Legal battle ensued after Mt. Graham subpoena

A handful of young journalists got a lesson in First Amendment rights and the freedom of the press in the fall of 1992.

But it wasn't in the classroom with textbooks and abstract theories. It was a real-life lesson on how the ideals of the press collide with real-life demands.

The University of Arizona Police Department subpoenaed the Arizona Daily Wildcat's photographs taken during a Mount Graham protest at the Steward Observatory on Oct. 12, 1992.

About 200 people protested at the observatory, claiming the construction of telescopes violated the sacred site of the San Carlos Apaches and was a danger to the red squirrel.

Wildcat staffers believed they could not buckle under when no other news agency in Tucson was asked to surrender evidence.

The Wildcat was being singled out because it was the least likely to refuse the request or be able to afford legal counsel, says Clyde Lowery, former director of student publications.

"There seemed to be a trend in the early 1990s that worried many journalists. They felt county attorneys, lawyers and police departments were using the press to gather information," says Philip R. Higdon, an attorney with Brown and Bain, which handled the case for the Wildcat.

Cmdr. Brian A Seastone, of the University of Arizona Police, says, "There were a lot of individuals who where involved in the protests that we felt were involved in a number of illegal activities, such as trespassing, and there were assaults made on the officers. We felt the photographs were going to help us identify those individuals."

Wildcat Editor in Chief Beth Silver, now a political reporter with the News Tribune in Tacoma, Wash., says she believes the police targeted the Wildcat because it is a student publication.

Silver says she was unwilling to participate in the police's investigation and the Wildcat would not be an arm of the police department.

James Mitchell, an attorney and adjunct journalism professor who teaches media law, says, "We can't allow the police to go on a fishing trip. To have the press do their dirty work investigating the case is not good. The media have no problem in handing over material that has been published or aired. But due to confidentiality of our sources, the press can't turn over the outtakes or extra photographs."

Higdon says in the case of the Wildcat photographs and other situations, the police could use the subpoena to move to the next level and ask for the reporter's notes. The subpoena for the photographs could be used as opening shot for the police to go after something else, he says.

Silver says the subpoena would have had a chilling effect on the newspaper and sources would be unwilling to talk with reporters.

The issue was resolved when the Pima County Attorney's Office backed down from its subpoena request requiring the Wildcat to give all the photographs of the protest to the police. The Wildcat gave the police department the photograph that appeared on the front page of the Oct. 13, 1992 issue.

Lowery says, "The public's right to know is more important than the university's right to prosecute the people they were accusing of wrongdoing. It appeared to us that the subpoena was a clear case of the university police trying to dampen the Wildcat's enthusiasm for covering stories not popular with the department or the administration."