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Michigan State
University

 

This is to certify that the

thesis entitled

REFUSAL T0 TESTIFY: AN EMPIRICAL STUDY
OF NEWSMAN'S PRIVILEGE CASES

presented by

DIANE R. KIGHTLINGER

has been accepted towards fulﬁllment
of the requirements for

MASTER OF ARTS degree in JOURNALISM

 

 

Major professor

Date2765/ 2/7/71“

O-7639 MS U is an Afﬁrmative Action/Equal Opportunity Institution

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TO AVOID FINES return on or before date due.

DATE DUE DATE DUE DATE DUE

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

MSU Is An Afﬁrmative Action/Equal Opportunity Institution

l- J‘
1

REFUSAL TO TESTIFY: AN EMPIRICAL STUDY
OF NEWSMAN’S PRIVILEGE CASES

By
Diane R. Kightlinger

\

A THESIS
Submitted to
Michigan State University
in partial fulﬁllment of the requirements
for the degree of

MASTER OF ARTS

School of Journalism

1989

 

 

 

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ABSTRACT

REFUSAL TO TESTIFY: AN EMPIRICAL STUDY
OF NEWSMAN’S PRIVILEGE CASES

By
Diane R. Kightlinger

Factors of signiﬁcance in newsman’s privilege cases were determined
using a content analysis of 331 cases from 1969 through 1988. Four hypotheses
were tested. First, it was found that print journalists were treated most
favorably by the courts in newsman’s privilege cases. Second, newsmen involved
in libel suits were required to testify in newsman’s privilege cases as often as
those subpoenaed in criminal proceedings. Third, work on a business story
resulted in the greatest number of subpoenas for newsmen’s testimony in civil
cases. Fourth, newsmen subpoenaed to testify in grand jury proceedings were
required to testify much more frequently than those subpoenaed by the defense
in criminal proceedings. It was also determined that a qualiﬁed newsman’s

privilege is being recognized in an increasing number of cases as the years pass.

 

 

 

 

 

Dedicated to
GREGORY THOMAS MASTERS
for our friendship

iii

 

 

 

 

 

ACKNOWLEDGMENTS

I was very fortunate to have the assistance of many people in completing
my thesis. I appreciate their help greatly! The following individuals deserve
special recognition:

Many thanks to Todd Simon for encouraging my interest in media law.
Todd has been an inspiration as a scholar, teacher, and colleague. I am deeply
grateful to him for serving as my thesis adviser. I hope the past few years are
the beginning of a long association.

I appreciate the efforts of Fred Fico and Steve Lacy, who served on my
thesis committee. Both made many suggestions that improved the ﬁnal work.
Special thanks to Fred for advising me on the thesis defense and to Steve for
helping me with the data analysis.

Mick Groszko proved himself a thoughtful and caring friend while I
completed my research. He provided the computer I used to write my thesis
and a peaceful environment in which to use it. I greatly appreciate his
encouragement and consideration during the many months of this work.

Cathie Cassara was a tremendous source of advice, having recently
completed a thesis herself. I am grateful to her for serving as a second coder
during the testing phases and for helping improve the coding sheets.

I appreciate the assistance of Gary Peterson, who solved the computer
problems that occasionally plagued me and halted progress on my work. Many
thanks to Gary for his patience with frantic phone calls late at night.

iv

 

 

 

 

 

v

I am grateful to my parents, Gerald and Margret Kightlinger, and sister,

Gloria, for their interest in my research. I also want to thank all my friends for
their support, especially Thomas Esch.

Finally, I must acknowledge my dog, Bay, who helped me keep the

research in perspective. He showed no interest in my thesis and probably

thought the work took up time that could have been better spent with him. I

appreciate his companionship and infectious enthusiasm for life.

 

 

 

 

 

TABLE OF CONTENTS

List of Tables ........................................... viii
Chapter I--Introduction ..................................... 1
Background ........................................ 1
Purpose ........................................... 2
Hypotheses ........................................ 3
Chapter II--History of J ournalist’s Privilege ....................... 11
From the Founding of the Republic to Branzburg v. Hayes ........ 11
Branzburg v. Hayes ................................... 14

The Aftermath ............. _ ......................... 19

Baker v. F&F Investment ........................... 19

Carey v. Hume .................................. 20

Silkwood v. Kerr-McGee Corp. ........................ 20

In re Farber ........................................ 21

Other Aspects ....................................... 23
Newsroom Searches ............................... 23

The J ournalist’s State of Mind ....................... 24

Chapter III--Review of Literature .............................. 32
Before Branzburg v. Hayes .............................. 32
Post-Branzburg—-The Early Years .......................... 35
Status of Conﬁdential Privilege in Libel Suits ................. 38
Post--Branzb urg--A Decade Later .......................... 40

 

 

 

vn
Empirical Data on the Use of Confidential Sources ............. 42
Empirical Data on Newsmen’s Privilege Cases ................. 43
Chapter IV «Method ....................................... 50
Research Sample .................................... 5O
Coding Categories .................................... 52
Reliability ......................................... 54
Validity ........................................... 56
Data Analysis ....................................... 59
Chapter V--Findings ....................................... 63
Chapter VI--Analysis ....................................... 89
Hypotheses ........................................ 89
Recognition of the Newsman’s Privilege in the Courts .......... 104
Bases for Claims and Decisions .......................... 105
Recommendation .................................... 108
Suggestions for Further Research ........................ 110
Appendix I—-Coding Sheet ................................... 116
Appendix II--Operational Deﬁnitions ........................... 122
Appendix III-Supplemental Tables ............................ 130
Appendix IV--List of Cases .................................. 164
Appendix V--State Shield Laws ............................... 188
Appendix VI--Data List .................................... 191

Bibliography ........................................... 201

 

 

 

 

LIST OF TABLES

Table 1--Intercoder Reliability ................................. 55
Table 2--Intracoder Reliability ................................ 56
Table 3nDistribution of Decisions by Jurisdiction of Court ............. 64
Table 4--Distribution of Cases by State .......................... 65
Table 5--Distribution of Cases by Year ........................... 67
Table 6--Distribution of Decisions by Case Type .................... 69

Table 7 «Distribution of Favorable and Unfavorable Decisions in

Criminal Cases by Reason for Subpoena .......................... 70
Table 8--Distribution of Decisions by Reason for Civil Suit with

Media a First Party ....................................... 72
Table 9--Distribution of Case Types by Subject Material That Resulted

in Subpoena ............................................. 75
Table 10a--Distribution of Decisions in Libel Cases Versus Type of
Non-Management Employment ................................ 78
Table 10b--Distribution of Decisions in Libel Cases Versus Type of

Management Employment ................................... 79
Table 10c--Distribution of Decisions in Libel Cases Versus Type of

Media Organization ........................................ 80
Table 11a--Distribution of Decisions by Type of Media Organization in

Cases Involving Print Journalists .............................. 81

 

 

 

1X

Table 11b--Distribution of Decisions by Type of Media Organization in

Cases Involving Photojournalists ............................... 82
Table 11c--Distribution of Decisions by Type of Media Organization in

Cases Involving Broadcast Journalists ........................... 84
Table 12a--Distribution of Favorable and Unfavorable Decisions by

Type of Media Organization in Cases Involving Publishers ............. 85
Table 12b—-Distribution of Favorable and Unfavorable Decisions by

Type of Media Organization in Cases Involving Editors ............... 86
Table 12c--Distribution of Favorable and Unfavorable Decisions by

Type of Media Organization in Cases Involving Television Managers

...................................................... 87
Table MILL-Distribution of Decisions by Reason for Defense

Subpoena in Criminal Case ................................. 130
Table AIII-2--Distribution of Decisions by Reason for Grand Jury

Subpoena ............................................. 131
Table AIII-3--Distribution of Decisions by Type of Media Involvement

in Civil Case ........................................... 132
Table AIII-4--Distribution of Decisions by Reason for Civil Suit with

Media a Third Party ...................................... 133
Table AIII-5--Distribution of Decisions by Type of Evidence Sought in

Subpoena ............................................. 134
Table AIII-6--Distribution of Decisions by Type of Material Subpoenaed
..................................................... 135
Table AIII-7--Distribution of Subpoenas by Employment Type .......... 136

Table AIII-8--Distribution of Subpoenas by Type of Media Organization

 

 

 

 

 

 

 

x
Table AIII—9a--Distribution of Decisions in Criminal Cases by Type of
Non-Management Employment ............................... 138
Table AIII-9b--Distribution of Decisions in Civil Cases by Type of Non-
Management Employment .................................. 139
Table AIII-lOa—-Distribution of Decisions in Criminal Cases by Type of
Management Employment .................................. 140
Table AIII-lOb--Distribution of Decisions in Civil Cases by Type of
Management Employment .................................. 141
Table AIII-lla—-Distribution of Decisions in Criminal Cases by Type of
Media Organization ....................................... 142
Table AIII-llb--Distribution of Decisions in Civil Cases by Type of
Media Organization . . . . . . . ................................ 143
Table AIII-12a--Distribution of Civil Case Types by Subject Matter that
Led to Subpoena with Media a First Party ....................... 144
Table AIII-12b--Distribution of Civil Case Types by Subject Matter that
Led to Subpoena with Media a Third Party ...................... 145
Table AIII-13a--Distribution of Decisions by Type of Case With No
Material Subpoenaed ...................................... 146
Table AIII-13b--Distribution of Decisions by Type of Case With Written
Documentation Subpoenaed ................................. 146
Table AIII-l3c--Distribution of Decisions by Type of Case With
Photographs Subpoenaed ................................... 147
Table AIII-13d--Distribution of Decisions by Type of Case With Audiotape
Subpoenaed ............................................ 147
Table AIII-13e--Distribution of Decisions by Type of Case With Videotape
Subpoenaed ............................................ 148

 

 

 

 

xi

Table AIII-14--Recognition of Newsman’s Privilege by the Courts by Year

..................................................... 149
Table AIII-15--Distribution of Decisions by Recognition of Newsman’s

Privilege .............................................. 151
Table AIII-16--Bases Claimed for Newsman’s Privilege by Year ......... 152
Table AIII-17--Distribution of Decisions by Basis for Newsman’s

Privilege Claim ......................................... 154
Table AIII-18--Bases for Court Decisions by Year .................. 155
Table AIII-19a--Distribution of Decisions in Criminal Cases by

Year ................................................. 157
Table AIII-19b--Distribution of Decisions in Civil Cases by Year ........ 159
Table AIII-19c--Distribution of Decisions by Year ................... 161

Table AIII-20--Distribution of Decisions by Basis For Decision .......... 163

 

 

 

 

CHAPTER I
INTRODUCTION

Background

The law has traditionally held that "the public has a right to every man’s
evidence. "1 Society is best served by requiring every individual to testify to
relevant facts to resolve issues being investigated or litigated.2 The Sixth
Amendment guarantee of compulsory process for the accused in criminal trials
provides an example of society’s adherence to the tradition of no evidentiary
privileges.3 Nevertheless, communications between certain persons are
recognized as privileged by the courts: husband and wife, physician and patient,
and clergy and penitent.‘

Many newsmen believe that conﬁdential communications between sources
and themselves should also be privileged. They claim that recognition of a
privilege to protect the identity of sources and the content of unpublished
written, recorded, and photographed material is necessary to ensure the ﬂow of
vital information to the public. Otherwise, the possibility of forced disclosure of
sources and release of materials will result in a "chill" on the newsgathering
process. The "chill" occurs when sources who would give information to
journalists refuse to do so because their identity or particular information may

not remain conﬁdential. The "chill" also occurs when newsmen do not publish

 

 

what they otherwise might because they fear reprisals in the form of subpoenas.‘

 

 

 

2

Members of the press therefore argue that for the public to receive vital
information, newsmen must be able to act without fear that they will be called
into court and compelled to testify. Yet many journalists are subpoenaed and
many courts refuse to recognize an unqualiﬁed privilege not to testify. The
options for journalists are either to break their promise of conﬁdentiality to the
source or to go to jail and pay a ﬁne.6
Purpose

The purpose of this research is to determine the signiﬁcance of several
factors that may have an effect on the outcome of newsman’s privilege cases:

the type of employment the subpoenaed individual pursues, the type of media

 

organization for which the individual works, the subject of the story that
resulted in the subpoena, and the type of material, if any, that was subpoenaed.
The factors considered here have not been studied by other researchers.
Emphasis in the literature has been placed on discussions of the appropriate
bases for a newsman’s privilege, analyses of statutes, and summaries of surveys
of newsmen and media organizations on the use of conﬁdential sources.

Also, until 1969, very few reported cases dealt with the issue of
newsman’s privilege. Only in the last twenty years have newsmen and media
organizations repeatedly been summoned to appear in court and refused to do so.
The body of cases available for this type of analysis was not sufﬁciently large.
Now, sixteen years have passed since Branzburg v. Hayes? and well-deﬁned
attitudes about the newsman’s privilege have evolved in many state and federal
courts. Cataloging the cases will allow a correlation between speciﬁc factors and
decisions in newsman’s privilege cases. Also, trends in the use of particular

bases for court decisions in newsman’s privilege cases will become obvious. _-

 

 

 

 

 

3

Also included in this study are some factors that have been considered by
other researchers: the court’s jurisdiction, whether the case is civil or criminal,
the reason the subpoena was issued, whether the media is a party to the case,
whether the evidence sought is a source, information, or both, and what the
legal bases are for the newsman’s privilege claim and for the court’s decision.

This study will provide a signiﬁcant contribution to mass communication
law literature because it will clarify the factors of importance to journalists when
they are involved in a newsman’s privilege case. It will provide a basis for
strategy for newsmen and their managers when contemplating the use of a
conﬁdential source in a story or when negotiating with attorneys before a
subpoena is issued.8 The study will also provide guidelines for attorneys who
defend newsmen and media organizations faced with subpoenas.
Hypotheses

This study is only the second to undertake the task of cataloging reporter
privilege cases.9 It is designed to have greater breadth and depth than the
previous study. The researcher therefore anticipated that much information of
interest to members of the media and the bar would be gathered. Although the
hypotheses listed below are designed to answer some pertinent questions and to
provide a direction for the research, they indicate only part of the information to
be gathered and analyzed. The extent of the information is discussed more fully
in Chapter IV.

1. Print journalists employed by newspapers are required to testify in
fewer cases than any other category of journalist.

Historically, print journalists working for newspapers and newspaper
organizations have received greater protection by legislatures and the courts

than other types of journalists. For example, legislatures that have enacted

 

 

 

 

 

 

4
shield laws have always afforded some protection for newspaper reporters, while
other types of journalists, including other print journalists, may not be protected
at all. 1°

Courts have also afforded greater protection and greater freedom to print
journalists than to other types of journalists. Although print journalists have
access to virtually all types of judicial proceedings,11 photographers and
cameramen do not.12 Also, courts have treated newspaper organizations more
favorably than broadcast organizations by ruling that the content of broadcast
media may be regulated more closely than the content of print media.13

It is therefore instructive to determine if print journalists working for
newspapers are favored when the issue of newsman’s privilege arises in a court
case.

2. Journalists and media organizations involved in libel suits are
required to disclose sources and information as often as those subpoenaed in
criminal proceedings.

Mehra found that reporters involved in civil cases to which they are a
party are required to testify almost as often as in criminal cases.“ Of 33 civil
cases in which the media was a party, testimony was required in 17 cases, or 52
percent." Of 22 civil cases in which the media was not a party, testimony was
required in seven cases, or 32 percent.16 Of 58 criminal cases not involving
grand jury proceedings, testimony was required in 34 cases, or 59 percent."

Thus, the recommendations of many legal and media scholars, who
suggest that disclosure should be required in civil cases only under exceptional
circumstances, appear to be going unheeded by the courts when the media is a
ﬁrst party. 1" Many courts appear to believe that under the current standards for
libel, either "actual malice" or "negligence" is very hard for a plaintiff to prove

 

 

 

 

 

 

 

 

 

5
without disclosure of the source of a reporter’s information.19 Journalists should
be warned that if they are to prevail in a libel suit, courts may demand that
they have carefully veriﬁed information received from conﬁdential sources and
that they have nonconﬁdential sources available to verify information that may
be libelous.

3. Stories about government or politics result in the greatest number of
subpoenas for testimony by members of the media in civil cases.

Blasi analyzed the distribution of reporters’ reliance on conﬁdential
sources according to reporting beat. Not surprisingly, he discovered that
government reporters relied more heavily on conﬁdential sources than did
reporters on any other beat.20 In an update of Blasi’s study, Osborn found that
when the individuals he surveyed used conﬁdential or background information,
58 percent of the stories involved government or politics.21 In contrast to other
groups with which there may not be an explicit agreement about what is on and -
off the record, politicians and government bureaucrats tend to be much more
explicit.22 If the number of subpoenas issued in civil cases reﬂects the heavy use
of conﬁdential sources in stories about government and politics, it may indicate
the need for greater care and persistence on the part of journalists assigned to
this beat.

4. Subpoenas by the defense in criminal proceedings result in a
requirement for testimony as often as in grand jury proceedings.

Subsequent to Branzburg v. H ayes ,23 a view developed that despite the
requirement for disclosure of sources and information in grand jury proceedings,

24 However, Mehra

the law was not clear for other types of criminal proceedings.
found that it was immaterial whether a reporter was required to testify in a

grand jury proceeding or in a criminal trial. Testimony was required in 56

 

 

 

 

6

percent of grand jury proceedings and in 59 percent of criminal trials.”5 Because
Mehra did not further subdivide the criminal trial category into subpoenas by
the defense and prosecution, it is not known whether the source of the subpoena
affects the requirement for testimony. Obviously, the Court in Branzburg v.
Hayes indicated that testimony may be required in grand jury proceedings, and
the guarantees of the Sixth Amendment to a defendant in a criminal proceeding
present a formidable challenge to those seeking a newsman’s privilege based on
the First Amendment.”

The effect of the source of a subpoena during criminal proceedings is of
great interest to those who frequently cover crime news and may ﬁnd themselves

subpoenaed for this reason.

 

7
Endnotes
1United States v. Bryan, 339 US. 325, 331 (1950).

28 J. Wigmore, Evidence in Trials & Common Law §2190, at 65 (McNaughton
Rev. 1961).

3See US. Const. amend. VI, which states, "In all criminal prosecutions, the
accused shall enjoy the right . . . to have compulsory process for obtaining
witnesses in his favor."

‘Wigmore suggested four conditions that should exist before a communication is
deemed privileged: 1) The communications are conﬁded with the prior
agreement that they will not be disclosed; 2) Conﬁdentiality must be necessary
to maintain a satisfactory relationship between the parties; 3) The public must
support a privilege for the relationship; and 4) The possible injury to the
relationship that would result from disclosure of conﬁdential communications
must outweigh the public beneﬁt achieved by disclosing the information.

J. Wigmore, supra note 2, §2285, at 527.

Wigmore was not in favor of creating a testimonial privilege for
journalists (or any other extension of testimonial privileges available at common
law) because he felt it had not been demonstrated "that the occasional
disclosure, in judicial proceedings, of the communication sought to be kept secret
would be injurious to the general exercise of the occupation, or that all the
conditions exist which justify a general privilege." J. Wigmore, supra note 2,
§2286, at 532.

l38ee, e.g., Schrag, The Sacramento Bee Censors Itself, 67 The Quill 26 (March
1979). The article concerns a story that the Sacramento Bee chose not to print
for fear the reporter might be required to divulge the identity of sources, to
whom he had promised conﬁdentiality.

6Newsmen usually prefer to accept imprisonment or a ﬁne rather than reveal
their conﬁdential sources. See, e.g., Blasi, The Newsman’s Privilege: An
Empirical Study, 70 Mich. L. Rev. 229, 276 (1971) (68.4% of survey respondents
said they would "be willing to go to jail to protect important source
relationships") [hereinafter cited as Blasi, The Newsman’s Privilege]; Murasky,
The Journalists’s Privilege: Branzburg and Its Aftermath, 52 Tex. L. Rev. 829,
858 n. 94 (1974) (one commentator found that of more than 100 reported and
unreported cases studied, in only four had journalists eventually disclosed their
conﬁdential sources); Comment, The Newsman’s Privilege: Government
Investigations, Criminal Prosecutions and Private Litigation, 58 Calif. L. Rev.
1198, 1203 n. 24 (1970) (citing In re Wayne, 4 Hawaii 475 (U.S.D.C. 1914), as
the only reported case in which a reporter revealed his source) [hereinafter cited
as Comment, The Newsman’s Privilege].

7408 US. 665 (1972).

“Frequently, attorneys negotiate with the media about the information requested
before a subpoena is issued. For example, the Attorney General’s Guidelines for
the issuance of subpoenas to the press provided that the Justice Department,
before requesting a subpoena, will weigh its harm to First Amendment rights

 

 

8

against the beneﬁt to the fair administration of justice; will make reasonable
attempts to obtain the information from persons other than journalists; and will
negotiate with the press. United States Department of Justice, Memorandum
No. 692: Guidelines for Subpoenas to the News Media (September 2, 1970).

Blasi reported that in a qualitative survey and personal interviews with
reporters he found that "almost all subpoenas are preceded by informal
discussions with the reporter, and as often as not his full cooperation is secured
or an accommodation is reached at this earlier stage." Blasi, supra note 6, at
260 and n. 147.

9The ﬁrst such study was reported in Mehra, Newsmen’s Privilege: An Empirical
Study, 58 Journalism Quarterly 560 (1987).

10See Monk, Evidentiary Privilege for Journalists’ Sources: Theory and Statutory
Protection, 51 Mo. L. Rev. 1, 30 n. 158-163 (1986). Monk reported that of the 26
states that have shield laws, all protect newspapers, all but one include radio
and television stations, and all but three include periodicals, but only about half
inclirlrde wire service or press associations, and less than half include other

me a.

The shield laws of Alabama and Kentucky appear to exclude periodicals.
Ala. Code §12-21-142 (1975) provides: "No person engaged in, connected with or
employed on any newspaper, radio broadcasting station or television station,
while engaged in a news-gathering capacity, shall be compelled to disclose in any
legal proceeding or trial . . . “

Ky. Rev. Stat. Ann. §421.100 (1972) provides: "No person shall be
compelled to disclose . . . the source of any information procured or obtained by
him, and published in a newspaper or by a radio or television broadcasting
station by which he is engaged or employed, or with which he is connected."

