The cases against Sgt. Bowe Bergdahl, who is being prosecuted in a military court for deserting the Army, and Nasean Bonie, a former New York City building superintendent who was convicted of killing a tenant, “could set a dismal precedent for press freedoms by broadening the criteria under which prosecutors are allowed to obtain unpublished material gathered by journalists,” writes the New York Times in an editorial. In the Bergdahl case, a prosecutor said he intended to issue a subpoena for 25 hours of recorded phone conversations between Bergdahl and journalist Mark Boal.
The Bonie case represents a more imminent threat to freedom of the press. An appeals court backed a judge who ordered a reporter for News 12 the Bronx, a cable channel, to turn over unaired segments of an interview with Bonie. Unless that decision is overturned by the New York Court of Appeals, prosecutors will have greater authority to compel journalists to produce information gathered during the reporting process that was not published or broadcast. That would undercut New York’s shield law for journalists, and would have a chilling effect on news gathering, by routinely burdening journalists with subpoena requests. It could create the damaging perception that news organizations are an investigative arm of the criminal justice system, the Times says. The fact that Bonie was convicted without the interview outtakes shows that the material was not critical for prosecutors to make their case. Prosecutors have cited the rulings in the Bonie case to compel testimony or records from at least four other journalists or news organizations in recent months.