FREE PRESS — A military judge has ordered a news reporter to obey a subpoena and
testify in the case of a Camp Pendleton Marine who is facing a
court-martial for an interview he gave over the handling of classified
material, reports Greg Moran for the San Diego Union-Tribune.

In a 12-page ruling released Monday, Cmdr. Kevin O'Neil said the
rights of the accused, Pvt. Gary Maziarz, to a fair trial outweigh the
First Amendment rights claimed by Rick Rogers, a reporter for The San Diego Union-Tribune.

Maziarz is facing a charge of willfully disobeying a direct order.
Prosecutors say he was under orders not to discuss his role in a ring
of Marines who passed top-secret intelligence files on individuals
under surveillance to a Los Angeles civilian law enforcement agency.

In 2007, Maziarz pleaded guilty to mishandling classified
material and theft of government property and was released from the
brig last July. Afterward, Rogers interviewed him for a story that was
published in November 2008.

In a subsequent story, Maziarz said he had not been
ordered to stay away from the news media and that his lawyer then,
appointed by the military, approved his speaking with the newspaper.

Maziarz's new lawyer says Rogers' testimony about his
conversations with Maziarz seeking the interview is needed to rebut the
charge that he “willfully” disobeyed the order.

California law, which does not bind a military court but which could provide an argument supporting the subpoena under these circumstances, holds that even a strong journalist's shield law like that of this state may be trumped where the subpoenaed information

  • is sought by the defendant in a criminal trial; and
  • is not available from another source (or from one as neutral as the journalist); and
  • is important as evidence for the defendant's case; and
  • would not disclose a confidential source; and
  • where its compelled disclosure would not make the journalist's job more difficult in the future.

The rationale: the defendant's federal Sixth Amendment right to a fair trial—and "every man's evidence"—supersedes a state constitutional right like California's shield law for journalists.