 

11See Press Enterprise Co. v. Superior Court of Cal., 464 US. 501, 510 (1984)
(presumption of open public proceeding in criminal trials embodied in First
Amendment applies to voir dire examination); Richmond Newspapers, Inc. v.
Virginia, 448 US. 555, 581 (1980) (right of public and press to attend criminal ‘
trials is guaranteed under the First and Fourteenth Amendments).

12See Chandler v. Florida, 449 US. 560 (1981). The US. Supreme Court ruled
that although there is no constitutional problem with regulated access for
cameras in the courtroom of those states that choose to allow them, there is no
right of camera access in states that forbid it or in federal courts.

13See Miami Herald v. Tornillo, 418 US. 241 (1974). The Supreme Court held
that a Florida statute granting political candidates a right to equal space to
reply to attacks on his newspaper by a newspaper violated the First
Amendment. But see Red Lion Broadcasting Co. v. FCC, 395 US. 367 (1969).
The Court upheld the fairness doctrine and personal attack rules as consistent
with the First Amendment, allowing the FCC to determine if broadcast media
were serving the public by presenting representative community views on
controversial public issues.

 

1“'See supra, note 9, at 565.
1"Id. at 564.

 

 

 

16Id.
17Id.

18See, e.g., Monk, supra note 10, at 37 -42; Eckhardt & McKey, Reporter’s
Privilege: An Update, 12 Conn. L. Rev. 435, 457-59 (1980).

19In New York Times v. Sullivan, 376 US. 254 (1964), the Supreme Court ruled
that public ofﬁcials must prove the falsity of publications and "actual malice",
i.e. knowledge of falsity or reckless disregard of whether or not the information
is false. In Gertz v. Welch, 418 US. 323 (1974), the Court ruled that public
ﬁgures must also meet the "actual malice" standard, but that a heightened state
interest permits a lower standard of recovery for private ﬁgures, as long as
falsity and negligence are demonstrated.

For example, the court in Carey v. Hume, 492 F.2d 631 (DC. Cir. 1974)
found that it would be difﬁcult for the plaintiff to prove "actual malice" without
knowing the identity of the defendant’s source since Hume’s information about
the circumstances of observations was so immecise that Carey could not know
where to begin his search. See infra Chapter II, note 67 and accompanying text.

20Blasi, supra note 6, at 251-52.

21Osborn, The Reporter’s Conﬁdentiality Privilege: Updating the Empirical
Evidence After a Decade of Subpoenas, 17 Columbia Human Rights L. Rev. 57,
79 (1985).

22Blasi, supra note 6, at 243.
234:08 U.S. 665 (1972).
24Mehra, supra note 9, at 565.
26Id.

26Blasi, supra note 6, at 258. "Preventing the conviction of an innocent man is
generally recognized as the paramount value in our system of criminal justice."

See, e.g., Alaska Stat. §09.25.160 (1983) (court may deny privilege if
withholding of testimony would "result in a miscarriage of justice or the denial
of a fair trial.").

Monk, supra note 10, at 44 and n. 235, noted that "the rights to fair trial
and compulsory process have been held to require a reporter to divulge
conﬁdential sources and information, at least in circumstances where the
defendant makes an adequate showing of relevance and inability to feasibly
obtain the information elsewhere."

 

 

 

 

 

CHAPTER II
HISTORY OF J OURNALISTS’ PRIVILE GE

From the Founding of the Republic to Branzburg v. Hayes

Few courts in the United States heard cases involving a claim of
journalist’s privilege prior to the late 1960’s. The ﬁrst case involving a
reporter’s conﬁdential source did not surface until 1848.1 It proved to be an
inauspicious beginning for the press: the District of Columbia Circuit denied a
New York Herald reporter’s writ of habeas corpus for relief from a US. Senate
contempt conviction.2

Later, James W. Simonton, a Washington correspondent for the New York
Daily Times, was cited for contempt when he refused to disclose his conﬁdential
sources to the United States House of Representatives.3 The Times published
charges that bribes were being taken by House members for votes on certain
land grant measures. Simonton was called to testify before a House committee
investigating the charges. Without testimony from Simonton, the committee
concluded that the charges were essentially true and the House recommended
expulsion of four members.4 Simonton was convicted of contempt of Congress
and placed in custody of the sergeant-at-arms for the remainder of the session.6

Thirty years later the press’ lack of success continued when the Supreme
Court of Georgia decided a newspaper publisher was a competent witness and

could not refuse to reveal the identity of the author of a libelous article.6 The

10

 

 

 

 

 

1 1

court took the interesting tack of stating that if the publisher refused to reveal
the author’s name, he would be considered the author himself." Also, he could
be punished for contempt of court as would any other witness refusing to
testify.8

In 1894, various newspapers charged that the "sugar trust" interest had
bribed senators to vote for favorable amendments to the Wilson-German Tariff
Bill pending in the US. Senate.9 A senate committee was convened to
investigate the charges and two reporters, Elisha Edwards of the Philadelphia
Press and John Edwards of the New York Mail and Express, were called to
testify. They refused to tell the committee who their sources of information for
the newspaper articles were. The reluctant witnesses then became the
responsibility of the District Attorney for the District of Columbia. The Supreme
Court of the District of Columbia struck their objection to testifying and
demanded the reporters disclose their information.10 Judge Cole apparently
regarded the power to force reporters to divulge information as a "great barrier
against libelous publication" and once stricken down, a great temptation to "use
the public press as a means of disseminating scandal" arises.11

In 1897, California became the next jurisdiction to refuse to recognize a
conﬁdential source privilege for journalists. In Ex parte Lawrence,12 the editor
and publisher of a newspaper that had charged members of the state senate
with accepting bribes refused to reveal the source of their information. The
appellate court affirmed the Senate’s contempt citation. In People v. Durrant,13
the prosecution in a murder case asked the defendant if he had told a
newspaper reporter of a certain event. The court summarily rejected the
argument raised by the defense counsel that the statement, if made, was

privileged.

 

 

 

 

 

12

In 1901, an Ohio court held that in any action for libel, a question as to
who furnished the information is both material and competent. ’4 The court
concluded that a communication made to a newspaper reporter and subsequently
published is not privileged.

Garland v. Torre“5 was the ﬁrst case in which the issue of First
Amendment protection of conﬁdential news sources was raised. Judy Garland
sued the Columbia Broadcasting System for breach of contract and for
defamation. The libel action resulted from statements that were published in
Marie Torre’s gossip column in the New York Herald Tribune. Garland sought
the name of the CBS "network executive" who allegedly made the statements.
At a deposition hearing, Torre refused to divulge the identity of her source, and
when she subsequently disobeyed a federal district court order to reveal the
name, she was found in contempt of court.

On appeal to the Second Circuit Court of Appeals, the defense contended
that to compel a newspaper reporter to disclose a source violated the freedom of
the press guaranteed by the First Amendment and that the public interest is
served by an unrestricted ﬂow of information, which can best be provided if
conﬁdential news sources are protected. Mr. Justice Stewart, who was sitting as
Circuit Justice at the time, accepted that disclosure of newsmen’s conﬁdential
sources might result in an abridgment of press freedom.16 However, he noted
that the First Amendment is not absolute and that the fair administration of
justice underlies the requirement of witnesses to testify." Stewart held that
where the identity of the source went to the "heart of the claim" there was no
constitutional right not to testify.18 The US. Supreme Court denied certiorari

and Torre spent ten days in jail.

 

 

 

 

 

 

13

From 1911 to 1969, only 17 reported cases arose in which journalists
claimed a conﬁdentiality privilege.19 Several authors have suggested reasons for
the limited number of cases.” One author speculated that newsmen failed to
demand hearings because penalties for not testifying were seldom harsh. Also,
the government wanted to maintain a good working relationship with the press
and prosecutors often worked out compromises when they sought information.
Smaller and less powerful news organizations were frequently willing to
cooperate.

By the late 1960’s, however, the government was issuing an

21

unprecedented number of subpoenas to journalists. The onslaught of subpoenas
has been attributed to the increase in the number of counterculture social and
political groups during these years. A large number of journalists in Chicago,
New York, Los Angeles, and San Francisco-~the four metropolitan areas most

closely associated with student radical activities--were subpoenaed. Investigative

 

reporting became more prevalent and government officials believed that the
press was informed about the activities of a wide range of dissident groups.22

The media were deeply disturbed by the sudden surge of subpoenas,
claiming that they were being forced to assist the government in investigating
crime.23 Cooperating would limit their ability to gather news because sources
would no longer offer information. Journalists founded The Reporters Committee
for Freedom of the Press at Georgetown University in. 1970, partially as a
reaction to the increase in subpoenas. To solve the problem, they wanted state
legislatures to enact shield laws to provide statutory protection for journalists
unwilling to testify, and courts to recognize a newsman’s privilege to provide

judicial protection against forced disclosure of unpublished information.24

 

 

 

14

Legislatures and courts did react, perhaps as a . result of Justice White’s
invitation in Branzburg v. Hayes.”5 At the time the decision in Branzb urg was
handed down by the United States Supreme Court, seventeen states had shield
laws.26 Since that time, legislatures in nine more states have enacted shield
laws.27 In most jurisdictions, courts have also recognized some type of qualiﬁed
privilege for newsmen, based on their interpretation of Branzburg v. Hayes.”
Branzburg v. Hayes

Branzburg v. Hayes” remains the only case in which the US. Supreme
Court has considered a newsmen’s privilege. Branzburg was actually a
consolidation of four cases: Branzburg v. Meigs,30 Branzburg 0. Pound,31
Caldwell v. United States,32 and In re Pappas.33

The ﬁrst two cases involved judgments of the Kentucky Court of Appeals
regarding Branzburg, a staff reporter for the Louisville Courier-Journal.
Branzburg wrote two articles that described drug use in Kentucky.34 After
publication of each of the articles, grand juries were convened to investigate
illegal drug activity and summoned Branzburg.35 However, he refused to reveal
the identities of the individuals he had seen using or manufacturing drugs,
based on the Kentucky reporters’ privilege statute,36 Sections 1, 2, and 8 of the
Kentucky Constitution,37 and the First Amendment of the United States
Constitution.38 The Kentucky Court of Appeals, however, rejected his arguments
based on the First Amendment and the Kentucky Constitution. It construed the
Kentucky reporters’ privilege statute as allowing a newsman the privilege of
refusing to reveal the identity of an informant, but held that the statute did not
permit a newsman to refuse to testify about individuals and events he had
personally observed.39 Branzburg sought review of both judgments by the US.
Supreme Court.“0

 

 

 

 

 

 

 

15

In Pappas, a television newsman-photographer had been assigned to
report on civil disorders involving the Black Panthers in New Bedford,
Massachusetts on July 30, 1970.“1 He was allowed to enter and remain inside
Panther headquarters during an expected police raid provided that he would not
report anything he saw or heard while inside.42 Pappas stayed inside
headquarters for three hours but no raid occurred. He therefore issued no
report.

When Pappas was later summoned before a grand jury investigating the
New Bedford disorders, he refused to answer questions about his visit to
Panthers headquarters. A second summons was then served on Pappas, which
he moved to quash on First Amendment grounds. The motion was denied by
the trial judge and the denial was upheld by the Massachusetts Supreme
Judicial Court. The court cited the serious civil disorders and the need for a
grand jury investigation "to discover and indict those responsible for criminal
acts."43 The court observed that recognition of testimonial privileges was the
exception in Massachusetts and that "[t]he obligation of newsmen . . . is that of
every citizen . . . to appear when summoned, with relevant written or other
material when required, and to answer relevant and reasonable inquiries. "4“

United States v. Caldwell involved a New York Times reporter assigned to ,1
cover the Black Panther party and other black militant groups in San I
Francisco.“ A federal grand jury investigating a number of possible violations of .
criminal statutes subpoenaed Caldwell. Caldwell and the New York Times ;
moved to quash because Caldwell would have had to appear in secret before the
grand jury, which could have destroyed his working relationship with the Black
Panther Party.‘16 Although the federal district court and the Ninth Circuit Court

of Appeals were willing to permit Caldwell to refuse to identify his sources, they

 

 

 

 

16
were not willing to grant him an absolute right to refuse to appear before the
grand jury.

Caldwell appealed the contempt order and the Court of Appeals
reversed." The Court of Appeals viewed the issue as whether Caldwell was
required to appear before the grand jury, rather than the scope of interrogation
permissible. The court determined that the First Amendment provided a
qualiﬁed testimonial privilege to newsmen, stating that requiring Caldwell to
testify would affect his unique relationship with members of the Black Panther
Party and cause him to censor his writings in an effort to avoid being
subpoenaed. The court held that Caldwell could refuse to appear before the
grand jury because of the potential impact of his appearance on the ﬂow of news
to the public.48

The Supreme Court split 4-1-4 in its decision on these cases. Justice
White delivered the opinion of the Court.49 Justice Powell concurred separately,60
and Justices Douglas, Stewart, Brennan, and Marshall dissented.61 Justice
White framed the issue narrowly: "The issue in these cases is whether requiring
newsmen to appear and testify before state or federal grand juries abridges the
freedom of speech and press guaranteed by the First Amendment."52 The Court
held that it does not.

The Court acknowledged that the press might sometimes need to promise
to keep informants’ identities or particular information conﬁdential to effectively
gather the news. News gathering qualiﬁes for First Amendment protection, the
Court agreed: "[W]ithout some protection for seeking out the news, freedom of
the press could be eviscerated.”53 However, the Court noted that at common law,
courts consistently refused to recognize a privilege allowing newsmen to refuse to

reveal conﬁdential information to a grand jury regardless of the burdens placed

 

 

 

 

17

on the news gathering function.64 The Court held that the public interest in law
enforcement outweighed the burden on news gathering that results from
requiring reporters to testify before grand j uries."3 Although both anecdotal and
empirical data in the form of afﬁdavits and briefs amici curiae were before the
Court, they did not ﬁnd that the evidence demonstrated the ﬂow of news would
be signiﬁcantly constricted by afﬁrming the testimonial obligations of newsmen.“
The Court declined to administer a conﬁdential newsman’s privilege.‘55 However,
the Court noted that Congress and state legislatures could fashion their own
standards with regard to a testimonial privilege for newsmen. Also, state courts
were free to interpret their own constitutions so as to recognize a qualiﬁed or
absolute newsman’s privilege.56

Justice Powell issued a brief concurring opinion that is the key to
understanding Branzburg v. Hayes.‘57 Justice Powell stated that "the Court does
not hold that newsmen, subpoenaed to testify before a grand jury, are without
constitutional rights with respect to the gathering of news or in safeguarding
their sources.”58 It therefore appears that Justice Powell at least accepts a
qualiﬁed right of newsmen not to testify. However, he made it quite clear that
newsmen must appear before the grand jury: "The newsman witness, like all
other witnesses, will have to appear; he will not be in a position to litigate at
the threshold the State’s very authority to subpoena him.”59 It can be said,
then, that the only issue decided by Branzburg is whether or not newsmen must
appear before grand juries: they must. But it is quite clear that Justice Powell
did not believe they must testify under all circumstances. To the contrary, he
indicated that if a newsman believes the information he has is not relevant to
the subject of the investigation, or if the demand for information is frivolous, he

may move to quash the subpoena. Justice Powell suggested that a balance be

 

 

 

18
struck between freedom of the press and the obligation of citizens to give
relevant testimony with respect to criminal conduct. However, he did not
indicate how such a balance was to be achieved, stating only that the test
proposed by Justice Stewart placed a heavy burden of proof on the State and
would defeat a fair balancing on the merits of a particular case.

Justice Stewart’s test was adopted by three of the dissenters in
Branzburg. The test had the following provisions:

[T]he government must (1) show that there is
probable cause to believe that the newsman has
information that is clearly relevant to a speciﬁc
probable violation of law; (2) demonstrate that the
information sought cannot be obtained by alternative
means less destructive of First Amendment rights;
and (3) demonstrate a compelling and overriding
interest in the information.“

The test was virtually identical to one proposed by Professor Alexander
Bickel of Yale Law School in an amicus brief.61 Justice Stewart accused the
majority of inviting "state and federal authorities to undermine the historic
independence of the press by attempting to annex the journalistic profession as
an investigative arm of government."(’2 He based his qualiﬁed privilege "on the
constitutional guarantee of a full ﬂow of information to the public.""3 Stewart
reasoned that the right to gather news is a corollary of the right to publish
guaranteed by the First Amendment.

Justice Douglas alone advocated an absolute privilege for newsmen.64 His
absolute view of the guarantees of the First Amendment precluded any
requirement that a newsman appear before a grand jury unless the newsman
himself was involved in a crime. Justice Douglas noted that if the newsman

was involved in a crime, the Fifth Amendment would provide immunity. He

found the majority’s decision offensive to "the Wide-open and robust

 

 

 

 

 

19

dissemination of ideas and counterthought that a free press both fosters and
protects and which is essential to the success of intelligent self-government.“

Thus, despite the outcome of Branzburg v. Hayes, ﬁve of the nine justices
did recognize a constitutionally-based testimonial privilege for newsmen. Justice
Stewart correctly assessed that Justice Powell’s "enigmatic concurring opinion“6
might allow ﬂexibility in Branzburg’s interpretation. Without Justice Powell’s
brief opinion, lower courts view of Branzburg v. Hayes might have been radically
different.
The Aftermath

After Branzburg, court decisions by the US. Court of Appeals in three
circuits established precedents that have been followed in federal and state
courts. These three cases-Baker v. F&F Investment,” Carey 0. Hume,“ and
Silkwood v. Kerr-McGee Corp."’--are frequently cited as illustrations of how to
balance the interests of the media and litigants in court cases.
Baker 0. F&F Investment

Alfred Balk had written an article on blockbusting in Chicago for the
Saturday Evening Post, which described tactics used by some real estate ﬁrms to
provoke panic selling of homes by white owners when a black family moved into
the neighborhood. The real estate ﬁrms bought homes at low prices from white
owners and sold them at much higher prices to black owners. Baker,
representing himself and other black buyers, sued F&F, seeking damages as
alleged victims of racial discrimination. Baker wanted to compel Balk, who was

then an editor of the Columbia Journalism Review and living in New York, to

identify the sources interviewed for the article. The federal district court in New

York refused to compel Balk to reveal his sources because Baker had not shown
he had exhausted alternative sources for the article. The Circuit Court of

 

 

. . -ﬁ—u M“ .‘ lug-H 4_..-_..—_ .. .-_..._ . .A

 

 

20
Appeals upheld the lower court’s decision, adding that Balk’s information did not
go to the "heart of the claim" advanced by Baker.70 The court distinguished
Baker from Branzburg, holding that a journalist’s interest in freedom of the
press carries more weight in a civil action than in a criminal proceeding."l
re . H

Carey v. Hume was also a civil action but the journalist was a libel
defendant. Jack Anderson wrote a column alleging that Carey, a lawyer for the
United Mine Workers, had taken a box of union records from the union ofﬁce
and then reported them as stolen. The column was based on information given
to one of Anderson’s reporters by a conﬁdential source. To win the libel suit
Carey had to prove "actual malice," which he said he could not do without
knowing the identity of Anderson’s sources.72 The federal district court agreed
and ordered Anderson to reveal the conﬁdential source.

On appeal, the District of Columbia Circuit Court affirmed. The court
used the balancing test given by Justice Powell and found that the information
Carey wanted went to the "heart of the claim."73 Although the court recognized
the existence of a qualiﬁed privilege, it held that the journalists’ interest would
have to yield.

Silkwoﬂ v. Kerr-McGee Corp,

Arthur Hirsch was an independent ﬁlm maker who investigated the
mysterious death of Karen Silkwood. Silkwood was an employee at a Kerr-
McGee plant that processed plutonium. She was killed in a one-car accident
while on her way to discuss plant conditions with a New York Times reporter.
Her estate sued Kerr-McGee, alleging violation of Silkwood’s civil rights by
conspiring to prevent her from organizing a labor union and from ﬁling ofﬁcial

complaints over safety conditions, and by contaminating her with radiation.

 

 

 

 

21

Kerr-McGee sought to question Hirsch about his sources and about
conﬁdential information that he had not used in his documentary. Hirsch moved
to quash the subpoena but the federal district court ruled that he was not a
journalist and therefore could not use the privilege. On appeal, the Tenth
Circuit Court of Appeals ruled that the privilege was not limited to newspaper
reporters. The case was remanded to the district court with directions to apply
Justice Stewart’s three-part test in determining whether to compel Hirsch to
testify.“
In re Farber

One of the most widely publicized post-Branzburg cases was In re
Farber."5 New York Times reporter Myron Farber began investigating a series of
thirteen unexplained deaths at a New Jersey hospital in 1975. The investigation
led to the indictment of Dr. Mario Jascalevich.76 During his trial the defendant
subpoenaed documents and materials in the New York Times’ possession
resulting from Farber's investigation. A motion to quash the subpoena was
denied and the trial judge ordered that the materials be produced for in camera
inspection. The Supreme Court denied a stay of the order."7 Farber and the
Times refused to comply with the order and were ﬁned $1,000 and $100,000,
respectively, for criminal contempt. Civil penalties were also imposed in the
form of an indeﬁnite prison term for Farber and a $5,000 per day ﬁne for the
Times."8

On appeal, the New Jersey Supreme Court afﬁrmed all orders below.
The majority addressed four issues: 1) whether Farber and the Times were
protected by a First Amendment privilege; 2) whether the New Jersey shield law
afforded the privilege claimed by Farber and the Times; 3) whether the Sixth
Amendment of the US. Constitution or the comparable article in the New Jersey

 

 

 

 

22
Constitution required compliance with the subpoena; and 4) whether special
procedural requirements existed under the New Jersey shield law.

On the ﬁrst issue, the New Jersey Supreme Court found that Branzburg
was applicable to criminal proceedings as well as grand jury proceedings and
therefore Farber and the Times had no privilege under the First Amendment.”
However, the court also stated that disclosure of information cannot be
compelled when it is "patently irrelevant" or when disclosure is not "manifestly
compelling" to the party seeking disclosure."o This sounds very much like two of
the three parts of Justice Stewart’s proposed test in Branzburg.

