaber and seeing his notes.
The judge logically deduced that since the suspect was in custody, there was no need to come down on the reporter. Information sought for prosecution, the judge ruled, could be obtained by alternative means.
But in an unrelated case brought up at the same hasty hearing, the judge eventually ordered Nienaber to relinquish his notes and testify about an inadvertent phone conversation he had with the gunman during a seven-hour police standoff over a domestic dispute in the small town of Amboy, Minn., on Dec. 23.
The gunman, Jeffrey Alan Skjervold, ended the stalemate by taking his own life, but not before he had exchanged shots with police, wounding two officers.
Nienaber began randomly calling neighbors about midway through the standoff when authorities refused to say what was going on despite the heavy police presence at the scene, and inquiries from the public were flooding the newsroom. To the reporter's surprise, Skjervold answered one of his calls, proceeded to describe the shootout, then hung up after a minute or two — all of which was duly reported on The Free Press’ Web site and in the next day’s paper.
Everybody agreed at the court hearing that the perpetrator of the crime had died at the scene by his own hand, and that no one else was the focus of a police investigation.
Still, the county attorney’s office said it wanted to review Nienaber’s notes and interview him about the conversation with the gunman because it believed the reporter had withheld from publication some comments made in the call. Prosecutors were also angry at the newspaper for pursuing the story while a crime was in progress. The subpoena also named fellow reporter Nick Hanson, who helped cover the story, and editor Joe Spear.
Prosecutors refused to say why they wanted to see the unpublished material, and what they intended to do with it. Or what they expected to learn from The Free Press reporters and editor. They just wanted their notes and their testimony, period.
The Free Press naturally considered this an attempt to intimidate both the reporters and the paper, and rejected the request again, citing the Minnesota Shield Law and its intent to protect journalists from just such overreaching prosecutors.
That argument was strongly rebuffed by Judge Smith. He said the shield law didn’t apply in this case because Minnesota lawmakers had amended it eight years ago to broaden the types of cases in which the courts could require journalists to disclose information and sources.
Previously, the judge said, the law “required that the information be clearly relevant to a specific violation of the law. If that were still the language of the statute, then the argument of the Free Press would have greater weight.”
But the change, he said, required journalists to testify against their will whenever there was probable cause to believe the unpublished information or anonymous sources were clearly relevant to a criminal investigation.
In other words, Judge Smith ruled that prosecutors in Minnesota are allowed to go on a fishing expedition with the press, a practice shield laws are specifically supposed to prevent.
In this instance, the judge let the unsupported argument of the prosecutors and his obvious dislike for aggressive news reporting skew his logic. His written opinion suggested the reporter and his newspaper undermined the efforts of police negotiators by inadvertently connecting with the gunman, and may even have contributed to his suicide.
Judge Smith offered no evidence to support those outrageous accusations, except for a state investigator’s statement that the gunman was upset by the call from reporter Nienaber — a call that occurred several hours before the gunman shot himself.
“Freedom of the press is not quite as sacrosanct or absolute as The Free Press would like it to be,” said the judge. “The right claimed by The Free Press to seek the ‘truth’ must never be allowed to take precedent over the compelling and overriding interest of law enforcement authority to maintain human life.”
This conclusion by a state judge in Minnesota is unjustified, among other reasons because it infers the police are always right and that the press has a limited role in trying to independently inform the public about criminal activity without fear of being hauled into court.
Judge Smith’s opinion shows little respect for journalists as the people’s surrogate in our form of democracy. Thus The Free Press and its corporate parent, Community Newspaper Holdings Inc., intend to fight his finding to the hilt.
William B. Ketter is vice president for news for Community Newspaper Holdings Inc., a Birmingham, Ala.-based group that owns and operates 94 daily newspapers in 24 states.
