Andrea Roth, a University of California, Berkeley law professor, published a law review article about the large DNA database built by the Orange County District Attorney’s Office. The article describes how the District Attorney’s office has expanded the database by offering misdemeanor defendants a plea deal or dismissal of charges in exchange for DNA samples that law enforcement could not otherwise obtain. To report the article, Roth interviewed judges, prosecutors, public defenders and others connected with the program, with some interviews based on promises of confidentiality.
Two professors at the University of California, Irvine brought a lawsuit against the District Attorney’s office arguing that the DNA collection program is unconstitutional. County counsel subpoenaed Roth for the names of the individuals she interviewed, along with all notes from those interviews, unpublished drafts of the article, and more.
In support of Roth’s opposition to the District Attorney’s motion to compel, FAC filed an amicus letter arguing that as a contributor to the law review, which is published six times annually, Roth is protected by the reporter shield law in the same way as a freelance reporter. In the alternative, the letter argues that Roth is protected by the First Amendment journalist’s privilege in the same way as any published author. Although Roth has supported the lawsuit, for example by joining an amicus brief in the Court of Appeal, the letter argues that advocating a viewpoint does not deprive an author of protection under the shield law or First Amendment as long as the author retains editorial and financial independence.
The letter was joined by the Reporters Committee for Freedom of the Press and Christina Koningisor, a law professor at U.C. School of Law, San Francisco and former newsroom lawyer at the New York Times.