On the second and third issues, the court held that while the shield law
was applicable, the guarantees of compulsory process nevertheless required
disclosure.”ll

On the last issue, the court held that the legislation required a
preliminary hearing before a reporter could be compelled to submit materials to
a trial judge for in camera inspection."2 At the hearing the person seeking to
compel disclosure must prove that there is "a reasonable probability or likelihood
that the information sought by the subpoena was material and relevant to his
defense, that it could not be secured from any less intrusive source, and that the
defendant had a legitimate need to see and otherwise use it."”3

Despite the media’s concern over the unfavorable ruling in Farber, the
procedural requirement espoused by the court was very similar to the three-part

test proposed by Justice Stewart in Branzburg.

Other Aspects
W

 

 

 

23

Zurcher v. Stanford Daily84 afforded another look at the Supreme Court’s
attitude towards special privileges for the media. On April 11, 1971, the student
newspaper at Stanford University published photographs of an antiwar
demonstration in which policemen were attacked by unknown persons. The
police obtained a warrant to search the newspaper’s ofﬁces for further
photographic evidence, but the search was not productive.85

The Stanford Daily ﬁled suit in federal court alleging that the search
violated the First, Fourth, and Fourteenth Amendments.“ The district court
held that when a search is directed at an innocent third party, it is rarely
permissible. 3" The Ninth Circuit upheld the district court’s ruling."8

The Supreme Court reversed the decision in a ﬁve to three ruling, with
the majority holding that searches of newspapers require no special procedures.”
Justice White again delivered the opinion of the Court and stated that the
traditional requirements of probable cause and reasonableness when issuing a
warrant offered sufﬁcient protection against any harm to First Amendment
rights."0 The majority was unconvinced that sources would disappear or that
reporters would limit their news gathering because they might be subject to
searches."l

In his dissent, Justice Stewart argued that newsroom searches violate the
press clause of the First Amendment.92 He found it self evident that allowing
law enforcement omcers to search a newsroom jeopardizes conﬁdential
information that may be held there.”3

Widespread criticism of the decision in Zurcher led Congress to enact the
Privacy Protection Act of 1980."4 The intent of the Act was to "lessen greatly
the threat that Stanford Daily poses to the vigorous exercise of First
Ammdment rights.""‘5 It made obtaining a warrant to search the property of an

 

—-- - -._._'. mh—Hm .. .._......- _ . . .

 

 

24

innocent third party engaged in news dissemination much more difﬁcult to
acquire and generally required ofﬁcials to request or subpoena documents before
attempting to obtain a search warrant.96
WW

Herbert v. Lando"7 proved to be a source of concern for those who felt it
allowed liberal discovery rules to prevail, perhaps extending these rules to libel
suits that involved the use of conﬁdential sources. Herbert, a retired army
ofﬁcer, sued CBS Inc., Atlantic Monthly, and individual defendants, claiming
that he had been portrayed as a liar. Lando was the producer of the broadcast
and author of the Atlantic Monthly article. As a public ﬁgure, Herbert had to
meet the actual malice standard."8 During discovery, Herbert asked Lando about
his thoughts and conversations with codefendant Mike Wallace about material
included in the two publications.99 Lando refused to answer on the grounds that
the editorial process was privileged under the First Amendment?” The district
court granted Herbert’s motion to compel discovery but the Second Circuit
reversed on appeal. Chief Judge Kaufman held that Lando’s thoughts and
conversations were protected and inquiries into these processes would chill the
media and violate the First Amendment.”1

The Supreme Court held that Lando had no constitutional grounds for
refusing to answer and reversed the Second Circuit decision.102 The Court held
that the content of journalists’ thoughts and conversations may provide the only
direct evidence available to the plaintiff attempting to prove actual malice.103
The majority felt that First Amendment interests would not be seriously
threatened by compelling journalists to reveal the content of their thoughts and
conversations. The Court suggested that compelling disclosure of journalists’

thoughts would be likely to contribute to the suppression of false information,

 

 

 

 

25
but not information that could be veriﬁed. ‘°‘ Furthermore, the Court did not
believe that journalists would limit their conversations because of the possibility
of later disclosure since these help to eliminate error. 1°“ Thus, the Court
concluded that the interpretation of the First Amendment should not be modiﬁed

to include an evidentiary privilege for the editorial process.

 

 

 

 

26

Endnotes
1The ﬁrst case dealing with newsman’s privilege has often been mistakenly cited
as one involving James Simonton, infra Chapter II, note 3. However, this error
was found and reported in Gordon, Protection of News Sources: The History and
Legal Status of the Newsman’s Privilege, 1970 (University of Wisconsin,
unpublished dissertation).
2Ex parte Nugent, 18 F. Gas. 471 (DC. 1848).
3Cong. Globe, 34th Cong. 3d Sess. 274-75, 411-12 (1857).
‘H.R. Rep. No. 243, 34th Cong., 3d Sess. 169-179 (1857).
“Cong. Globe, 34th Cong, 3d Sess. 411-412, 426 (1857).
6Pledger v. State, 77 G. 242, 3 SE. 320 (1887).
7Id. at 248.
“Id.

’D’Alemberte, Journalists Under the Axe: Protection of Conﬁdential Sources of
Information, 6 Harv. J. on Legis. 307, 313 (1969).

10Chapman v. United States, 5 App. DC. 122, 123-125 (1895).

11Sen. Misc. Doc. 279 at 856.

12116 Cal. 179, 48 P. 75 (1897).

13116 Cal. 298, 48 P. 124 (1897).

14Clinton v. Commercial Tribune Co., 11 Ohio Dec. 603 (1901).

15259 F.2d 545 (2d Cir.), cert. denied, 358 US. 910 (1958).

16Id. at 548.

17See supra Chapter 1, notes 1-4 and accompanying text.

18259 F.2d at 550.

1"Garland v. Torre, 259 F.2d 545 (2nd Cir. 1958), cert. denied, 358 US. 910
(1958); In re Cepeda, 233 F. Supp. 465 (S.D.N.Y. 1964); Deltec, Inc. v. Dunn and
Bradstreet, Inc., 187 F. Supp. 788 (N .D. Ohio 1960); Rosenberg v. Carroll, 99 F.
Supp. 629 (S.D.N.Y. 1951); Brewster v. Boston Herald-Traveler Corp., 20 RED.
416 (D. Mass. 1957); In re Howard, 136 Cal. App.2d 816, 289 P.2d 537 (3d Dist.
1955); Clein v. State, 52 So.2d 117 (Fla. 1950); Plunkett v. Hamilton, 136 Ga.
72, 70 SE. 781 (1911); In re Goodfader, 45 Hawaii 317, 367 P.2d 472 (1961); In

re Wayne, 4 Hawaii 475 (U.S.D.C. 1914); Beecroft v. Point Pleasant Print and
Pub. Co., 82 NJ Super. 269, 197 A.2d 416 (1964); Brogan v. Passaic Daily

 

 

 

 

 

 

27

News, 22 NJ. 139, 123 A.2d 473 (1956); State v. Donovan, 129 N.J.L. 478, 30
A.2d 1011 (1943); In re Grunow, 84 N.J.L. 235, 85 A. 1011 (1913); People ex
rel. Mooney v. Sheriff, 269 N .Y. 291, 199 NE. 415 (1936); State v. Buchanan,
250 Or. 244, 436 P.2d 729, cert. denied, 392 US. 905 (1968); In re Taylor, 412
Pa. 32, 193 A.2d 181 (1963).

”See Comment, The Newsman’s Privilege, supra Chapter I, note 6, at 1200, n.9.

21See Note, The Case for a Federal Shield Law, 24 U.C.L.A. L. Rev. 160, 162-164
(1976); Osborn, supra Chapter I, note 21, at 59-60, n. 12.

mId.
23See Osborn, supra Chapter I, note 21, at 60, n. 14.

2“Matthews, Journalism’s Full Court Press, Wash. Journalism Rev., Mar. 1982 at
40.

”Branzburg v. Hayes, 408 US. 665, 706 (1972): "There is also merit in leaving
state legislatures free, within First Amendment limits, to fashion their own
standards in light of the conditions and problems with respect to the relations
between law enforcement ofﬁcials and press in their own areas. It goes without
saying, of course, that we are powerless to bar state courts from responding in
their own way and construing their own constitutions so as to recognize a
newsman’s privilege, either qualiﬁed or absolute."

2"Id. at 689, n. 27.

27The nine shield laws enacted after Branzburg are Del. Code Ann. tit. 10,
§§4320-4326 (1974); Ill. Ann. Stat. ch. 110, para. 8-901--8-909 (Smith-Hurd 1983
& Supp. 1987); Minn. Stat. Ann. §§595.021--.025 (West Supp. 1988); Neb. Rev.
Stat. §§20-1-901--903 (1987); N.D. Cent. Code §31-01-06.2 (1976); Okla. Stat.
Ann. tit. 12, §2506 (1980); Or. Rev. Stat. §§44.510-.540 (1984); R.I. Gen. Laws
§§9-19.1-1 to -3 (1985); Ten. Code Ann. §24-1-208 (1980).

2"See Monk, supra Chapter I, note 10, at n. 115. Monk stated that 14 of the 24
states without a shield law had some form of qualiﬁed privilege. In 9 of the 26
states with a shield law, courts have recognized a qualiﬁed First Amendment
privilege. Also, most federal circuit courts that have addressed the issue have
recognized a qualiﬁed newsman’s privilege.

29408 US. 665 (1972).

3°Unreported case.

31461 S.W.2d 345 (Ky. 1970).

32434 F.2d 1081 (9th Cir. 1970).

33358 Mass. 604, 266 NE. 2d 697 (1971).

 

 

 

 

 

28

34Branzburg v. Hayes, 408 US. 665, at 667, 669 (1972). The articles were run
November 15, 1969 and January 10, 1971.

351d. at 667-70.

36Ky. Rev. Stat. Ann. §421.100 (1972) provides: "No person shall be compelled to
disclose in any legal proceeding or trial before any court, or before any grand or
petit jury, or before the presiding ofﬁcer of any tribunal, or his agent or agents,
or before the General Assembly, or any committee thereof, or before any city or
county legislative body, or any committee thereof, or elsewhere, the source of any
information procured or obtained by him, and published in a newspaper or by a
radio or television broadcasting station by which he is engaged or employed, or
with which he is connected."

37Ky. Const. §§1, 2, and 8.

3"US. Const. Amend. 1.

39408 US. 665, at 669.

40Id. at 671.

“Id. at 672. See Murasky, supra Chapter I, note 6, at 835-36. Murasky states
that the Panthers agreed to allow Pappas inside their headquarters because they
felt the press often gave only the ofﬁcial side of stories. They were expecting a
police raid and wanted Pappas to cover the story from the inside.

42408 US. at 672.

43358 Mass. 604, 607, 266 NE. 2d 297, 299 (1971).

“358 Mass. 604, 612, 266 N.E.2d 297, 303 (1971).

45408 US. 665, 675.

46Id. at 676.

“Id. at 685.

”Id. at 691.

49408 US. 665, 667.

50Id. at 709-710.

51Id. at 711-25 (Douglas J., dissenting); id. at 725-52 (Stewart, Brennan, &
Marshall, JJ., dissenting).

62Id. at 667.
531d. at 681.

 

 

 

29
“Id. at 685.
“Id. at 691.
“Id. at 693.
“Id. at 703.
“Id. at 706.
“Id. at 709-710.
“Id. at 709.
“Id. at 710.
“Id. at 743 (Stewart, Brennan & Marshall, JJ., dissenting).
“Brief for The New York Times 00., National Broadcasting 00., Columbia
Broadcasting System, Inc., American Broadcasting Co., Chicago Sun-Times,
Chicago Daily News, Associated Press Managing Editors Ass’n, Associated Press
Broadcasters’ Ass’n and Association of American Publishers, Inc. as Amici Curiae
at 29, Branzburg v. Hayes, 408 US. 665 (1972).
“408 US. at 725.
“Id. at 726 n.2 (Stewart J., dissenting).
“Id. at 712 (Douglas J., dissenting).
“Id. at 721.
“Id. at 725 (Stewart J ., dissenting).
6"470 F.2d 778 (2d Cir. 1972), cert. denied, 411 US. 966 (1973).
“492 F.2d 631 (DC. Cir.), cert. denied, 417 US. 938 (1974).
69563 F.2d 433 (10th Cir. 1977).
70470 F.2d 778, 784 (2d Cir. 1972), cert. denied, 411 US. 966 (1973).
”Id.
72492 F.2d 631, 637 (DC. Cir.), cert. denied, 417 US. 938 (1974).
73Id. at 636.
“563 F.2d 433, 438 (10th Cir. 1977).
7578 NJ. 250, 394 A.2d 330, cert. denied, 439 US. 997 (1978).

 

30
76Id. at 264, 394 A.2d at 332.

"See New York Times v. Jascalevich, 439 U.S. 1301 (1978) (Justice White); New
York Times v. Jascale 'ch, 439 U.S. 1304 (1978)(Justice Marshall).

“In re Farber, 78 N .J. at 264, 394 A.2d at 332.
7"Id. at 268, 394 A.2d at 334.

801d. at 267, 394 A.2d at 334.

81Id. at 270-274, 394 A.2d at 335-37.

82Id. at 276, 394 A.2d at 338.

831d. at 276-77, 394 A.2d at 338.

“436 U.S. 547 (1978).

8"Id. at 551.

“353 F.Supp. 124 (ND. Cal. 1972).

87Id. at 135.

88550 F .2d 464 (9th Cir. 1977).

89436 U.S. 547, 567-68.

”Id. at 565.

“Id. at 566.

”Id. at 570-583 (Stewart, J., dissenting).
93Id. at 573 (Stewart, J., dissenting).
9"Pub. L. No. 96-440, 94 Stat. 1879 (1980).

“S. Rep. No. 874, 96th Con., 2d Sess. 4-5, reprinted in 1980 U.S. Code Cong. &
Ad. News 3950, 3951. '

9"Pub. L. No. 96-440 at §101, 94 Stat. 1879-80. For a more detailed analysis of
the Act, see Note, The Privacy Protection Act of 1980: Curbing Unrestricted
Third-Party Searches in the Wake of Zurcher v. Stanford Daily, 14 U. Mich. J. L.
Ref. 519 (1981); Note, Legislative Response to Zurcher v. Stanford Daily, 9
Pepperdine L. Rev. 131 (1981).

97441 U.S. 153 (1979).
“See supra Chapter I, note 19.

 

31
“Herbert v. Lando, 568 F.2d 974, 983 (2d Cir. 1977), rev’d, 441 U.S. 153 (1979).
1“The Court noted: "The opinions below did not state, and respondents do not
explain, precisely when the editorial process begins and when it ends. Moreover,
although we are told respondent Lando was willing to testify as to what he
’knew’ and what he had ’leamed’ from his interviews, as opposed to what he
’believed,’ it is not at all clear why the suggested editorial privilege would not
cover knowledge as well as belief about the veracity of published reports."
101568 F.2d at 984.
102441 U.S. 153 (1979).
1“Id. at 170.
104Id. at 172-73.

1“Id. at 173-74.

 

 

 

CHAPTER III
REVIEW OF LITERATURE

Legislatures in 26 states have enacted shield laws that offer various
degrees of protection to a newsman who refuses to reveal a conﬁdential source.1
In addition, ten of the twelve federal Circuit Courts of Appeal recognize a
newsman’s privilege based on the First Amendment or on federal common law.2
The Seventh Circuit Court of Appeals has not heard a newsman’s privilege case,
although the United States District Court for the Northern District of Illinois
has recognized a privilege.3 Only the Sixth Circuit Court of Appeals does not
appear to be willing to recognize an evidentiary privilege for newsmen.‘

While legislatures and courts were addressing the newsman’s privilege
issue, media and legal scholars were also developing their views. The literature
encompasses overviews of the newsman’s privilege issue, examinations of cases,
discussions of bases for the privilege, analyses of statutes, summaries of surveys
of newsmen and media organizations on the use of conﬁdential sources, and
empirical studies of newsman’s privilege cases.

Before Branzburg v. Hayes

Prior to Branzb urg v. Hayes, many authors urged adoption of some type
of testimonial privilege for journalists. Although there were some earlier
articles,‘5 the large number of subpoenas issued in the late sixties and early

seventies6 and the publicity surrounding the cases that would later be heard by

32

 

 

 

 

 

33
the U.S. Supreme Court in Branzburg v. Hayes7 prompted many authors to
propose solutions to the problem in those years. ,

D’Alemberte focused on the prOper weight to be given to the public
interests involved when considering newsman’s privilege--societal interests in
both the revelation of facts and the maintenance of conﬁdential sources.“ He
noted that advocating a constitutional basis for newsman’s privilege was a recent
development and the rationales given for not divulging conﬁdential sources or
information in the ﬁrst half of the twentieth century were quite different: 1) the
codes of ethics of news organizations forbid revelation of sources or information;
2) loss of livelihood might result from disclosure; 3) newsmen might be forced to
disobey employer’s regulations; 4) disclosure might result in a limit on the ﬂow
of information from news sources to the press; 5) newsmen might be forced to
incriminate themselves; and 6) the information sought was irrelevant to the
proceedings.9 D’Alemberte argued for a statutory resolution of the problem and,
after surveying the statutes in existence and examining the problems in drafting
a newsmen’s privilege statute, he proposed two model statutes.

Not satisﬁed that the shield laws then in existence provided adequate
protection for newsmen, Guest and Stanzler argued for a constitutional basis for
newsman’s privilege.10 They attacked Wigmore’s rationale for rejecting
newsman’s privilege at common law, stating that newsman’s privilege did meet
all four criteria, and contended that lack of cases in which a common law right
has been recognized should not decide whether the constitutional basis is
accepted.11 The authors argued that news gathering qualiﬁes for protection as a
First Amendment activity and maintained that the proper test is a balancing of
the interests involved, case by case. However, they believed that the scales

should be tipped to favor newsmen: "Courts should start with the presumption

 

 

 

 

 

 

34
that there is a constitutional privilege and make an exception only if the free
ﬂow of news will not be seriously impaired and the interest in more effective
judicial administration will not be enhanced sufficiently by enforcing the
exception."12 Guest and Stanzler also made one of the ﬁrst attempts to obtain
data on the importance of information from conﬁdential sources in news stories
to determine the effect of denying newsman’s privilege on the ﬂow of news. The
survey was unsophisticated: they asked editors of 37 daily newspapers
throughout the United States how many articles per year were based on
information from conﬁdential sources.13 They found that newspapers run a large
number of stories based on material from conﬁdential sources although this
varies widely between newspapers.“

Sherwood agreed that most pre-Branzburg privilege cases were not
correctly decided. ’5 She stated that constitutional claims for the privilege were
not properly evaluated by the courts in Torre1L6 and Goodfader" because 1) they
failed to balance the interests and weigh the circumstances in each particular
case; 2) they weighed the interest in compelling testimony high and the press
freedom interest low; 3) interests of private litigants should normally be
considered subordinate to those of the press; and, 4) in the absence of a clear
and present danger to judicial proceedings, the press’ First Amendment claims
should not be overridden.18 She concluded that neither court had a strong
conviction that news gathering is constitutionally protected. The author then
suggested a constitutional basis for the newsman’s privilege and analyzed the
sc0pe and extent of the privilege that should be available in various
circumstances. Against government subpoenas, the author suggested that there
must be an overriding state interest before encroachment on First Amendment

rights is allowedf" against subpoenas by criminal defendants, she suggested a,

 

 

 

 

 

 

35
balance be struck between Sixth and First Amendment rights;”° and in relation
to private litigation, she recommended that newsman’s privilege give way when
actual malice or highly unreasonable conduct is shown.21 Sherwood concluded by
calling for the Supreme Court to resolve the confusion in the courts and in the
state and federal government.

In a brief article, Nelson presented a journalist’s perspective on
newsman’s privilege before Branzburg.22 He agreed that the social and political
turmoil of the late 1960’s and early 1970’s was a major cause of the increase in
the number of newsmen subpoenaed. He also advocated a constitutional basis
for the privilege and analyzed several cases, including those that would later be
heard in Branzb urg, which relied on constitutional protection for the privilege.23
The author concluded that if the Ninth Circuit Court of Appeals decision in
Caldwell v. United States24 were upheld by the Supreme Court, newsmen would
use the reasoning to seek First Amendment support for a right of access in a
variety of circumstances.“

Post-Branzburg--The Early Years

Scholars were critical of the U.S. Supreme Court decision in Branzburg v.
Hayes,26 but most soon realized that lower courts were interpreting the decision
narrowly. Bases for a qualiﬁed newsman’s privilege were proposed, including a
common law basis and a federal shield law.

Murasky provided a thorough analysis of the Supreme Court’s decision in
Branzburg, its implications, and its impact on the lower courts .27 She also
discussed the "chilling effect" of compulsory disclosure on the press and the
evidence of the effect that was ignored by the Supreme Court in Branzburg.28
Murasky evaluated the state’s countervailing interest in apprehending and
punishing criminals and determined that the appropriate analysis by the

 

 

 

36
Supreme Court would have been whether the means being used to achieve that
end unduly impaired the exercise of First Amendment rights. An analysis of the
impact of Branzb urg on criminal and civil litigation in the lower courts led the
author to the conclusion that these courts were showing a greater willingness
than they had prior to Branzburg to uphold a privilege on First Amendment
grounds after consideration of the content of the information, the circumstances
in which it was obtained, and the circumstances in which disclosure was
sought.”

In another article that discussed several early post-Branzburg cases,
Goodale suggested that the solution to the problem was to let it be resolved "on
a case-by-case basis so that, in effect, a common law of subpoenas may
develop?“ He ﬁrst presented an extensive analysis of Branzburg v. Hayes and
decided that the case granted newsmen a qualiﬁed privilege. as ﬁve of the nine
justices would not require testimony in every instance. He then evaluated lower
court rulings in newsman’s privilege cases and noted that, in the majority of
cases, a qualiﬁed privilege has been recognized. He concluded that when the
Supreme Court next hears a newsman’s privilege case, the justices will be able
to rely on the common law to uphold a qualiﬁed privilege.31

Eckhardt and McKey discussed reporter privilege cases from Branzburg v.
Hayes through the late 1970’s.32 They examined reporter’s privilege in various
contexts, including criminal investigations, criminal trials, interference with the
criminal process such as disclosure of secret grand jury proceedings, and civil
cases. They found somewhat contradictory developments and attempted to
reconcile the holdings in Zurcher v. Stanford Daily,“ In re Farber,“ and Herbert
v. Lando,“ with the developments in post-Branzburg newsman’s privilege cases.

They noted that Farber may not have been a bad blow to the development of

 

 

 

 

 

37
newsman’s privilege because the procedural requirements agreed upon by the
court are very similar to those in Justice Stewart’s three-part test in his dissent
in Branzburg.“ The Supreme Court’s concern over the abuse of discretion
during civil discovery in Herbert v. Lando led Eckhardt and McKey to assume
that lower level trial courts will give procedural arguments substantial weight.”7
However, they found Zurcher a difﬁcult case to understand because 1) the Court
was willing to ignore judicial and scholarly authority since Branzburg; 2) search
warrants are generally considered to be more threatening than other attempts to
compel newsmen to disclose information; 3) the Court rejected procedures which
might have proved less restrictive of First Amendment rights; and 4) no
representative of First Amendment rights is consulted prior to issuance of a
search warrant.“ Eckhardt and McKey concluded that the views of a majority of
the Supreme Court are in sharp contrast to those of the lower federal and state
courts, the state legislatures that have passed shield legislation, most
commentators, and the media. However, they anticipated an accumulation of
judicial precedent favoring newsman’s privilege and believed that the vast weight
of judicial and scholarly opinion would ultimately prevail.

Similarly, Killenberg also found reason to hope for recognition of
newsman’s privilege.“ He analyzed several post-Branzburg cases and found
recognition of newsman’s privilege as a qualiﬁed First Amendment right,
although state and federal court decisions were inconsistent. He also considered
the Supreme Court’s decision in Zurcher a serious threat to conﬁdential sources
and information, and stated that journalists certainly preferred the subpoena to
the search warrant because it allows a refusal to comply.“ He concluded that

the Powell concurring opinion allowed Branzburg a ﬂexibility that proved to be

 

 

 

less

com
suit
of n
the

issu

 

 

38
less destructive to newsman’s privilege than advocates of a ﬁee press originally
expected.

The failure of newsmen to gain a shield against subpoenas through the
common law, state statutes, and constitutional law prompted one author to
suggest a federal shield law as the solution.‘1 Neubauer summarized the history
of newsman’s privilege and noted that while the radical activity which prompted
the rash of subpoenas in the late 1960’s and early 1970’s had subsided, the
issuance of subpoenas had not.42 He then reviewed the bases for assertion of the
privilege, including common law, the Fifth Amendment, state statutes, and the
First Amendment. Neubauer concluded that the combination of a constitutional
and federal statutory privilege would provide the best protection of newsmen’s
conﬁdential relationships. However, he warned that the major problem with a
federal statute, as with state statutes, is that courts are likely to interpret it
quite narrowly.43 Therefore, he suggested solutions to the problems likely to
occur when drafting such a statute: who qualiﬁes for the privilege, what is
protected and to what extend, and what constitutes a waiver of the privilege.
Status of Conﬁdential Privilege in Libel Suits

Although much research has involved the issue of newsman’s privilege in
the context of criminal proceedings, it also arises frequently in civil actions,
particularly in libel suits. Plaintiffs may ﬁnd it difﬁcult to prove "actual malice"
if they cannot determine the identity of a newsman’s source. Libel suits are
obviously of great interest to the media because of their direct involvement.

Watkins discussed the question of compelled disclosure in libel actions
subsequent to Branzburg v. Hayes.“ He reviewed two decision by U.S. Courts of
Appeal: Cervantes 0. Times Inc.‘6 and Carey v. H ume.‘6 In Cervantes, the mayor

of St. Louis sued Time because of an allegedly libelous article accusing him of

 

 

 

39
ties with organized crime. The Eighth Circuit determined that the extensive
documentation and uncontroverted accuracy of the bulk of the article, coupled
with evidence of a comprehensive investigation, made it unlikely that Cervantes
could establish malice.‘7 Thus, the court did not require disclosure of Time’s
conﬁdential sources.

In Carey, an attorney for the United Mine Workers sued Britt Hume, an
associate of syndicated columnist Jack Anderson, because of an article accusing
Carey of removing ﬁnancial records from United Mine Workers headquarters
while the government was investigating the union.“ Attempting to meet the
actual malice standard, Carey demanded that Hume be required to disclose the
source of his information. The Court of Appeals for the District of Columbia
found that the information sought by Carey did go to the "heart of the claim,"
and it would be difﬁcult for him to prove actual malice without knowing the
identity of Hume’s source.“ Watkins used these cases to design a general rule
for source disclosure in libel actions: "[N]ewsmen should not be subject to
compulsory disclosure of conﬁdential sources unless the plaintiff in a libel suit is
able to show with convincing clarity that such disclosure would provide
signiﬁcantly different evidence that "goes to the heart" of his libel claim.“0 The
standard provides for disclosure when it would lead to persuasive evidence of
actual malice or when there is no other method for proving malice. Watkins
suggested that other factors might also be taken into consideration in this
balancing approach, including the established ethical principle of journalism that
conﬁdential sources should not be revealed.“

Lindberg developed another approach to source disclosure in libel suits in
light of the danger to First Amendment interests.“ She claimed that the

public’s interest in receiving a wide range of information dictates a need for a

 

 

 

4O
privilege against compelled disclosure in libel cases. Only when the plaintiff can
present a prima facie case of actionable falsity and the defendants cannot prove
due care should the courts then consider whether the need for disclosure is
essential to the plaintiffs case. The author found Herbert v. Lando“
inapplicable to the question of conﬁdential source disclosure because it addressed
news processing and not news gathering. Furthermore, Lando involved
disclosure of journalists’ thoughts and conversations only, not disclosure of
conﬁdential sources and information. The author concluded that the ultimate
aim of a theory governing source disclosure in libel suits should be to neutralize
the impact of the conﬁdential source issue on libel litigation. Thus, when courts
deny plaintiffs access to sources’ identities, defendants should not be allowed to
use these sources as proof of due care.“ But this should also not allow a court
to instruct the jury that no source existed, thus punishing the defendant.
Post-Branzburg--A Decade Later

Ten years after Branzb urg v. Hayes, it became obvious that lower courts
were being very careful when interpreting Branzburg. Justice Stewart’s
proposed three-part test appeared to prevail in lower court decisions. Thus,
Branzburg’ s effect was not as restrictive as critics ﬁrst thought it would be.

In a more recent note on newsman’s privilege, Newman reported on
post-Branzburg developments in grand jury and other criminal proceedings,
including the Farber case.“ Newman concluded that lower courts were proving
sensitive to First Amendment values by conﬁning Branzburg to the facts of the
case. He also reviewed Zurcher 0. Stanford Daily“ and suggested that the
Supreme Court majority opinion was consistent with Branzburg and indicated a

neutral application of First Amendment principles.“ The author cautioned that

 

 

 

41
abuse of conﬁdential sources and information by some journalists might make it
more diﬁ'icult to convince the judiciary of a need for newsman’s privilege.“
Simon used the "absolute" Nebraska shield law as a basis for comparison

“ He reviewed newsman’s

of the freedom from disclosure in other states.
privilege cases heard in the federal circuit courts of appeal and concluded that a
qualiﬁed newsman’s privilege has been adopted by almost every circuit.“ He
noted that courts’ interpretation of several "absolute" shield laws could lead
newsmen to assume that they should consistently rely on a First Amendment
based privilege when called into court. Simon then addressed the conﬂicts
between federal and state courts on the question of newsman’s privilege and
found that such a conﬂict could prove very difﬁcult to resolve. He concluded by
determining when disclosure would be required even under the "absolute"
Nebraska shield law and noted that any countervailing constitutional right may
overcome the law.61

Monk provided the most current review of newsman’s privilege cases and
statutes.“ He ﬁrst discussed Wigmore’s four criteria for granting a testimonial
privilege,“ and concluded that although the newsman’s privilege meets the
criteria, stronger protection is afforded by a privilege based on the First
Amendment. Agreeing with Simon’s analysis, Monk stated that the constitutional
origins of newsman’s privilege call for it to be absolute except when confronting
a countervailing constitutional right. He conceded, however, that no absolute
privilege is likely to be recognized in the near future.“ The author examined
the history of newsmen’s privilege as well as the provisions of the various state
newsmen’s privilege statutes. He concluded that most of the current shield laws
are subject to interpretations by the judiciary that could result in insufﬁcient

protection for newsmen. Monk favored an absolute privilege based on the First

 

     

 

 

42
Amendment, to be recognized except in those instances in which there is a
countervailing constitutional right at stake.
Empirical Data on the Use of Conﬁdential Sources

Justice White deplored the lack of adequate empirical evidence supporting
the "chilling" effect in his opinion in Branzburg v. Hayes.“ However, without a
survey of the sources themselves to conﬁrm or deny that the lack of a
newsman’s privilege deters them ﬁ'om providing information in conﬁdence, a
survey of reporters would seem to be the next best thing. Several individuals
have attempted this type of survey.

Blasi conducted an extensive survey of the use of conﬁdential sources and
information by newsmen.“ Because he found that most legal decisions are based
on premises that are formulated in an unsystematic and impressionistic manner,
he "sought to achieve as comprehensive and systematic an understanding of the
dispute [press subpoena controversy] as time and resources would permit.“7
Therefore, he conducted three projects: 1) personal interviews with 47 reporters
and editors in New York City, Washington, DC, Chicago, Detroit, Los Angeles,
San Francisco, and Denver; 2) a mail survey, designed to provide qualitative
rather than quantitative information, of 67 reporters who were believed to be
especially familiar with the subpoena problem; and 3) a quantitative survey sent
to reporters and editors of newspapers, news magazines, national and local
television stations, radio stations, and the underground press. For the
quantitative survey, 1470 questionnaires were sent and 975 were returned, for a
response rate of 66.3 percent.“ Blasi used the personal interviews and
qualitative survey to put the information from the quantitative survey in
perspective. Some of his more interesting conclusions were 1) the threat of

subpoenas makes investigative reporting more difﬁcult, but does not necessarily

 

 

 

43
cause sources to "dry up"; 2) frequently, understandings of conﬁdentiality in
reporter-source relationships are implicit rather than explicit; 3) reporters feel
that they should resolve conﬂicting obligations to sources and to society and thus
show both a high level of willingness to testify voluntarily and to go to jail if
necessary to protect a source; 4) newsmen believe protection of the source’s
identity is more important than protection of conﬁdential information; and 5)
newsmen object most strenuously to press subpoenas when they feel the
circumstances do not warrant the subpoena and they have no relevant
information to contribute.

Osborn supplied an update on the empirical evidence gathered by Blasi in
support of a newsman’s privilege.“ He surveyed reporters nominated for Pulitzer
Prizes in 1980. Surveys were distributed to 366 reporters and 110 were
returned, for a response rate of 30.1 percent.70 Osborn explained that the
response rate was deceptively low because many of the surveys were never
received by the intended reporters and contended that the uniformity of the
responses should offset concerns about the response rate. The surveys asked
about the frequency, purpose, and subject of stories in which conﬁdential
information was used. Also asked was how the reporter would react or has

7‘ Osborn

reacted in various scenarios involving the newsman’s privilege issue.
concluded that reporters continued to rely heavily on conﬁdential sources for
information and that court decisions were not resulting in increased demands for
disclosure. He found, however, that newsmen believed sources continued to

divulge information only because of newsmen’s willingness to face incarceration

rather than violate the conﬁdentiality of a source.

 

 

 

 

 

44
Empirical Data on Newsmen’s Privilege Cases

Only one study has involved the cataloging of newsman’s privilege cases.
Most authors’ conclusions about lower court decisions have been based on their
impressions of the cases they have read. While this is probably adequate for
determining the direction the courts are taking, it may not be adequate for
determining the strength of that direction.

Mehra analyzed 129 cases for the years 1977 through 1980 in which
newsmen were subpoenaed. The cases were reported in Media Law Reporter
and News Media and the Law.72 His purpose was to determine if a pattern
existed in court decisions that could form the basis for solid guidelines for
journalists. He found earlier studies inadequate because conclusions were drawn
without an actual cataloguing of cases and most were done in the immediate
aftermath of Branzb urg when courts were still interpreting the Supreme Court’s
meaning. Mehra followed the following procedure when coding cases: 1) cases
were divided into two categories, federal and state; 2) cases were then further
divided into civil and criminal cases; 3) criminal cases were divided into those
for grand jury proceedings and those for criminal trials; 4) civil cases were
categorized according to whether or not the media was a party; and, 5)
information for cases under each heading was recorded, including a) state of
origin, b) court’s decision whether or not to reveal, c) basis for decision, whether
shield law, balancing test, no explanation, or technical. Then cases were
followed up to the appellate level and categorized according to whether a) the
lower court’s verdict was upheld, b) the lower court’s verdict was reversed, c)
reviewal of the case was denied, or d) no appeal was made.“

He concluded that litigants subpoena reporters more often in state courts

than in federal courts, but federal courts uphold subpoenas less often than state

 

 

45
courts.“ He also noted that newsmen are more protected in civil cases than in
criminal cases, particularly in those in which they are not a party. In criminal
cases, Mehra found it irrelevant whether the testimony was required in a grand
jury proceeding or a trial. This negates the conclusion that Branzburg provided
the answer for grand jury proceedings but not for other proceedings in criminal
cases.75 Mehra suggested a more thorough study would help evolve concrete

guidelines on which newsmen could rely.

 

 

 

46
Endnotes

1See supra Chapter 11, notes 26-27 and accompanying text.

“United States v. Caporale, 806 F.2d 1487 (11th Cir. 1986); Zerilli v. Smith, 656
F.2d 705 (DC. Cir. 1981); Bruno & Stillman v. Globe Newspaper, 633 F.2d 583
(1st Cir. 1980); United States v. Criden, 633 F.2d 346 (3d Cir. 1980); Miller v.
Transamerican Press, 621 F.2d 721, modiﬁed, 628 F.2d 932 (5th Cir. 1980);
United States v. Steelhammer, 561 F.2d 539 (4th Cir. 1977); Silkwood v. Kerr-
McGee, 563 F.2d 433 (10th Cir. 1977); Cervantes v. Time, Inc., 464 F.2d 986
(8th Cir. 1972); Bursey v. United States, 466 F.2d 1059 (9th Cir. 1972); Baker v.
F&F Investment, 470 F.2d 778 (2d Cir. 1972), cert. denied, 411 U.S. 966 (1973).

8Gulliver’s Periodicals, Ltd. v. Chas. Levy Circulating Co., 455 F. Supp. 1197
(N.D. Ill. 1978).

4Storer Communications v. Giovan, 13 Med. L. Rptr. (BNA) 2049 (6th Cir. Feb.
6, 1987).

6See Desmond, The Newsman’s Privilege Bill, 13 Albany L. Rev. 1 (1949); Gallup,
Further Consideration of a Privilege for Newsmen, 14 Albany L. Rev. 16 (1950);
Garter, The Journalist, his Informant, and Testimonial Privilege, 35 N.Y.U. L.
Rev. 1111 (1960); Semeta, Journalist’s Testimonial Privilege, 9 Cleve-Mar. L.
Rev. 311 (1960); Comment, Conﬁdentiality of News Sources Under the First
Amendment, 11 Stan. L. Rev. 541 (1959); Note and Comment, Privileged
Communications--News Media--A "Shield Statute" for Oregon? 46 Ore. L. Rev. 99
(1966); Note, The Journalist and his Conﬁdential Source: Should a Testimonial
Privilege Be Allowed? 35 Neb. L. Rev. 562 (1956); Note, The Right of a
Newsman to Refrain from Divulging the Sources of His Information, 36 Va. L.
Rev. 61 (1950).

6See supra Chapter II, n. 21 and accompanying text.
7408 U.S. 665 (1972). See supra Chapter II, n.29 and accompanying ten.

"D’Alemberte, Journalists Under the Axe: Protection of Conﬁdential Sources of
Information, 6 Harv. J. on Legis. 307 (1969).

9Id. at 315.

10Guest & Stanzler, The Constitutional Argument for Newsmen Concealing their
Sources, 64 NW. U. L. Rev. 18 (1969).

11Id. at 26-27.
12Id. at 56.
131d. at 57-61.
l4Id.

 

 

47
“Comment, The Newsman’s Privilege, supra. Chapter I, note 6.
1"Garland v. Torre, 259 F.2d 545 (2d Cir.), cert. denied, 358 U.S. 910 (1958).
1"In re Goodfader, 45 Hawaii 317, 367 P.2d 472 (1961).
1"Comment, The Newsman’s Privilege, supra Chapter I, note 6, at 1216-20.
"Id. at 1236-45.
“Id. at 1245-47.
21Id. at 1247-48.

”Nelson, The Newsman’s Privilege Against Disclosure of Conﬁdential Sources and
Information, 24 Vanderbilt L. Rev. 667 (1971).

2”Id. at 671-76.

2‘434 F.2d 1081 (9th Cir. 1970), rev’d sub nom. Branzburg v. Hayes, 408 U.S.
665 (1972).

25See Nelson, supra note 22, at 680. The circumstances included access to
government records and meetings and to records of industry, labor, and privately
owned hospitals. Of course, the decision of the Ninth Circuit in Caldwell was
not upheld

2"408 U.S. 665 (1972).

2"Murasky, supra Chapter I, note 6.

2”Id. at 851.

29Id. at 916-17.

“Goodale, Branzburg v. Hayes and the Developing Qualiﬁed Privilege for
Newsmen, 26 Hastings L.J. 709 (1975).

“Id. at 743.
“Eckhardt & McKey, supra Chapter I, note 18.
“436 U.S. 547 (1978). See supra Chapter II, note 79 and accompanying text.

3478 NJ, 250, 394 A.2d 330, cert. denied, 439 U.S. 997 (1978). See supra note 69
and accompanying text.

“441 U.S. 153 (1979). See supra note 92 and accompanying text.
“Eckhardt & McKey, supra Chapter I, note 18, at 451-455.

37Id. at 460-63.

 

 

48
“Id. at 446-47.
“Killenberg, Branzburg Revisited: The Struggle to Deﬁne Newsman’s Privilege
Goes On, 55 Journalism Quarterly 703 (197 8) [hereinafter cited as Killenberg,
Branzburg Revisited].
‘°Id. at 710.
“Note, The Newsman’s Privilege After Branzburg: The Case For a Federal
Shield Law, 24 U.C.L.A. L. Rev. 160 (1976) [hereinafter cited as Note, The
Newsman’s Privilege After Branzburg].
“Id. at 164.
“Id. at 188.

“Watkins, The Status of Conﬁdential Privilege for Newsmen in Civil Libel
Actions, 52 Journalism Quarterly 505 (1975).

45464 F.2d 986 (8th Cir. 1972).

4"492 F.2d 631 (D.C. Cir. 1974).

47464 F.2d 986, 992-94 (8th Cir. 1972).
“492 F.2d 631, 632 (D.C. Cir. 1974).
“Id. at 632.

“Watkins, supra note 40, at 512.

“Id. at 514.

“Note, Source Protection in Libel Suits After Herbert v. Lando, 81 Columbia L.
Rev. 338 (1981) [hereinafter cited as Note, Source Protection in Libel Suits].

“441 U.S. 153 (1979).

“Source Protection in Libel Suits, supra note 48, at 364.

“Note, Qualiﬁed Privilege for Journalists-Branzburg v. Hayes: A Decade Later,
61 Det. J. Urban Law 463 (1984) [hereinafter cited as Note, Qualiﬁed Privilege
for Journalists].

“436 U.S. 547 (1978).

“Qualiﬁed Privilege for Journalists, supra note 51, at 482-485.

“Id. at 485-86.

“Simon, Reporter Privilege: Can Nebraska Pass a Shield Law to Bind the Whole
World?, 61 Nebraska L. Rev. 446 (1982).

 

 

 

49
“Id. at 457-469.
“Id. at 497.
“Monk, supra Chapter I, note 10.
“Id. at 2-3.
“Id. at 17.
“408 U.S. 665, 693-94 (1972). Justice White wrote, "Estimates of the inhibiting
effect of such subpoenas on the willingness of informants to make disclosures to
newsmen are widely divergent and to a great extent speculative. It would be
difﬁcult to canvass the views of the informants themselves; surveys of reporters
on this topic are chieﬂy opinions of predicted informant behavior and must be
viewed in the light of the professional self-interest of the interviewees."
“Blasi, supra Chapter I, note 6.
“Id. at 235.
“Id. at 236-239.
“Osborn, supra Chapter I, note 21.
“Id. at 69.
71Id. at 70.
72Mehra, supra Chapter I, note 9.
73Id. at 563.
7“Id. at 564.

“Id. at 565.

 

 

 

 

 

 

 

CHAPTER IV
METHOD

Research Sample

To determine the factors signiﬁcant to decisions in newsman’s privilege
cases, it was necessary to examine the case law itself. To adequately describe
the interrelationship between factors and the inclination of the courts when
deciding newsman’s privilege cases, a content analysis was chosen as the
research method. Berelson provided a classical deﬁnition of content analysis:
"Content analysis is a research technique for the objective, systematic, and
quantitative description of the manifest content of communication."1 Content
analysis of newsman’s privilege cases should prove to be an effective method for
gathering the data necessary to test the hypotheses presented in Chapter I.

To analyze newsman’s privilege cases, it was ﬁrst necessary to identify
them. Initially, the West Publishing Company’s American Digest System was
used. Ideally, this method would have enabled all newsman’s privilege cases
reported in the various units of the National Reporter System to be identiﬁed.2
However, identifying pertinent cases with the digests proved to be a tedious
method. Another source with an extensive listing of newsman’s privilege cases
was located.’ One other source used to locate newsman’s privilege cases was the

Media Law Reporter, which reported many state newsman’s privilege cases not

50

 

 

 

 

 

51
published elsewhere.4 Ultimately, more than three hundred newsman’s privilege
cases were identiﬁed as having been reported during the period under study.

The time period chosen for the study was 1969 through the present. As
noted previously, few newsman’s privilege cases were reported prior to 196935
The time period included the release of the opinion in the landmark Supreme
Court case of Branzburg v. Hayes, allowing an examination of its effect on court
decisions that followed. Other Supreme Court decisions that had an effect on
the development of the newsman’s privilege were Zurcher v. Stanford Daily,6
released in 1978, and Herbert v. Lando,’ released in 1979. The decisions of
federal circuit courts in Baker v. F&F Investment (1972),8 Carey v. Hume (1974),9
and Silkwood v. Kerr-McGee (1977)10 had a substantial impact on federal court
decisions. During the time period, both federal and state courts analyzed
constitutional, statutory, common law, and public policy claims for recognizing a
newsman’s privilege and many established precedents in their jurisdictions.

The unit of analysis for this study was the court case. All court cases
previously identiﬁed that met the following criterion were included: an
individual or media organization requested to testify or produce materials in a
legal proceeding must have asserted a privilege not to do so.11 Consolidated
cases were considered to be one case only.12 Because many newsman’s privilege
cases have been appealed, only the decision of the court at the highest level of
appeal was examined. Cases that were remanded with no evident decision were
not pursued back to the lower courts to determine the ﬁnal decision because
many of the lower court decisions would not have been reported. Thus, the

cases were included as decided by the highest court of appeal.

 

 

 

 

 

 

 

52

Coding Categories

One coder working with a pretested instrument conducted the coding.
Each case was coded according to 23 coding categories. The categories, in the
order they appeared on the coding sheet, were court jurisdiction; federal circuit;
state; year; type of proceeding, whether criminal or civil; reason for a subpoena
in a criminal proceeding; reason for a subpoena in a grand jury proceeding;
reason for a subpoena by the defense; media status in a civil proceeding; type of
civil proceeding with media a party; type of civil proceeding with media a non-
party; type of evidence sought; type of material sought; type of party
subpoenaed; employment type of subpoenaed individual; non-management
employment type; management employment type; media organization type;
primary subject of material that resulted in a subpoena; basis for the newsman’s
privilege claim; whether or not the court recognized a newsman’s privilege; the
basis for the court’s decision; and the court’s decision (see Appendix I).

Obviously, no case required use of all the categories. The court
jurisdiction, federal circuit, state, year, and type of proceeding were self-evident.
The reason the subpoena in a criminal proceeding was issued was usually
speciﬁed in the court’s opinion, as was the reason for a subpoena in a grand jury
proceeding. The reason for a subpoena by a criminal defendant was frequently
not mentioned. The status of the media in a civil proceeding was apparent, and
if the media were a party to the lawsuit, the type of proceeding was also easily
discerned. However, if the media were a non-party in a civil suit, it was
sometimes difficult to determine the type of proceeding. Even if not speciﬁed in

the court’s opinion, a proceeding involving two parties in a state court was

presumed to involve a state cause of action.

 

 

 

 

 

 

 

53

The only choices available for the type of evidence sought from a
subpoena were the source, information, or both. However, a request for certain
information seemed contrived to reveal the source. For example, some
subpoenas did not require the name of the source, but did request information
on the source’s employment, location, means of obtaining information, or means
of contacting the newsman.“ Frequently the court’s opinion did not specify what
evidence was sought, or stated in such a generic fashion that information was
sought that the coder became convinced the coding deﬁnition of information was
not the same as the court’s deﬁnition. Nevertheless, the manifest content of the
court’s opinion was used, along with strict adherence to the coding deﬁnitions.
If material was actually subpoenaed, the speciﬁc type was usually better deﬁned.

The type of party subpoenaed and their type of employment or business
was usually speciﬁed in the court’s opinion. The primary subject of the material
that resulted in the subpoena was frequently not speciﬁed. In cases where the
subject was government ofﬁcials involved in crime, the subject was considered to
be crime.14

The basis for the newsman’s privilege claim was easy to discern if
speciﬁed in the court’s opinion. It was also fairly easy to determine whether or
not the court recognized a qualiﬁed or absolute newsman’s privilege because
most opinions were clear on this point. However, it was frequently difﬁcult to
determine the court’s basis for recognizing or not recognizing the privilege. A
citation to Branzburg v. Hayes was considered a First Amendment basis for the
privilege. Also difﬁcult was discerning between a First Amendment and federal
common law basis for recognition of the newsman’s privilege. If the First
Amendment was mentioned, it was chosen as the basis; if federal circuit cases

were cited, federal common law was considered the basis; if both appeared, the

 

 

 

 

54
First Amendment was considered the basis.“ Finally, the court’s decision posed
no problem for coding.

The coding categories were chosen to collect the information necessary to
test the hypotheses. However, much additional information was included on the
coding sheet to satisfy the researcher’ s curiosity: federal circuit, state, year, type
of evidence, type of material, basis for newsman’s privilege claim, whether the
court recognized a privilege, and the basis for recognizing the privilege. This
additional information should provide the basis for further understanding of the
newsman’s privilege issue. Also, because content analyses of court cases are not
conducted frequently, expanding the categories allowed the efﬁcacy of using this
method of analyzing court cases to be examined more fully.

Reliability

Reliability in content analysis refers to consistency of classiﬁcation.
Repeated measures with the same instrument by different coders on a given
sample of data should yield similar results. Opportunities for enhancing
reliability are generally limited to improving coders or category deﬁnitions.
Therefore, category deﬁnitions and coding procedures should be reviewed before
the analysis begins. Also, categories must be precisely deﬁned, so that coding
becomes more of a clerical task rather than a judgmental one.

Pretesting of the coding sheet and deﬁnitions was done by two coders.
Five cases were randomly selected to be coded. The initial effort resulted in an
86.3% agreement across all categories between the coders. Several categories in
need of reﬁnement were apparent, including the following: the deﬁnition of
"witness" to a crime, the types of civil proceedings available, the types of
employment available, the bases for the newsman’s privilege claim, and the

bases for a decision. These categories were altered to increase precision.

 

 

 

 

55
Five more randomly selected cases were chosen for coding. The second
effort resulted in a 96.2% agreement between the coders, for a ﬁnal agreement
of 91.2% (see Table 1). The agreement ﬁgure was arrived at by dividing the

total number of agreed-upon responses by the total number of responses.
Table 1--Intercoder Reliability

 

Coding Coding Coding Agreement
Category Agreement Disagreement Pereentage
Court jurisdiction 10 0 100.0
Federal circuit 6 0 100.0
State 4 0 100.0
Year 10 0 100.0
Proceeding type 10 0 100.0
Subpoena reason 6 0 100.0
Grand jury reason 2 0 100.0
Defense reason 4 0 100.0
Media status 4 0 100.0
Proceeding w/media 1 0 100.0
Proceeding w/o media 3 0 100.0
Evidence type 9 1 90.0
Material type 13 3 81.3
Party subpoenaed 9 1 90.0
Employment type 8 1 88.9
Non-management type 7 1 87.5
Management type 1 0 100.0
Media type 10 1 90.9
Subject type 9 1 90.0
Basis for claim 15 3 83.3
Privilege recognition 10 0 100.0
Basis for recognition 15 5 75.0
Decision 10 0 100.0
Total 176 17 91.2

The worst agreement was achieved for the basis for newsman’s privilege
claim, basis for recognizing or not recognizing the privilege, and evidence type.
However, these were categories included by the researcher to verify information
found in the literature, and not central to testing of the hypotheses. The

researcher was satisﬁed with the category and overall intercoder reliability

achieved during the pretest.

 

56
Similarly, the intracoder reliability was tested during the actual study.
After 150 cases had been coded, ﬁve were chosen at random to be recoded. The
resulting agreement was 94.3%. After a total of 300 cases had been coded, ﬁve
cases were again randomly selected to be recoded. Agreement on the second
recoding was 89.9%, for a total intracoder agreement of 92.0% (see Table 2).

Again, the worst agreement was achieved in those categories not central to the

research.

Table 2--Intracoder Reliability

 

Coding Coding Coding Agreement
Caisson: Agreement Disagreement Percentage
Court jurisdiction 10 0 100.0
Federal circuit 5 0 100.0
State 5 0 100.0
Year 10 0 100.0
Proceeding type 10 0 100.0
Subpoena reason 5 0 100.0
Grand jury reason 2 0 100.0
Defense reason 3 0 100.0
Media status 5 0 100.0
Proceeding w/media 2 0 100.0
Proceeding w/o media 3 0 100.0
Evidence type 9 1 90.0
Material type 12 3 80.0
Party subpoenaed 9 1 90.0
Employment type 9 1 90.0
Non-management type 8 1 88.9
Management type 1 0 100.0
Media type 11 1 91.7
Subject type 9 1 90.0
Basis for claim 14 2 87 .5
Privilege recognition 10 0 100.0
Basis for recognition 11 3 78.6
Decision 10 0 100.0
Total 173 14 92.0
Validity

Validity is generally deﬁned as the extent to which a coding instrument

measures that which it is intended to measure.“ Holsti identiﬁed four types of

 

57
validity which must be considered in research involving content analysis--content
validity, predictive validity, concurrent validity, and construct validity."

Content validity refers to the informed judgment of the researcher as to
whether the results are plausible and consistent with other information about
the phenomenon under study.“ Although this judgment is made at the end of
the study, it must be an ongoing process during the study. For this study, the
content seemed consistent with the impressions of legal and media scholars
regarding the impact of Branzburg v. Hayes, the use of Justice Stewart’s
proposed three-part test, and the accepted bases for the newsman’s privilege.

Predictive validity refers to the ability of an instrument to predict events
for which evidence is not presently available.“ For this study, the entire body of
case law involving newsman’s privilege for the time period was studied.
However, results of the research could be used to predict the outcome of future
newsman’s privilege cases.

The type of legal system used in the United States allows this possibility.
The American legal system is based on the common law tradition, which
originated and evolved in England. Common law consists of those principles and
rules of law for which the authority is not based on the will of the legislature.“
In the early history of English law, the custom developed of considering the
decisions of the courts as precedents. Thus, the doctrine of stare decisis
developed, which has been described as follows:

[T]hat when [a] court has once laid down a
principle of law as applicable to a certain
state of facts, it will adhere to that principle,
and apply it to all future cases where facts
are substantially the same.21

Obviously the role of statutes in the law cannot be ignored. When

studying the issue of newsman’s privilege, one must consider the will of the

 

 

 

 

 

 

 

58
legislature in the 26 states that have now enacted some form of newsman’s
privilege statute.22 However, interpretation of these statutes has still been left
to state courts, and sometimes federal courts, to decide.“ As there is no federal
shield law, the federal courts have decided the scope of any federal common law
newsman’s privilege available in each of the twelve federal circuits.

Thus, the results acquired using the coding instrument to analyze past
cases should provide a reliable indicator of how cases will be decided in the
future. Trend in recognition of the privilege and in bases used for claiming
newsman’s privilege and for deciding cases should indicate the direction the
courts are taking when confronted with these issues. Nevertheless, the method
of analysis chosen was experimental and the usefulness of the results in
predicting future events can only be determined at a point in the future.

The experimental nature of the research method also affect the
concurrent validity. Concurrent validity refers to the determination of whether
research ﬁndings are consistent with information other than that upon which the
research is based.24 Naturally, the external criterion with which the ﬁndings are
compared must also be a valid measure of the phenomenon being studied.
Mehra’s study of newsman’s privilege cases provided such a reference point for
some of the factors under study.25 For example, initial identiﬁcation of cases
showed 105 (33%) in federal courts and 215 (67%) in state courts for the time
period under study. Mehra’s study included only 129 cases that occurred
between 1977 and 1980.26 However, the breakdown of federal and state cases
was similar: 47 (36%) were federal court cases and 82 (64%) were state court
cases.27 Unfortunately, although there is much qualitative literature available on

the issue of newsman’s privilege, no quantitative research comparable to this

 

 

 

59
study has been undertaken except for Mehra’s work. Thus, no comparison with
other data to determine consistency is possible.

Construct validity refers to the consistency of the measures used in the
study with other measures.28 Some comparisons with measures used in Mehra’s
study were possible, including type of proceeding and jurisdiction of the court.
Because content analysis of court cases is rare, some of the measures had not
previously been used. However, the types of measures used were similar to
those used in other content analyses. For example, the subject matter category
was similar to that used by Mott to identify trends in newspaper content.29
Data Analysis

When coding was completed, data from the coding sheets were entered
into a personal computer ﬁle formatted for use with the program Statistical
Package for the Social Sciences (SPSS)(see Appendix VI). A tabulation of the
frequencies with which the various choices occurred for each category was then
run. Frequencies were also run for some categories while controlling for the
effects of other categories.

The ﬁrst hypothesis--print journalists employed by newspapers are
required to testify in fewer cases than other categories of journalists-was
addressed by considering the media organization the independent variable, the
decision the dependent variable, and controlling for the type of employment.

The second hypothesis--journa1ists and media organizations involved in
libel suits are required to disclose sources and information as often as those
involved in criminal proceedings—-required an analysis using two different
independent variables. Both the proceeding type and the civil proceeding with

media were considered independent variables. The dependent variable was the

 

 

 

 

 

 

60
decision. To obtain more information, the data were also run controlling for the
type of journalist and media organization.

The third hypothesis was simple to address. The hypothesis--stories
about government and politics result in the greatest number of subpoenas for
testimony by members of the media in civil cases--required only one independent
and one dependent variable. The independent variable was the subject type and
the dependent variable was the proceeding type, which included civil cases.

The fourth hypothesis--subpoenas by the defense in criminal proceedings
result in a requirement for testimony as often as in grand jury proceedings--
again required only one independent and one dependent variable. The
independent variable was the reason for a subpoena in a criminal proceeding
and the dependent variable was the decision. To expand on the available
information, cross-tabulations were also run using the reason for a subpoena by
a grand jury and by the defense as the independent variables and the decision
as the dependent variable.

The research conducted was basically descriptive. The data were
collected to enable various factors of signiﬁcance in newsman’s privilege cases to
be represented empirically. Because the research involved a census of every
newsman’s privilege case reported during a particular time period, it was
possible to use descriptive statistics. Almost all the data were measured at the
nominal level, the one exception being the year in which the case was reported.
To understand how two variables were related, contingency tables were used.
The data entered into the cells were the joint occurrences of single values on
each of two variables. Occasionally it was necessary to deve10p contingency

tables that controlled for other variables.

61
Endnotes
1B. Berelson, Content Analysis in Communication Research 18 (1952).

2Cases included are all federal court cases and state supreme and intermediate
appellate courts.

9’Goodale & Moodhe, Reporter’s Privilege Cases, in 2 Communications Law. 1985
(Practicing Law Institute).

‘When contacted, the Bureau of National Affairs, which publishes Media Law
Reporter, claimed that not all newsman’s privilege cases are published in Media
Law Reporter. However, perusal of the cases that are published led this
researcher to believe that the coverage is fairly complete.

5See supra Chapter 11, note 19 and accompanying text. Only 17 cases were
reported from 1911 to 1969; more than 300 cases were reported from 1969 to the
present.

6See supra Chapter II, n.79 and accompanying text.

7See supra Chapter II, n.92 and accompanying text.

8See supra Chapter II, n.66 and accompanying text.

9See supra Chapter II, n.67 and accompanying text.

loSee supra Chapter II, n.68 and accompanying text.

11The newsman’s privilege issue has arisen in other contexts. For example, two
cases from Indiana involved criminal defendants who had confessed to a
newsman. The defendants then attempted to invoke the Indiana shield law to
prevent the newsman from testifying against them. See Lipps v. State, 254 Ind.

141, 258 N.E.2d 622 (1970); Hestand v. State, 257 Ind. 191, 273 N.E.2d 282
(1971). These cases were not included in the study.

 

12For example, Branzburg v. Hayes was a consolidation of four cases but was
considered one case for research purposes. See supra Chapter II, n. 30-33 and
accompanying text.

13Some states protect the identity of conﬁdential sources but not the conﬁdential
information they impart.

1“Perhaps this deﬁnition seems inappropriate--Watergate becomes a simple crims
story. However, the researcher felt that the instigation that forced Woodward
and Bernstein to delve deeper into the events surrounding Watergate was that a
crime had been committed.

1E‘See Clampitt v. Thurston County, 9 Med. L. Rptr. (BNA) 1206 (Wash. Sup. Ct.
1983). The court noted that while some federal courts have viewed the
newsman’s privilege as one of federal common law, most have viewed it as a
product of the First Amendment. Even those cases labeling the privilege a

 

62
matter of common law have recognized that it is bounded "by an awareness of
First Amendment values." Bruno & Stillman, Inc. v. Globe Newspaper Co., 633
F.2d 583, 598 (lst Cir. 1980).
16O. Holsti, Content Analysis for the Social Sciences and Humanities 142 (1969).
1"Id. at 136, 142-143.
18Id. at 143.
19Id. at 144.
20Black’s Law Dictionary 250-251 (5th ed. 1979).
21Moore v. City of Albany, 98 NY. 396, 410 (1885).
22See supra Chapter H, 11. 26-27.
23See Simon, supra Chapter III, 11. 56.
24Id.
25See supra Chapter III, n.69 and accompanying text.
”Id. at 563.
27Id. at 564.
28See supra, note 16, at 148.

29Id. at 104.

 

 

 

CHAPTER V
FINDINGS

The content analysis of the newsman’s privilege cases from 1969 through
mid-1988 included 331 cases. Of the cases, one was a United States Supreme
Court case, 108 or 32.6% were federal court cases, and 222 or 67.1% were state
court cases (see Table 3). Table 3 shows the distribution of decisions across the
various court jurisdictions.‘

The distribution of newsman’s privilege cases across states is shown in
Table 4. Cases from Florida represented the largest number, with 57 cases for
25.6% of the total state cases. A large number of cases coded were from New
York, with 35 cases, or 15.7% of the total. California cases were also well
represented, with 14 cases, or 6.3% of the total. Although Florida, New York,
and California have a high concentration of media organizations, the distribution
may indicate the inclusion of a large number of cases from these states in Media
Law Reporter.

The large number of cases from Florida prompted comparisons between
variable frequencies for the states including and excluding Florida. Including
Florida, the percentages of state supreme court, state appellate court, and state
lower court cases were 23.0%, 28.4%, and 48.6%, respectively. Excluding
Florida, the percentages of state supreme court, state appellate court, and state

lower court cases were 29.5%, 31.3%, and 39.2%, respectively.

63

 

 

 

64

Table 3--Distribution of Decisions by Jurisdiction of Court

Deﬂation
Msdicﬁqn 1 2 3 4 5 Total
U.S. Sup. Ct. 0 1 0 O 0 1
0.0 100.0 0.0 0.0 0.0 0.3
U.S. Cir. Ct. 12 10 3 2 2 29
41.4 34.5 10.3 6.9 6.9 8.8
U.S. Dist. Ct. 51 11 17 O O 79
64.6 13.9 21.5 0.0 0.0 23.9
State Sup. Ct. 23 16 2 8 2 51
45.1 31.4 3.9 15.7 3.9 15.4
State App. Ct. 26 18 11 6 2 63
41.3 28.6 17.5 9.5 3.2 19.0
State Low. Ct. 80 19 9 0 0 108
74.1 17.6 8.3 0.0 0.0 32.6
Total 192 75 42 16 6 331
58.0 22.7 12.7 4.8 1.8

l=favorable to media
2=unfavorable to media
3=split decision
4=remanded

5=other

 

 

Table 4--Distribution of Cases by State

State

Alabama
Alaska
Arizona
Arkansas
California
Colorado
Connecticut
Delaware

Maryland
Massachusetts
Michigan
Minnesota
Missouri
Montana

New Hampshire
New Jersey
New Mexico
New York
North Carolina
North Dakota
Ohio
Oklahoma
Oregon
Pennsylvania
Tennessee
Texas
Vermont
Virginia
Washington
Wisconsin

Total

E

H
\lNrPhNoFsr-JNODH

OI

rPCﬂl-‘wmrﬁNwP-‘(ONOEOIHQDQNHHNCDOEHPHHOONIOirP-N

223

 

0.4
1.3
0.9
0.4
6.3
0.9
1.8
0.9
25.6
0.9
1.8
2.2
3.1
1.3
0.4

1.8
0.4
2.7
1.3
0.9
0.4
0.4
0.9
1.8
4.0
0.4
15.7
2.7
0.9
4.0
0.4
1.3
0.9
1.8
2.2
1.3
0.4
2.2
1.8

 

66

Including Florida, the percentage of civil cases in which the media were
ﬁrst parties was approximately 9% lower than when excluding Florida. The
percentage of libel cases decreased by approximately 8% when Florida was
included. The frequencies of most other variables varied no more than 5% when
Florida was included.

However, the basis for decision varied considerably with the inclusion of
Florida with the state cases. Florida does not have a newsman’s privilege
statute, but does have a strong common law tradition of recognizing a
newsman’s privilege. With the inclusion of Florida, decisions based on a
newsman’s privilege statute decreased from 42.3% to 28.2%. Decisions based on
state common law increased from 5.6% to 17.0% with the inclusion of Florida.
Other bases for decisions showed little variation when Florida was included.

The percentage of favorable decisions in state courts increased from 49.4%
to 57.8% with the inclusion of Florida. Because of the tradition of common law
recognition of a newsman’s privilege in Florida, most cases in that state are
decided favorably for the press. Other bases for decisions showed little variation
with the inclusion of Florida.

The distribution of newsman’s privilege cases across the time period of
the study may also reﬂect the use of Media Law Reporter as a source of cases
for the research. Table 5 shows the distribution of cases for the years of the
study. Only 20.4% of the cases coded for the study were decided between 1969
and 1978, while 13.0% of the cases were decided in 1982 alone. Media Law
Reporter was not published until 197 7 . Twelve newsman’s privilege cases were
reported in 3 Media Law Reporter, which contained cases published from
September 9, 197 7 through July 25, 1978. Twenty-four newsman’s privilege

cases were reported in 13 Media Law Reporter, which contained cases published

 

 

 

Table 5--Distribution of Cases by Year

Year

1969
1970
1971
1972
1973
1974
1975
1976
1977
1978
1979
1980
1981
1982
1983
1984
1985
1986
1987
1988

Total

E

mN-QrPcDQr-IHO

 

 

68
from August 5, 1986 through May 26, 1987.

Of the cases coded, 147 or 44.4% were criminal cases and 184 or 55.6%
were civil cases. Table 6 shows the distribution of decisions for criminal and
civil cases. The percentages of favorable decisions in criminal and civil cases
was 60.7% and 63.3%, respectively. However, a larger percentage of criminal
cases resulted in unfavorable decisions for the press-29.3% of criminal cases
versus 20.1% of civil cases. A larger percentage of civil cases resulted in Split
decisions--16.6% of civil cases versus 10.0% of criminal cases.2

Table 7 shows the distribution of reasons for subpoenas versus favorable
and unfavorable decisions. In criminal proceedings, media were subpoenaed
most often by the defense. Seventy-six cases, or 60.3% of cases listed in Table 7
resulting from criminal proceedings, involved a subpoena by the defense. Grand
jury proceedings followed defense subpoenas in frequency, with 23 cases or 18.3%
of cases listed in Table 7 resulting from criminal proceedings.

Table AIII-l shows the distribution of decisions in cases involving a
defense subpoena versus the reason given for the defense subpoena. Of those
cases that speciﬁed the reason for a defense subpoena, the need for impeaching
evidence was the justiﬁcation most often given. Impeaching evidence was
deﬁned in the operational deﬁnitions as evidence that will contradict a
prosecution witness’s testimony. However, in 39 cases or 44.8% of the total, the
reason for a defense subpoena was either other than those listed or not speciﬁed.
Thus, no information was available for this variable in a large number of cases.

Table AIII-2 shows the distribution of reasons for subpoenas in grand
jury proceedings versus the decisions in the resulting newsman privilege cases.

For cases resulting from grand jury proceedings, subpoenas were issued in 22

 

 

 

 

69
Table 6--Distribution of Decisions by Case Type

Deg‘sion
Favorable Unfavorable

W to Media to Media Split Total
Criminal 85 41 14 140

60.7 29.3 10.0 45.3
Civil 107 34 28 169

63.3 20.1 16.6 54.7
Total 192 75 42 309

62.1 24.3 13.6

 

 

 

70

Table 7 --Distribution of Favorable and Unfavorable Decisions in Criminal Cases
by Reason for Subpoena

D . .
Reason for Favorable Unfavorable
Sphmena to Media to Media Total
Grand Jury 9 14 23
Subpoena 39.1 60.9 18.3
Defense 64 12 76
Subpoena 84.2 15.8 60.3
Prosecution 5 8 13
Subpoena 38.5 61.5 10.3
Violation of 2 2 4
Grand Jury 50.0 50.0 3.2
Secrecy
Other 5 5 10
50.0 50.0 7 .9
Total 85 41 126

67.5 32.5

 

 

71
cases, or 78.6% of the total, because it was believed the newsman had evidence
of criminal activity. Of ﬁve cases in which the newsman witnessed a crime, only
one was decided favorably for the media. However, in those cases in which the
newsman had other evidence of criminal activity, seven of 22, or 31.8%, were
decided in the media’s favor. The percentage of unfavorable decisions was also
lower for the newsman who had evidence of criminal activity but who had not
actually witnessed a crime.

In civil actions, the media were ﬁrst parties in 74, or 40.2%, of the cases
and a third party in 110, or 59.8%, of the cases. Table AIII-3 shows the
distribution of decisions for civil cases. When the media were a ﬁrst party, the
decision was favorable in 34 or 50.7% of the cases and unfavorable in 18 or
26.9% of the cases. When the media were a third party, the decision was
favorable in 73 or 71.6% of the cases and unfavorable in 16 or 15.7% of the
cases. There were nearly as many split decisions as unfavorable decisions
regardless of the media’s status in a civil suit.

Table 8 shows the distribution of decisions in libel, privacy, and other
civil suits in which the media were a ﬁrst party. Fifty-eight or 82.8% of the
cases were libel suits. The decision was favorable to the media in 28 or 48.3%
of the libel cases. Split decisions were almost as numerous as unfavorable
decisions, with 14 or 24.1%, and 16 or 27.6% of the total, respectively. When

combined, decisions in these categories outnumbered favorable decisions.

 

Table AIII-4 summarizes the distribution of decisions in civil suits in
which the media were a third party. The majority of these cases involved a
state cause of action-~69 cases or 61.6%. Results in third party civil cases were
quite favorable to the media, with the media prevailing in 73 cases or 65.2%.

 

72

Table 8--Distribution of Decisions by Reason for Civil Suit with Media a First

Party
Reason for Favorable
QLYiLSJJit to Media
Libel 28

48.3
Privacy 1

33.3
Other 6

66.7
Total 35

50.0

2..

Unfavorable
to Media

16
27.6

2
66.7

2
22.2

20
28.6

Split

14
24. 1

21.4

Total

58

82.8
4.3

12.9
70

 

 

 

73

Table AIII-5 indicates that information was the evidence type most
frequently requested in a subpoena. In those cases where the subpoena
requested identiﬁcation of the source of information, the decisions were slightly
more favorable to the press than in those cases where information alone was
requested. Of 76 cases in which the source was requested, 48 or 63.2% were
decided favorably to the media. Of 179 cases in which information was
requested, 102 or 57.0% were decided favorably for the media. The percentages
of decisions unfavorable to the media were also similar, with 22.4% of cases
involving the source and 25.7% of cases involving information decided
unfavorably for the media. When source and information were both requested,
favorable decisions occurred in 23 or 43.4% of the cases. However, when
combined the number of unfavorable and split decisions equalled the number of
favorable decisions.

Table Alli-6 shows the distribution between the type of material
subpoenaed, if any, and the decision. In 146 cases, or 44.1% of the 331 total
cases, no material was subpoenaed. The media prevailed in 91 or 62.3% of these
cases. In 107 of the listed cases, or 32.3% of the 331 total cases, written
documentation was subpoenaed. Seventy-two or 67.3% of these cases were
decided favorably for the media. The percentage of favorable decisions declined
when the material subpoenaed could contain direct evidence of a wrong. Thus,
the media prevailed in only 56.5% of the cases in which photographs were
subpoenaed, 48.8% of the cases in which videotape was subpoenaed, and 48.6%
of the cases in which audiotape was subpoenaed.

Table AIII-7 indicates that non-management employees were involved in
more newsman’s privilege cases than management employees. Of 307

subpoenaed employees, 256 or 83.4% were non-management and 51, or 16.6%,

 

74
were management employees. Subpoenaed print journalists represented 191 or
74.6% of non-management employees subpoenaed and 62.2% of all employees
subpoenaed. Of management employees, editors and publishers were most often
parties in newsman’s privilege cases, with 37.3% and 23.5% of the total,
respectively.

Newspapers and their employees were parties in far more newsman’s
privilege cases than any other media type. Table AIII-8 shows that of 343
subpoenaed organizations, 218 or 63.6% were newspapers. Television stations
and networks were next in frequency, with 63 subpoenas or 18.4% of the total.

Table 9 shows that the subject material that most often resulted in a
subpoena was crime, with 135 cases or 40.8% of the total subpoenas. Business
stories followed with 54 cases or 16.3% of the total, and stories about
government resulted in 50 cases or 15.1% of the total.

Table AIII-9a shows the distribution of decisions in criminal cases by type
of non-management employment. Except for radio broadcasters, who were
involved in only two cases, print journalists were treated most favorably by the
courts. Of 93 cases, print journalists prevailed in 61 or 65.6% of the cases.
Television journalists received favorable decisions in eight of 14 cases, or 57.1%.

Similarly, Table AIII-9b shows that print journalists were treated most
favorably in civil cases. In 66 of 98 cases, or 67.3%, print journalists were
granted a favorable decision. However, the number of split decisions in civil
cases almost equalled the number of unfavorable decisions. Radio broadcasters
were only involved in three civil cases, and received favorable decisions in two
cases, or 66.7%. Photojournalists and television journalists each had favorable

decisions in half of the civil suits in which they were involved.

75

 

Table 9--Distribution of Case Types by Subject Material That Resulted in

Subpoena*
Case Type
511189.01 Criminal Ciﬂ Total
Government 9 41 50
6.1 22.3 15.1
Politics 2 6 8
1.4 3.3 2.4
Business 2 52 54
1.4 28.3 16.3
Accident 2 15 17
1.4 8.2 5.1
Crime 1 16 19 135
78.9 10.3 40.8
Social 0 3 3
Injustice 0.0 1.6 0.9
Environment 0 3 3
0.0 1.6 0.9
Other 16 45 61
10.9 24.5 18.4
Total 147 184 331
44.4 55.6

*Percentages listed are column percentages, not row percentages.

 

 

76

Table AIII-10a summarizes the distribution of decisions in criminal cases
by type of management employment. Editors were the managers most often
involved in criminal cases. Nine of 17 cases, or 52.9%, involved newspaper or
magazine editors. Only three of the criminal cases involving editors, or 33.3%,
were decided in their favor.

Table AIII-lOb indicates that managers were subpoenaed in twice as
many civil cases as criminal cases. Publishers and editors were involved in 21
of the 34 cases, or 61.8%. However, publishers fared much better, with seven or
63.6% of their cases being decided in their favor. Editors prevailed in only four
cases or 40.0%. The combined number of unfavorable and split decisions
equalled the number of favorable decisions for editors.

Table AIII-11a summarizes the distribution of decisions in criminal cases
for media organizations. Newspaper and magazine organizations prevailed in
almost two-thirds of the criminal cases in which they were involved. News and
wire services also received favorable treatment from the courts. Television
stations and networks were not treated as well. The combined number of
unfavorable and split decisions almost equalled the number of favorable
decisions. Thus, of 30 criminal cases involving television stations or networks,
14 or 46.7% were decided favorably for the media, and 13 or 43.3% resulted in
unfavorable or split decisions.

Table AIII-llb summarizes the decisions in civil cases by type of media
organization. Again, newspaper and magazines received favorable decisions in
almost two-thirds of the cases in which they were involved. The number of split
decisions for newspapers almost equalled the number of unfavorable decisions,
and for magazines they were equal. Of the ﬁve cases in which radio stations or

networks were involved, favorable decisions were received in three cases or

 

 

 

 

77

 

60.0%. However, television stations and networks were also treated unfavorably
by the courts in civil cases. Television stations and networks prevailed in only
13 of 33 cases, or 39.4%. The combined number of unfavorable and split
decisions was 17, or 51.5%, much higher than the number of favorable decisions.

Table 10a summarizes the distribution of decisions in newsman’s privilege

 

cases resulting from libel suits by type of non-management employment. Print
journalists prevailed in 14 cases or 46.7%. However, 16 cases or 53.3% resulted
in unfavorable or split decisions. Overall, non-management employees received
favorable decisions in 16 cases or 45.7%, and 19 unfavorable or split decisions, or
54.3%.

Table 10b summarizes the distribution of decisions in libel cases by type
of management employment. Publishers prevailed in three of ﬁve cases, or
60.0%. Editors received a favorable decision in only one of three cases, or
33.3%.

Table 10c indicates that media organizations received favorable decisions
in 28 of 58 libel cases, or 48.3%. However, 30 cases or 51.7% resulted in

unfavorable or split decisions. Television stations fared almost as well as

 

newspapers in the percentage of favorable decisions received.

Table 11a indicates that print journalists employed by magazines

 

prevailed in more newsman’s privilege cases that did those employed by
newspapers. Overall, print journalists received favorable decisions in 128 of 186
cases, or 68.8%.

Table 1 1b shows the distribution of favorable and unfavorable decisions in
newsman’s privilege cases involving photojournalists. Photojournalists received
an equal number of favorable and unfavorable decisions, and prevailed in only 4

of 8, or 50.0%, of their cases.

 

 

78

Table 10a--Distribution of Decisions in Libel Cases Versus Type of Non-
Management Employment

 

Decision

Type of
Non-Mgt. Favorable Unfavorable
Emphment to Media to Media Split Total
Print 14 9 7 30
Journalist 46.7 30.0 23.3 85.7
Radio 1 1 0 2
Broadcaster 50.0 50.0 0.0 5.7
Television 1 O 2 3
Journalist 33.3 0.0 66.7 8.6
Total 16 10 9 35

45.7 28.6 25.7

 

 

 

 

79

Table 10b--Distribution of Decisions in Libel Cases Versus Type of Management
Employment

Desisien
Type of
Management Favorable Unfavorable
Employment to Media to Media Split Total
Owner 1 0 O 1
100.0 0.0 0.0 10.0
Publisher 3 1 1 5
60.0 20.0 20.0 50.0
Editor 1 1 1 3
33.3 33.3 33.3 30.0
Producer 0 O 1 1
0.0 0.0 100.0 10.0
Total 5 2 3 10
50.0 20.0 30.0

 

80

Table 10¢--Distribution of Decisions in Libel Cases Versus Type of Media
Organization

Decision
Type of
Media Favorable Unfavorable
mm to Media to Media Split Total
Newspaper 15 9 9 33
45.5 27.3 27.3 56.9
Magazine 7 3 1 11
63.6 27.3 9.1 19.0
Radio Station 1 1 0 2
or Network 50.0 50.0 0.0 3.4
TV Station 5 3 4 12
or Network 41.7 25.0 33.3 20.7
Total 28 16 14 58

48.3 27 .6 24.1

 

81

Table 11a--Distribution of Decisions by Type of Media Organization in Cases
Involving Print Journalists

Decision
Type of
Media Favorable Unfavorable
W to Media to Media Split Total
Newspaper 113 35 17 165
68.5 21.2 10.3 88.7
Magazine 14 3 2 19
73.7 15.8 10.5 10.2
News or 1 0 0 1
Wire Service 100.0 0.0 0.0 0.5
Other 0 1 0 1
0.0 100.0 0.0 0.5
Total 128 39 19 186
68.8 21.0 10.2

 

82

Table 11b--Distribution of Decisions by Type of Media Organization in Cases
Involving Photojournalists

Decision

Type of
Media Favorable Unfavorable
912mm to Media to Media Split Total
Newspaper 4 3 0 7

57.1 42.9 0.0 87.5
News or O 1 0 1
Wire Service 0.0 100.0 0.0 12.5
Total 4 4 O 8

50.0 50.0 0.0

 

 

83

Table 11c indicates that broadcast journalists employed by radio stations
or networks received favorable decisions in four of ﬁve, or 80.0%, of their cases.
Broadcast journalists employed by television stations prevailed in only 14 of 24,
or 58.3%, of their cases.

Table 12a indicates that publishers prevailed in eight of 12 cases, or
66.7%. Newspaper publishers fared even better--they received favorable
decisions in ﬁve of seven cases, or 71.4%.

In contrast, Table 12b shows that editors received favorable decisions in
only seven of 14 cases, or 50.0%. Newspaper editors fared particularly badly--
they received favorable decisions in only three of nine cases, or 33.3%.

Table 120 indicates that managers for television stations also fared poorly
in newsman’s privilege cases. Television managers prevailed in only one of ﬁve

cases, or 20.0%, and received three split decisions, or 60.0% of their cases.

 

 

84

Table llc--Distribution of Decisions by Type of Media Organization in Cases
Involving Broadcast Journalists

Type of
Media. Favorable

Organization to Media
Radio Station 4

or Network 80.0

TV Station 14
58.3

Total 18

62.1

Decision
Unfavorable
to Media

1
20.0

3
12.5

4
13.8

Split

0.0

29.2

24.1

Total

17.2

24
82.8

29

85

Table 12a--Distribution of Favorable and Unfavorable Decisions by Type of
Media Organization in Cases Involving Publishers

Deg'sign
Type of
Media Favorable Unfavorable
Organization to Media to Media Total
Newspaper 5 2 7
71.4 28.6 58.3
Magazine 1 1 2
50.0 50.0 16.7
News or 0 1 1
Wire Service 0.0 100.0 8.3
Other 2 0 2
100.0 0.0 16.7
Total 8 4 12

66.7 33.3

H

 

 

86

Table 12b--Distribution of Favorable and Unfavorable Decisions by Type of
Media Organization in Cases Involving Editors

nausea.
Type of
Media Favorable Unfavorable
Organization to Media to Media Total
Newspaper 3 6 9
33.3 66.7 64.3
Magazine 3 1 4
7 5.0 25.0 28.6
Other 1 O 1
100.0 0.0 7.1
Total 7 7 14

50.0 50.0

 

Table 12c--Distribution of Favorable and Unfavorable Decisions by Type of Media

87

Organization in Cases Involving Television Managers

Type of
Media Favorable
' z i n to Media
Television 1
20.0
Total 1

20.0

Deg'sign

Unfavorable
to Media

1
20.0

20.0

Split

60.0

60.0

Total

100.0

100.0

 

88
Endnotes

1All tables list the numbers for each cell, with the row percentages beneath
them. Row sums and percentages of the total are given at the right of the
tagies; column sums and percentages of the total are given at the bottom of the
ta e.

“For purposes of this research, a split decision refers to a decision that required
partial disclosure of the information sought from a newsman. Split decisions
occur frequently in libel suits, when a newsman is not required to reveal

conﬁdential information but may not use the information as part of his defense.

Also, in criminal proceedings, a judge may require in camera review of
information prior to determining if the information must be disclosed.

 

CHAPTER VI
ANALYSIS

The research was designed to test four hypotheses and to provide other
information relevant to the issue of newsman’s privilege. The analysis provides
a discussion of the signiﬁcance of the results.
Hypotheses
1. Print journalists employed by newspapers are required to testify in
fewer cases than any other category of journalist.
In general the hypothesis was supported. Print journalists employed by
newspapers were required to testify in fewer cases than almost any other
category of journalist. Only print journalists working for magazines and wire
services and radio broadcast journalists fared better in the courts; however, they
were involved in only 19, one, and ﬁve cases, respectively. Print journalists
were involved in 165 cases. ‘
Table 11 summarizes data relevant to the ﬁrst hypothesis. Table 11a /
indicates that 73.7% of print journalists working for magazines received /
favorable decisions, while 68.5% of print journalists working for newspapers
received favorable decisions. The one case involving a print journalist working
for a news or wire service was decided in the media’s favor. Overall, 68.8% of
cases involving print journalists were decided favorably for the media.

Table 11b indicates that photojournalists prevailed in only 50.0% of the

89

90
cases in which they were involved. Photojournalists working for newspapers
fared only slightly better, with 57.1% of their cases being decided in the media’s
favor.

Table 11c shows that the treatment of broadcast journalists depended on
the type of organization for which the journalist works. While radio broadcast
journalists prevailed in 80.0% of their cases, only 58.3% of the cases in which
television broadcast journalists were involved were decided favorably for the
media. Overall, broadcast journalists prevailed in 62.1% of their cases.

Although it may seem appropriate to conclude that print journalists
receive favorable treatment from the courts, regardless of the type of media
organization for which they work, this distinction is misleading. A more apt
distinction can be made, based on whether the type of information the newsman
normally gathers can be expected to be received in conﬁdence. Information
received in conﬁdence has received much more protection in the legislatures and
the courts than information in the public forum.

The distinction between material received under a "cloak of
conﬁdentiality" or material obtained in the public forum often depends on
whether the material is visual or non-visual. Thus, print journalists are more
likely to obtain conﬁdential information than some other types of journalists. In
particular, photojournalists and television broadcast journalists often obtain
information in the public forum, which does not require a promise not to disclose
conﬁdential sources and materials. Furthermore, the taking of photographs and
videotape‘ and the making of audiotape requires personal observation of events.

The distribution of decisions based on the type of material subpoenaed is
summarized in Table AIII-6. When no material was subpoenaed, or when

written documents or transcripts were subpoenaed, more than 60% of the cases

91
resulted in favorable decisions. However, the percentage of favorable decisions
for cases in which photographs, videotape, or audiotape were subpoenaed was
less than 60%.

Additional research or an extensive search of the qualitative literature
would be required to determine if non-print journalists are indeed discriminated
in court decisions and in statutes. The lower percentage of favorable decisions
in cases in which photographs, videotape, and audiotape were subpoenaed
probably resulted from the lack of an agreement of conﬁdentiality in these cases.
As conﬁdentiality was not a coding category, the extent to which this factor
affected the outcome of cases cannot be determined. However, a number of
court decisions and statutes refer to conﬁdentiality. For example, in CBS, Inc.
v. Campbell, the Missouri Court of Appeals held that neither the state nor
federal constitution protected a television station’s "outtakes", when there were
no claims of conﬁdential sources involved in providing the video and audio to a
grand J'urY-2

In Ex parte Grothe, the Texas Court of Criminal Appeals held that a
photographer did not have a First Amendment privilege to refuse to produce
photographs of an alleged criminal offense that occurred in a public place.3 The
court said, "[Wie fail to see a hypothetical case wherein a weighing process
would result in suppression of highly relevant personal observation of public
criminal activity.“

Neither of the cases cited above was heard in a state with a shield law to
protect subpoenaed newsmen. However, some state shield laws do not exempt a
newsman from testifying when he personally observed an event. For example,
Delaware’s shield law states:

"Source" means a person from whom a reporter obtained
information by means of written or spoken communication or the

92

transfer of physical objects, but does not include a person from

whom a reporter obtained information by means of personal

observation unaccompanied by any other form of communication...‘
Rhode Island’s shield law protects only conﬁdential information:

[N]o person shall be required . . . to reveal conﬁdential association,

to disclose any conﬁdential information or to disclose the source of

any conﬁdential information . . .

Thus, the shield laws themselves in some states may work against
photojournalists and television broadcast journalists when they are subpoenaed
to testify.

The New York shield law would not seem to require disclosure of
nonconﬁdential material. No reference to protection only of material acquired
under a "cloak of conﬁdentiality" is made.7 Nevertheless, the New York courts
interpret the shield law to protect only conﬁdential sources and material.

The court in People v. Korkala noted that the legislature had amended
the New York shield law in 1981 and had not created an "absolute privilege"
against disclosure.8 Prior to the 1981 amendments, there was no doubt that "for
a communication or its source to be shielded from disclosure it must be shown
that the information was imparted to the newsman under a cloak of
conﬁdentiality upon an understanding, either express or implied, that either the
information or its sources or both, would not be revealed."9

Thus, in People v. Korkala, the appeals court held that television
"outtakes" of interviews with the defendants must be produced for in camera
inspection to determine whether the "outtakes" were necessary to the
prosecution’s case. Similarly, in O’Neill v. Oakgrove Construction, the appeals
court held that a newspaper organization must produce photographs of an
accident scene for in camera inspection, to determine if they depicted relevant

evidence not shown in police photographs already available.”

93

A number of legislatures and courts do not recognize a privilege for
material not received in conﬁdence: precisely the type of material that a
photojournalist or television broadcast journalists is most likely to gather. If no
promise of conﬁdentiality is involved, courts in many jurisdictions ﬁnd that First
Amendment interests are not harmed by requiring disclosure. The "chill" on the
news gathering process usually refers to sources who elect not to give
information to newsmen because they fear their identity or particular
information may not remain conﬁdential. But when non-conﬁdential material is
involved, the "chill" refers to newsmen who do not cover certain stories because
they fear they will be subpoenaed. The "chill" for non-conﬁdential material is
self~imposed, in contrast to the "chill" for conﬁdential material. Courts see no
need to engage in a lengthy balancing test to determine need, relevance, and
lack of alternative sources for non-conﬁdential material. Instead, courts require
testimony from newsmen who have non-conﬁdential material relevant to the case
at bar.

2. Journalists and media organizations involved in libel suits are
required to disclose sources and information as often as those subpoenaed in
criminal proceedings.

The hypothesis is supported by the data: a requirement for disclosure
occurs only slightly less often in a newsman’s privilege case resulting from a
libel suit than in a case arising from criminal proceedings. The percentage of
unfavorable decisions was 27 .6% in cases resulting from libel suits (Table 8); and
29.3% in cases resulting from criminal proceedings (Table 6).

Although the percentage of unfavorable decisions is similar in libel suits
and criminal proceedings, the percentage of favorable decisions is not. Newsmen

receive a lower percentage of favorable decisions in privilege cases arising from

 

 

94
libel suits than in cases resulting from criminal proceedings. The percentage of
favorable decisions was 48.3% in cases arising from libel suits (Table 8); and
60.7% in cases arising from criminal proceedings (Table 6). The difference lies
in the percentage of split decisions: 24.1% in privilege cases resulting from libel
suits (Table 8); and 10.0% in cases resulting from criminal proceedings.

Split decisions appear to be the judiciary’s answer to media parties that
use the newsman’s privilege simultaneously as a "shield” and a "swor ". The
court in Greenberg v. CBS explained how the defendants’ refusal to disclose
sources stymied the plaintiff:

Their refusal to disclose has deprived the plaintiff of access to

valuable and material evidence on a critical element of the

plaintiff’s cause of action. In short, defendants rely on undisclosed

sources and information for veriﬁcation and offer this veriﬁcation

as "proof" of their responsibility. Thus they have put in issue the

very privilege upon which they rely. They are using the "Shield

Law" afﬁrmatively as a sword to prevent challenge by the

plaintiﬁ'.11

Public ofﬁcials who are plaintiffs in libel suits must prove the falsity of
publications and "actual malice", which is deﬁned as knowledge of falsity or
reckless disregard of whether or not the information was false.12 Public ﬁgures
must also meet the "actual malice" standard,13 but private ﬁgures usually need
only show falsity and negligence to impose liability. 1‘

Because of the heavy burden of proof imposed on public ofﬁcials and
public ﬁgures, many courts ﬁnd it unreasonable for newsmen to prevent
plaintiffs in libel suits from obtaining the evidence necessary to meet the
burden. In Downing v. Monitor Publishing Company, the New Hampshire
Supreme Court expanded on the necessity for disclosure:

One way to show reckless publication is to show that "there are

obvious reasons to doubt the veracity of the informant or the

accuracy of his reports." St. Amant v. Thompson, 390 U.S. 727,

732, 88 S.Ct. 1323, 1326, 20 L.Ed.2d 262 (1968). Another is to
show that there was in fact no informant and that the publication

 

 

95

 

was therefore baseless. If a defendant is unable or unwilling to

name its informant, it may be inferred that there was none. If

there was in fact an informant, a plaintiff would be unable to show

that there "were obvious reasons to doubt" his veracity if he is

unable to determine who the informant was.“

Courts realize that to enforce an order for disclosure, they must rely on
their contempt power. However, newsmen often refuse to obey an order for
disclosure, deciding instead to go to jail. Courts are aware that using the
contempt power does not aid the libel plaintiff in proving his case:

We come to the question of enforcement of the court’s order. Of

course, the trial court is free to exercise its contempt power to

enforce its order. We are aware, however, that most media

personnel have refused to obey court orders to disclose, electing to

go to jail instead. Conﬁning newsmen to jail in no way aids the

plaintiff in proving his case. Although we do not say that the

contempt power should not be exercised, we do say that something

more is required to protect the rights of a libel plaintiﬁ‘.16

Therefore, courts often issue split decisions in newsman’s privilege cases
resulting from libel suits. Generally, these split decisions do not require the
media party to reveal the identity of a conﬁdential source. In some cases,
however, there was a presumption of no source at trial if the media defendant
refused to reveal a source during discovery. In Downing 0. Monitor Publishing
Company, the New Hampshire Supreme Court decided to enforce its order as
follows:

[W]e hold that when a defendant in a libel action, brought by a

plaintiff who is required to prove actual malice under New York

Times, refuses to declare his sources of information upon a valid

order of the court, there shall arise a presumption that the

defendant had no source. This presumption may be removed by a

disclosure of the sources a reasonable time before trial.17

Another approach was used by the court in Greenberg 0. CBS. The libel
defendants were allowed to state that a source existed, but were not allowed to
rely on the source as evidence of due care. The court addressed the problem as

follows:

 

 

 

96

At trial, if the defendants opt to rely on their statutory privilege,

they should be precluded from any use of those sources and

information as proof of veriﬁcation or evidence of responsibility.18

Eight states have avoided the dilemma of source disclosure in libel suits
by incorporating speciﬁc provisions in their newsman’s privilege statutes.” In
four of the states, the newsman’s privilege is automatically eliminated if the
media party asserts a defense based on information from a conﬁdential source.20
Another state eliminates the privilege if an article is written "in bad faith [or]
with malice."21 In a ﬁfth state, if the defense is based on information from a
conﬁdential source, the burden of proof is shifted to the defendant.22 In the two
remaining states, the libel plaintiff must ﬁrst demonstrate sufﬁcient need for the
information before the privilege is eliminated.23

In most states with speciﬁc provisions for libel in the newsman’s privilege
statutes, the courts have yet to address the issue of source disclosure in a libel
suit. However, in Saxton v. Arkansas Gazette, the Arkansas Supreme Court
afﬁrmed a trial court ruling that the plaintiff in a libel suit had not made a
reasonable effort to determine the informant’s identity or to show publication
with malice, bad faith, or reckless disregard for the truth.” The Oklahoma
Supreme Court held in Taylor v. M iskovsky that the plaintiff had not shown that
a newsman’s articles were relevant to a signiﬁcant issue in his defamation
lawsuit.25 In Munson v. Gaylord Broadcasting, the Louisiana Court of Appeals
reversed a lower court decision, stating that the order for disclosure was not
justiﬁed because the libel plaintiff had not shown the newsman’s information
would be relevant to his case and because, as a private ﬁgure, the plaintiff did

not have to prove "actual malice".26

 

 

 

97

In states with newsman’s privilege statutes without speciﬁc provisions for
defamation actions, the courts usually give precedence to the First Amendment
interests expressed in the statutes. For example, in Mazzella 0. Philadelphia
Newspapers, I nc., the federal district court refused to compel disclosure of the
identity of a source, in accordance with the Pennsylvania shield law. The court
said:

In the absence of any constitutional right to a cause of action

sounding in defamation, an individual’s interest in vindicating this

interest recognized by State law is clearly not as great as the

public’s interest in discovering crimes against the State held

insufficient to warrant piercing the reporter’s shield in Taylor.

Since the legislature has chosen not to incorporate an exception for

libel cases in the statute as it clearly could have, . . . it would be

highly inappropriate for this court to undertake the task.27

The court makes an interesting point about the relative importance of the
newsman’s privilege statute and an individual’s right to his good name. A libel
suit is, after all, a state cause of action. As there is no federal shield law,
newsman’s privilege statutes are state laws. Few states’ constitutions
unquestionably provide recourse for damage to reputation; only one state’s
constitution provides newsmen freedom from contempt citations for failure to
reveal a conﬁdential source. However, in most jurisdictions, the newsman’s
privilege is grounded in the First Amendment, while the tort of defamation
implies a restriction on First Amendment rights. Because of the federal
constitutional basis for the newsman’s privilege recognized by many courts,” a
test for admitting evidence and existence of a source in defamation actions
should be interpreted by the judiciary to favor the media party.

However, the libel plaintiff should not be precluded from proving his case

because a newsman will not reveal his source. A newsman who does not have a

non-conﬁdential source to verify conﬁdential information should not be allowed

 

 

 

 

98

to beneﬁt from his lack of thoroughness. Thus, the approach taken by the court
in Greenberg v. CBS is appropriate: allow libel defendants to state that a source
existed, but do not allow reliance on the source as evidence of responsibility.

The jury can then determine the proper weight to give testimony from each
Party.

3. Stories about government or politics result in the greatest number of
subpoenas for testimony by members of the media in civil cases.

The hypothesis must be rejected. Work on a business story resulted in
the greatest number of subpoenas for testimony by media witnesses in civil
cases. The number of subpoenas in civil cases arising from work on both
government and politics stories combined was slightly less.

Table 9 shows that media witnesses were subpoenaed in 28.3% of civil
cases involving newsman’s privilege because of work on a business story. In
25.6% of civil cases involving newsman’s privilege, media witnesses were
subpoenaed because of work on a story about government or politics.

Osborn found that, when surveyed, newsmen indicated that when they
used conﬁdential information, 57 .8% of the stories involved government or
politics.” Only 11.9% of the stories involved business or consumer issues.30 If
this is true, a large number of subpoenas for testimony by newsmen in civil
cases resulted from a small number of stories using conﬁdential sources and
information.

Table AIII-12a and -12b provide a partial explanation for the number of
media witnesses subpoenaed in civil cases because of work on business stories or
government and politics stories. Of 54 civil cases in which newsmen were
subpoenaed because of work on a business story, 21 or 38.9% were libel suits.

Of 48 civil cases in which newsmen were subpoenaed because of work on a story

 

 

99
about government or politics, 22 or 45.8% were libel suits. Table AIII-12a
provides an additional piece of information about the 64 newsman’s privilege
cases arising from libel suits. Of the 64 cases, 22 or 34.4% resulted from stories
about government or politics and 21 or 32.8% resulted from stories about
business.

The high proportion of libel suits resulting from business stories may be
the result of businessmen’s lack of experience in dealing with the media. While
government ofﬁcials and politicians, and to a lesser extent, government
employees, are accustomed to dealing with the media, most businessmen are not.
Government ofﬁcials and politicians expect to be in the public eye, but most
businessmen tend to avoid public exposure. When businessmen become the focus
of public attention, they may overreact if that attention is less than favorable.“n
Also, one effect of the Republican administration during the 1980’s may be an
increased focus on business by media organizations.

In civil cases in which the media is a third party, the ease with which an
attorney can obtain information may affect the number of subpoenas issued to
newsmen. Although obtaining information from government agencies may be
difﬁcult, an attorney is still dealing with an organization with requirements for
public disclosure of much information. Businesses, on the other hand, are
usually private and prefer to keep information about their operations from the
public. Thus, an attorney may have little recourse but to subpoena a newsman
who may be privy to information about a civil case.

The media have fared well in newsman’s privilege cases resulting from
civil suits in which they were a third party. Table AIII-3 indicates that the
media received favorable decisions in 71.6% of these cases. However, courts are

much stricter with newsmen who refuse to reveal conﬁdential sources and

100
information when involved in a libel suit.32 Table 8 indicates that the media
received favorable decisions in only 48.3% of libel suits. Newsmen should be
aware of the need to verify information received from conﬁdential sources in
stories about government and politics and about business. In particular,
newsmen should have non-conﬁdential sources available to verify information
that may be defamatory.

4. Subpoenas by the defense in criminal proceedings result in a
requirement for testimony as often as those in grand jury proceedings.

The hypothesis must be rejected. Newsmen subpoenaed in grand jury
proceedings are required to testify much more frequently than newsmen
subpoenaed by the defense in criminal proceedings. Newsmen subpoenaed by
the prosecution or in cases involving a violation of grand jury secrecy also were
required to testify more often than those subpoenaed by the defense.

Table 7 indicates that newsmen subpoenaed by the defense were required
to testify in only 15.8% of those cases, compared to 60.9% of grand jury
proceedings, 61.5% of cases in which the newsman was subpoenaed by the
prosecution, and 50.0% of cases involving a violation of grand jury secrecy.
Newsmen received favorable decisions in 84.2% of cases in which they were
subpoenaed by the defense, compared to 39.1% of cases in which they were
subpoenaed by a grand jury.

Initially it appears that Justice Stewart’s concern about state and federal
authorities attempting to annex the press as "an investigative arm of
government" was well-founded.” Certainly the Sixth Amendment guarantee of
compulsory process for criminal defendants has not resulted in a requirement for
testimony by media witnesses. On the other hand, the Supreme Court’s decision

in Branzburg v. Hayes has resulted in a requirement for testimony by media

101
witnesses when subpoenaed to testify in grand jury proceedings or by the
prosecution.

Shortly after the U.S. Supreme Court’s decision in Branzburg v. Hayes, a
case similar to Branzburg 0. Pound34 came before the Maryland Court of Special
Appeals.” Responding to the newsman’s claim that the constitutional guarantees
of free press and free speech were violated by compelling disclosure, the court
stated:

The appellant contends that where, as here, a newsman is engaged

in preparation of a series of articles dealing with illicit use of

drugs by young people, and where sources of information may only

be ascertained through observation of those who might become

sources while engaged in illegal drug practices, it violates the free

press and free speech guarantee of the federal and Maryland

constitutions to compel a reporter to disclose the identity of a

source, some of whose activities he has described in a newspaper

article but whose identity he has fully protected. That no such

violation of the federal constitutional guarantees exists in such

circumstances has now been made clear by the Supreme Court of

the United States in Branzburg v. Hayes . . 36

Most courts dealing with the question of whether a newsman must testify
when subpoenaed by a grand jury have responded in the afﬁrmative.” They
follow Justice White’s lead in Branzburg v. Hayes:

On the records now before us, we perceive no basis for holding that

the public interest in law enforcement and in ensuring effective

grand jury proceedings is insufﬁcient to override the consequential,

but uncertain burden on news gathering that is said to result from

insisting that reporters, like other citizens, respond to relevant

questions put to them in the course of a valid grand jury

investigation or criminal trial.”

Because Branzburg v. Hayes was a Supreme Court decision, other courts feel
compelled to follow the narrow holding, that newsmen must appear to testify
before grand juries, at the very least. However, in other contexts, courts are
applying Justice Stewart’s three-part test to determine when newsmen must

testify.

102

Subpoenas by state and federal authorities have been limited. In the 20
years covered by the study, only 28 subpoenas for media witnesses were issued
in grand jury proceedings, compared to 87 subpoenas issued by criminal
defendants. Prosecutors subpoenaed 17 media witnesses. Only ﬁve newsmen
were subpoenaed to testify about violations of grand jury secrecy.

Little difference was noted between decisions in state and federal courts
in criminal proceedings. In 64 state cases involving defense subpoenas, 75.0%
were decided in the media’s favor and 14.1% were not. In 23 federal cases
involving defense subpoenas, 69.6% of the decisions were favorable for the media
and 13.0% were unfavorable. In 20 state cases resulting from grand jury
subpoenas, 36.8% were decided in favor of the media and 47.4% were decided
unfavorably for the media. The media were less successful in federal court cases
resulting from grand jury subpoenas. In eight cases, only 25.0% were decided
favorably for the media, 50.0% were decided unfavorably, and 25.0% were split
decisions. Of the 34 newsman’s privilege cases arising from federal court
criminal proceedings, only 10 or 29.4% involved subpoenas by government
authorities. Of the 113 newsman’s privilege cases arising from state court
criminal proceedings, 39 or 34.5% involved subpoenas by government authorities.

A number of reasons may account for the scarcity of newsman’s privilege
cases resulting from subpoenas by government authorities. Newsmen may not
be pursuing investigative reporting to the extent they did during the 1960’s and
1970’s. Instead, they may be relying on governmental investigative agencies for
information on criminal activity. If this is true, little information not available
elsewhere would be obtained by subpoenaing newsmen.

Perhaps the part of Justice Stewart’s test requiring proof of no alternative

sources has caused government agencies to conduct more exhaustive

 

 

 

103
investigations before asking for newsmen’s help. Also, the Attorney General’s
guidelines may be working as intended to decrease the number of subpoenas
issued to newsmen.39 The guidelines state that subpoenas are to be served on
journalists only as a last resort, and then only with the attorney general’s
approval.

In several of the early privilege cases, newsmen were subpoenaed to
appear before grand juries because they had witnessed individuals making or
using drugs."0 The news stories in the cases dealt with marijuana use. Today,
drug stories do not focus on the use of marijuana: the drug is cocaine or
"crack". While marijuana use may have been accepted by a large segment of
society, cocaine use certainly is not. Illegal drug manufacturing and sales is big
business today, and those involved are unlikely to invite a journalist to report on
their activities. Newsmen will probably not be receiving conﬁdential information
from crack dealers.

Early privilege cases frequently involved conﬁdences from counter-culture
groups. Both Caldwell and Pappas were concerned about their relationships
with dissident groups in Branzburg v. Hayes.41 In the early 1970’s, the Vietnam
War was an ongoing source of dissension among millions of Americans. The
civil rights movement, which had erupted during the 1960’s, remained an
important focus of news stories. Now, the Vietnam War is over and many of the
dissident groups have disbanded or been absorbed into the mainstream.
Developing delicate relationships with underground groups to insure that their
stories are communicated to the public is no longer a concern newsmen
frequently face.

Recent newsman’s privilege cases resulting from subpoenas by government

authorities have usually involved serious crimes other than drug use or sales.“2

 

 

 

104
If no alternative source for the information exists, newsmen can be expected to
be forced to testify if called before a grand jury or subpoenaed by the
prosecution. Newsmen can take comfort in knowing that subpoenas by
government authorities have been rare.
Recognition of the Newsman’s Privilege in the Courts

The newsman’s privilege was recognized in 268 or 81.0% of the 331 cases
coded. In only 17 or 5.1% of the cases was the privilege rejected and 46 or
13.9% of the cases did not specify whether or not the privilege was recognized.

Of course, recognition of the newsman’s privilege does not necessarily
mean a result favorable for the media. Table AIII-15 shows that only 170, or
67.2%, of the 253 cases in which the newsman’s privilege was recognized
resulted in favorable decisions for the media. The media received an
unfavorable decision in 47 or 18.6% of the cases in which the newsman’s
privilege was recognized. Therefore, courts that recognized the newsman’s
privilege found reasons for deciding the case unfavorably for the media in certain
circumstances. Courts may have applied Justice Stewart’s three-part test and
found that the newsman’s testimony was still required. Obviously, almost all
courts have regarded the newsman’s privilege as qualiﬁed, not absolute.

Table AIII-14 summarizes data for recognition of the newsman’s privilege
in the courts for 1969 through 1988. One trend is fairly obvious from viewing
the table: courts are recognizing the newsman’s privilege in a higher percentage
of cases as the years pass. In 1972, the year of the decision in Branzburg v.
Hayes, the newsman’s privilege was speciﬁcally recognized in only three of seven
cases, or 42.9%. In 1987, the newsman’s privilege was recognized in 21 of 22
cases, or 95.5%.

The percentage of cases in which the newsman’s privilege was recognized

105
would probably be even higher if cases in which recognition was not speciﬁed
were included. Table AIII-15 shows that 22, or 56.4%, of the 39 cases in which
recognition was not speciﬁed resulted in favorable decisions for the media.
Although some opinions do not explicitly state that a newsman’s privﬂege was
recognized, the assumption can safely be made in most cases decided favorably
for the media.

Not surprisingly, in the 17 cases in which the newsman’s privilege was
not recognized, the media received no favorable decisions. Sixteen or 94.1% of
the cases resulted in unfavorable decisions for the media and one or 5.9%
resulted in a split decision.

Bases for Claims and Decisions

Newsmen used a variety of bases for claiming the privilege not to disclose
sources and information in the cases studied. Judges addressed similar bases
when deciding newsman’s privilege cases. The coding sheet allowed as many as
three bases for claiming the privilege and three bases for deciding the case.
Most newsmen used no more than three bases for claiming the privilege and
most judges referred to no more than three bases for deciding the privilege. The
bases were analyzed as though each stood alone, although often more than one
basis for claiming the privilege or for making the decision was used in a case.

Table AIII-16 shows the distribution of bases for claiming the newsman’s
privilege for the study years. In the 331 cases, 462 bases for claiming the
privilege were coded. In 110 of the 331 cases, or 33.2%, no basis for claiming
the newsman’s privilege was speciﬁed.

The First Amendment was the basis for the newsman’s privilege most
often claimed. In 331 cases, the First Amendment was used 175 times, or in

52.9% of the cases. The statutory basis for claiming the newsman’s privilege

 

106
appeared second in frequency, with 103 cases or 31.1%. The state constitutional
basis was also used often. Fifty-nine of the 331 cases, or 17.8%, referred to a
state constitutional basis for the claim.

The decision resulting from the use of each basis for the newsman’s
privilege claim was of particular interest. However, the highest percentage of
decisions favorable to the media was received when the basis for the claim was
not speciﬁed in the court’s opinion.

The second highest percentage of decisions favorable to the media
occurred when state common law was used as the basis for the newsman’s
privilege claim. Florida is the only state with a strong tradition of recognizing a
common law basis for the newsman’s privilege.” When state cases alone were
analyzed, decisions based on state common law increased from 5.6% to 17.0%
with the inclusion of Florida. Thus, use of state common law as the basis for
claiming the newsman’s privilege in any other state would probably not result in
a favorable decision as often as it might appear.

The federal common law basis for the newsman’s privilege claim resulted
in favorable decisions in three of ﬁve cases, or 60.0%. Ten of the twelve federal
circuits recognize a newsman’s privilege based on the First Amendment or on
federal common law.“ Table 3 indicates that only 41.4% of cases that reach the
U.S. Circuit Courts were decided favorably for the media, but 64.6% of the U.S.
District Court cases resulted in decisions in the media’s favor.

Cases in which the statutory basis for the newsman’s privilege was
claimed resulted in favorable decisions in 51 of 98 cases, or 52.0%. Apparently,
the existence of a shield law in the forum state does not dictate a favorable
decision for the newsman subpoenaed to testify. The percentage of favorable

decisions in cases where newsmen claimed protection under the state shield law

 

 

 

107
was less than the overall percentage of 58.0% of favorable decisions.

Most state constitutions contain a section with a content similar to that of
the First Amendment. However, claiming a newsman’s privilege based on the
provisions of the federal or state constitutions did not result in favorable
decisions in the courts. Federal and state constitutional bases resulted in 49.1%
and 47 .4% favorable decisions, respectively. Obviously, standing alone, a
newsman’s privilege claim with a constitutional basis will not insure a decision
favorable to the media.

Table AIII-18 summarizes the distribution of bases for decisions for the
study years. Again, three bases for the court’s decision were allowed, resulting
in 475 decision bases in 331 cases. In only 44 of the 331 cases, or 13.3%, was
the basis for the decision not speciﬁed.

The basis for decision cited most frequently was the First Amendment.
In 180 cases, or 54.4% of the 331 cases, the First Amendment was cited as one
of the bases for the decision. Second in frequency was the statutory basis for
deciding the case, with 100 cases or 30.2% of the 331 cases. Next was federal
common law with 49 cases, or 14.8%. Opinions cited state common law as the
basis for decision in 52 cases, or 15.7%, and a state constitution in 43 cases, or
13.0%, of the 331 cases.

The distribution of decisions for the various decision bases is summarized
in Table AIII-20. The state common law basis for decision resulted in the
highest percentage of favorable decisions. Of 47 cases in which the state
common law basis for decision was used, 42 or 89.4% were decided favorably for
the media. However, because Florida is the only state with a strong common
law tradition of recognizing the newsman’s privilege, most cases in this category

were probably heard in Florida.

 

 

 

 

108

Federal and state constitutional bases for the decision resulted in 63.2
and 72.5% favorable decisions, respectively. Courts using a constitutional basis
for their decision apparently accepted a privilege grounded in the constitutional
guarantees of a free press. To determine the strength of that privilege, most
courts applied Justice Stewart’s three-part balancing test.

When the court’s decision was based on a newsman’s privilege statute,
favorable decisions resulted in 52 of 97 cases, or 53.6%. Newsmen should be
aware that although newsman’s privilege statutes offer some protection to
newsmen refusing to disclose sources or information, the extent of the protection
depends heavily on the language of the statute and the courts’ interpretation of
the statute.“5

Of the 47 cases in which federal common law was a basis for decision, 27
or 57.4% were decided favorably for the media. Although ten of twelve federal
circuits recognize a newsman’s privilege, it is certainly not an absolute privilege.
Again, newsmen should be aware that most federal courts apply Justice
Stewart’s three-part test,“ but often use of the test results in a requirement for
disclosure.

Recommendation

When subpoenaed, newsmen can expect courts to recognize a privilege for
them not to disclose conﬁdential sources and information. The basis for *
recognition of that privilege will vary from court to court. However, newsmen
should always rely on a constitutional basis for the privilege, as well as any
other bases that may be available. Courts using a constitutional basis for their
decision in a newsman privilege case often reach a decision favorable for the
media. Constitutional bases will override other statutory, common law, or public

policy considerations.

 

 

109

At the federal level, a common law tradition of recognizing a newsman’s
privilege grounded in the First Amendment has developed. Most circuits use
Justice Stewart’s three-part test to determine when a newsman must testify.
However, courts still use the narrow holding of Branzburg v. Hayes to refuse
newsmen a privilege from disclosure when they are subpoenaed by grand juries,
the prosecution, or in cases involving violation of grand jury secrecy.

Courts should recognize a privilege for newsmen not to reveal conﬁdential
sources and information based on the First Amendment. The values that
underlie the free press clause“ of the First Amendment are inherent to the
functioning of a democracy. The right to disseminate information implies a
concurrent right to gather information. Without a privilege to gather news from
conﬁdential as well as non-conﬁdential sources, without fear of required
revelation of sources in all but the most essential of circumstances, First
Amendment rights are unnecessarily restricted. Policy that limits the ﬂow of
information to the public should be allowed only when an overriding competing
interest of constitutional magnitude exists.

The newsman’s privilege should serve the purpose of expanding the
information available to the public from sources that would otherwise not
provide information. Non-conﬁdential sources and information should not be
protected. Although subpoenas to testify about or produce non-conﬁdential
information may be inconvenient for newsmen, such subpoenas do not interfere
with the central purpose of the privilege. While the privilege belongs to the
newsman alone, it is not intended for his beneﬁt, but rather for the good of the
public.

The "chill" that occurs when newsmen are forced to reveal conﬁdential

sources and information causes potential informants to withdraw. The "chill"

 

 

 

1 10
that occurs when newsmen are compelled to reveal non-conﬁdential sources and
information is self-imposed. N ewsmen may be engaging in protected First
Amendment activities, but they have no monopoly on First Amendment rights.
When they procure information that does not require conﬁdentiality, they should
have no more right to protect that information than do ordinary citizens.
Otherwise, the potential for abuse of the privilege becomes too great."

Courts have adopted Justice Stewart’s three-part test to determine when
newsmen should be forced to testify. The test should continue to be used to
determine when newsmen should be compelled to reveal conﬁdential sources and
information. However, courts should be more consistent in their application of
the test. Each of the three parts of the test should be strictly construed.

"Need" for a newsman’s testimony should indicate that the outcome of the case
hinges upon the information the newsman can provide. "Relevance" should refer
to testimony that is directly related to the material issue in the case. And "lack
of alternative sources" should require proof that other possible sources for the
information have been exhausted.

A privilege grounded in the First Amendment and implemented by the
courts using a rigid application of Justice Stewart’s three-part test provides the
best protection for newsmen. The free speech guarantees of state constitutions
should be used to strengthen the privilege in the states. Courts should interpret
state shield laws to amplify the privilege, not to restrict it.

Suggestions for Further Research

The following are suggestions for further work on the newsman’s privilege
issue:

1) Much evidence exists to support a difference in the treatment of conﬁdential

and non-conﬁdential material. However, the conﬁdentiality of the source or

 

 

 

 

111
information subpoenaed was not coded for in this study. Knowing how courts
treat conﬁdential and non-conﬁdential material differently could resulted in a
savings of time, effort, and money when material is subpoenaed.
2) Courts’ implementation of Justice Stewart’s three-part test should be
analyzed. Cases using the test should be coded to determine if one of the three
parts--need, relevance, and alternative sources--is a deciding factor in decisions.
Also, it would be informative to learn how protection for newsmen changes when
the test is applied in various types of criminal and civil cases.
3) A content analysis of state shield laws should be made. The statutes should
be coded for various factors, including the class of individuals protected, the type
of material protected, and under what circumstances the privilege can be
revoked. Then, all cases for those states with shield laws should be analyzed to
determine how courts have interpreted the statutes. Analyzing state shield laws
and cases would provide newsmen guidance when lobbying for revision of

existing shield laws, when writing new laws, and when subpoenaed.

 

 

112

Endnotes
1In almost 45% of cases in which audiotape was subpoenaed, videotape was also
requested. Table AIII-6 indicates that the distribution of decisions for these two
types of materials is similar. Thus, they are treated together for purposes of
this analysis.
2645 S.W.2d 30, 33 (Mo. Ct. App. 1982).
3687 S.W.2d 736 (Tex. Crim. App. 1984), cert. denied, 106 8.0. 308 (1985).
4Id. at 739.
I‘Del. Code Ann. tit. 10 §4320(5).
°R.I. Gen. Laws §9-19.1-1.
’N.Y. Civ. Rights Law §79-h (McKinney 1976 & Supp. 1988) states, in part:
"Notwithstanding the provisions of any general or speciﬁc law to the contrary, no
professional journalist or newscaster employed or otherwise associated with any
newspaper, magazine, news agency, press association, wire service, radio or
television transmission station or network, shall be adjudged in contempt by any
court, the legislature or other body having contempt powers, nor shall a grand
jury seek to have a journalist or newscaster held in contempt by any court,
legislature or other body having contempt powers for refusing or failing to
disclose any news or the source of any such news coming into his possession in
the course of gathering or obtaining news for publication or to be published in a
newspaper, magazine, or for broadcast by a radio or television transmission
station or network, by which he is professionally employed or otherwise
associated in a news gathering capacity.
899 A.D.2d 161, 472 N.Y.S.2d 310 (App. Div. 1984).
999 A.D.2d 161, 163, 472 N.Y.S.2d 310, 312 (App. Div. 1984).
10505 N.Y.S.2d 477 (N.Y.A.D. 1986).
1169 A.D.2d 693, 702, 419 N.Y.S.2d 988, 997 (1979).
12New York Times v. Sullivan, 376 U.S. 254 (1964).
13Gertz v. Welch, 418 U.S. 323 (1974).
1‘Gertz v. Welch, 418 U.S. 323 (1974).
16120 NH. 383, 386, 415 A.2d 683, 686 (1980).
16Id.

1"Id.

 

113
1869 A.D.2d 693, 702, 419 N.Y.S.2d 988, 997 (1979).
19See Monk, supra Chapter I, note 10, at 38.

20See Okla. Stat. Ann. tit. 12, §2506(B)(1980); Or. Rev. Stat. §44.530(3)(1983);
R.I. Gen. Laws §9-19.1-3(b)(1985); Tenn. Code Ann. §24-1-208(b)(1980).

21Ark. Stat. Ann. §16-85-510 (1987).

”See La. Rev. Stat. Ann. §45:1454 (West 1982): "If the privilege granted herein
is claimed and if, in a suit for damages for defamation, a legal defense of good
faith has been asserted by a reporter or by a news media with respect to an
issue upon which the reporter alleges to have obtained information from a
conﬁdential source, the burden of proof shall be on the reporter or news media
to sustain this defense."

”See Privileges and Immunities--Reporters (Public Act 84-398), ch. 110, para. 8-
903, 1985 Ill. Laws 437, amending Ill. Ann. Stat. §8-903 (Smith-Hurd 1984);
Minn. Stat. Ann. §595.025 (1), (2) (West Supp. 1988).

24264 Ark. 133, 569 S.W.2d 115 (1978).
”640 P.2d 959 (Okla. 1981).
”13 Med. L. Rptr. (BNA) 1618 (La. Ct. App. July 7, 1986).

”479 F.Supp. 523, 528-529 (E.D.N.Y. 1979). The law that must be followed by
the lower courts within a jurisdiction is contained in the applicable constitutions,
legislation, and decisions of the highest court of the jurisdiction. At the federal
level, this includes the U.S. Constitution, the Acts of Congress, and the decrsrons
of the U.S. Supreme Court. The decisions of the Circuit Courts of Appeal must
be followed by lower courts within each circuit. At the state level, the law
includes the state constitution, the enactments of the state legislature, and the
written decisions of the highest court of appeal. Federal law takes precedence
over state law. Thus in Branzburg v. Hayes, Justice White left state legrslatures
free, within First Amendment limits [emphasis added], to determine the proper
statutory response to the newsman’s privilege issue in their respective states.
Justice White also noted: [W]e are powerless I11:0 bar state ctpilzrtés from t

res ondin in their own wa and construing t eir own cons u ions so as o
recggnizega newsman’s privilege, either qualiﬁed or absolute." 408 U.S. 665, 706

(1972).

”See inﬁ'a at 107.

2”See Osborn, supra Chapter I, note 21, at 79.

3°Id.

31As The Associated Press Stylebook and Libel Manual states:

Companies are naturally sensitive to news stories that reﬂect on
their business prospects and practices. There have been many

114

such news stories in the ﬁeld of environmental and consumer
protection. The issues are complicated, and the legal aspects not
always clear. Formal charges and allegations should be reported
precisely and fairly. The Associated Press Stylebook and Libel
Manual at 274.

32See supra Chapter VI, at 94-96.
”See supra Chapter II, note 62 and accompanying text.
3"See supra Chapter 11, note 34 and accompanying text.

”Lightman v. State, 15 Md. App. 713, 294 A.2d 149 (Ct. Spec. App. 1972), aﬁ’d
per curiam, 266 Md. 550, 295 A.2d 212, cert. denied, 411 U.S. 951 (1973).

”Id. at 15 Md. App. 721, 294 A.2d 157.

37Lewis v. United States, 517 F.2d 236, 238 (9th Cir. 1975); WBAL-TV Division,
The Hearst Corporation v. Maryland, 300 Md. 233, 235-237, 477 A.2d 776, 778-
780 (1984); Tofani v. State, 297 Md. 165, 171-175, 465 A.2d 413, 419-423 (Ct.
App. 1983); Knight-Bidder Broadcasting, Inc. v. Greenberg, 511 N.E.2d 1116,
1121 (1987); Andrews v. Andreoli, 92 Misc.2d 410, 414, 400 N.Y.S.2d 942, 946
(Sup. Ct. Onondaga Co. 1977).

38408 U.S. 665, 690.

”See supra, Chapter I, note 8.

”Branzburg v. Pound, 461 S.W.2d 345 (Ky. 1970); Lightman v. State, 15 Md.
App. 713, 294 A.2d 149 (Ct. Spec. App. 1972), a/fd per curiam, 266 Md. 550, 295
A.2d 212, cert. denied, 411 U.S. 951 (1973); State v. Buchanan, 436 P.2d 729

(Ore. 1968).
“See supra Chapter II, at 15-16.

42Knight-Bidder Broadcasting, Inc. v. Greenberg, 511 N.E.2d 1116, 1121
(1987)(homicide); WBAL—TV Division, The Hearst Corp. v. Maryland, 300 Md.
233, 477 A.2d 776 (1984)(homicide); Tofani v. State, 297 Md. 165, 465 A.2d 413

(Ct. App. 1983)(sexual assault).

”See supra Chapter V, at 63-66.

4‘See supra Chapter III, note 2 and accompanying text. Generally, federal courts
used the three-part test proposed by Justice Stewart to determrne when

newsmen will be compelled to testify.

”See supra Chapter VI, at 91-92.

46See United States v. Caporale, 806 F.2d 1487 (11th Cir. 1986); Miller v.
Transamerican Press, Inc., 621 F.2d 721 (5th Cir.), reh. denied, 628 F.2d 932
(1980), cert. denied, 450 U.S. 1041 (1981); Zerrilli v. Smith, 656 F.2d 705 (DC.
Cir. 1981); Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (lst

115

Cir. 1980); United States v. Criden, 633 F.2d 349 (3d. Cir. 1980), cert. denied
sub nom., Schaffer v. United States, 449 U.S. 1113 (1981); Silkwood v. Kerr-
McGee Corp., 563 F.2d 433 (10th Cir. 1977); Baker v. F&F Investment, 470 F.2d
778 (2d Cir. 1972), cert. denied, 411 U.S. 966 (1973); Gulliver’s Periodicals, Ltd.,
v. Chas. Levy Circulating Co., 455 F. Supp. 1197 (NB. Ill. 1978).

"See In re Avila, 206 N.J. Super. 61, 501 A.2d 1018 (Super. Ct. App. Div. 1985).
Avila was the publisher, owner, and advertising salesman of the Spanish-
language weekly newspaper, Avance, in Union City, New Jersey. When
subpoenaed to testify before a grand jury about his ﬁiends’ organized crime
activities, he refused to respond to questions. Avila invoked the state shield law
and First Amendment of the U.S. Constitution. The grand jury eventually
relented, realizing that the almost absolute New Jersey shield law afforded Avila
powerful protection. According to Avila, his social life was as much a part of his
journalistic endeavors as feature stories he wrote or political positions he took in
editorials. Avila said: "They all have one purpose: to obtain information, ideas
and sources in order to prepare and disseminate news and opinion. Naturally,
while all of the information I obtain is not always printed, my activities are
designed to insure that I have the widest possible network of contact--both
conﬁdential and non-conﬁdential--in the community so I can ’keep my ear to the
ground.” Quoted in Garneau, Is the Shield Law vulnerable to abuse?, Editor &

Publisher, October 11, 1986.

APPENDIX I
CODING SHEET

Appendix I contains the coding sheet used to code cases for this study.

l l

 

116

CODING SHEET

1. Case Designation:

 

 

2. Jurisdiction of Court:

 

1 = U.S. Supreme Court
2 = U.S. Circuit Court of Appeals
3 = U.S. District Court
4 = State Supreme Court
5 = State Court of Appeals
6 = State Lower Court
7 = Other; specify:
If 2 or 3 go to question 3.
If 4, 5, or 6 go to question 4.
If 1 or 7 go to question 5.

3. Specify the federal circuit in which the proceeding occurred: . _

4. Specify the state in which the proceeding occurred:

 

5. Year: __

6. Type of proceeding in which issue of newsmen or media privilege
ﬁrst arose: __

criminal
civil

1
2

If 1 go to question 5.
If 2 go to question 8.

7. Reason for issue of subpoena:

0 not speciﬁed
1 grand jury proceeding

2 = subpoena by defense

3 = subpoena by prosecution
4

5

= violation of grand jury secrecy
= other; specify:

 

117

If 1 go to question 8.
If 2 go to question 9.
If 3, 4, or 5 go to question 13.

8. Reason for subpoena in grand jury proceeding:

0 = not speciﬁed
1 = witness to a crime
2 = other evidence of a crime
3 = accused of a crime
Go to question 13.

9. Reason for subpoena by defense:

not speciﬁed
exculpatory evidence

= impeaching evidence

- evidence of prejudicial trial or pretrial publicity
= prosecutorial or investigative misconduct

sixth amendment right

= other; specify:

QOln-POONI-‘O
I

 

Go to question 13.
10. Status of media in civil proceeding:

1
2

ﬁrst party
third party

If 1 go to question 11.
If 2 go to question 12.

11. Type of proceeding (media a party):

0 = not speciﬁed
1 = libel

2 = privacy

3 = other; specify:

 

Go to question 13.

ll

 

118

12. Type of proceeding (media not a party):

= not speciﬁed
government proceeding
= federal cause of action
state cause of action
other; specify:

I-FCDNHC

13. Type of evidence sought from subpoena:

0 = not speciﬁed

1 = source

2 = information

3 = source and information

14. Type of material(s) subpoenaed:

0 = none —-
1 = notes relating to written material __
2 = unpublished photographs, negatives, proof sheets

3 = audio tape recordings

4 = video tape recordings

5 = transcript of radio or television broadcast

6 = ﬁnished work product

7 = not speciﬁed

8

 

other; specify:

15. Type of party subpoenaed: _

0 = not speciﬁed

1 = individual(s)

2 = media organization

3 = both individual(s) and media organization
If 0 go to question 20.
If 1 go to question 16.
If 2 go to question 19.

If 3 go to question 16.

119

16. Type of employment of subpoenaed individual(s):

0 = not speciﬁed —_
1 = non-management
2 = management

17 . Type of non-management employment of subpoenaed individual(s):

free-lance journalist
= other; specify:

0 = not speciﬁed ——
1 = print journalist —
2 = photojournalist

3 = radio broadcast journalist

4 = television broadcast journalist

5 = television cameraman

6 = custodian of photographic records

7 = author

8

9

 

18. Type of management employment of subpoenaed individual(s): __

not speciﬁed
owner
publisher
newspaper or magazine editor
television news director

radio news director

radio program producer
television program producer
other; specify:

mummpwwwo
II

 

19. Type of media organization:

= not speciﬁed
newspaper
magazine or publishing company
radio station or network

television station or network

news or wire service

news or feature syndicate

cable or community antenna television
other; specify:

mQQCﬁtht-‘O
II

 

 

120

20. Primary focus of material(s) that resulted in subpoena:

not speciﬁed
government
= politics
business/consumers

accident (vehicular, ﬁre, etc.)
crime

= social injustice (discrimination)
= environment
= other; specify:

mx'IQOIAOONt-‘O
llllll

 

21. Basis for reporter privilege claim:

not speciﬁed
ﬁrst amendment
ﬁfth amendment
state constitutional
= state common law
statutory

federal common law
= other; specify:

xicncnascemp-to

 

22. Did the court recognize a qualiﬁed or absolute reporter privilege?

0 = not speciﬁed
1 = yes
2 = no

23. What was the basis for recognizing or not recognizing
a reporter privilege?

= not speciﬁed
= ﬁrst amendment

= ﬁfth amendment

= state constitutional
state common law

= statutory

= federal common law
= other; specify:

qmcnuhoowl—Io
ll

 

121

24. Decision:

UIPODNH

= other; specify:

favorable to press
unfavorable to press
split decision
remanded

 

 

 

 

study.

 

APPENDIX II
OPERATIONAL DEFINITIONS

Appendix II contains the operational deﬁnitions used for coding in this

 

 

 

 

122

OPERATIONAL DEFINITIONS

1. Case Designation--citation of the case as it would appear in A Uniform System of Citation
(14th edition).

2. Jurisdiction of the court-the limits or territory within which a court has the authority to in-
terpret and apply the law, usually obvious by looking at the case designation.

Federal:

1. U.S. Supreme Court

2. U.S. Circuit Court of Appeals
3. U.S. District Court 7
State:

4. Supreme Court

5. Court of Appeals

6. Lower Court

7. Other--if a court other than those listed above rendered the decision, specify the juris-
diction of that court.

3. Specify the federal circuit in which the proceeding occurred-the federal circuit in which the
proceeding was heard (one of eleven).

4. Specify the state in which the proceeding occurred-the state in which the proceeding was
heard (one of ﬁfty).

5. Year--date of decision of highest court of appeal.

6. Type of proceeding in which issue of newsmen or media privilege ﬁrst arose—either criminal
or civil. If the type of proceeding is unclear, choose "not speciﬁed."

0. not speciﬁed
1. criminalwrelating to the prosecution of one accused of committing a crime.

2. civil--relating to private rights and to remedies sought by action or suit distinct from
criminal proceedings.

For purposes of this coding sheet, subpoena will refer to any demand for appearance
of media witnesses and for production of materials held by them or media organiza-
tions, whether or not the opinion refers to these demands as subpoenas.

 

 

 

 

 

123

7. Reason for issue of subpoena--reason for subpoena at criminal proceeding. If it is unclear
why the subpoena was issued, choose "not speciﬁed."

0. not speciﬁed.

1. grand jury proceeding-proceeding by a jury whose responsibility it is to decide whether
probable cause exists to warrant the trial of an accused for a crime.

2. subpoena by defense--subpoena by defense during trial or pretrial proceedings.

3. subpoena by prosecution--subpoena by prosecution during pretrial and/or trial proceed-
ings.

4. violation of grand jury secrecy--subpoena because of publication of details of grand jury
proceeding.

5. otheruif the reason for issue of subpoena is not one of those listed above, specify the
reason.

8. Reason for subpoena in grand jury proceeding-reason for subpoena at grand jury proceed-
ing. If it is unclear why the subpoena was issued, choose "not speciﬁed".

0. not speciﬁed.

1. witness to a crime--a proceeding in which information is sought from an individual who
may have witnessed criminal activity.

2. other evidence of a crime--a proceeding in which information is sought from an individual
who may have evidence of criminal activity but did not witness criminal activity.

3. accused of a crime-the media individual or organization is accused of a criminal offense.

9. Reason for subpoena by defense--reason media was requested to appear or produce materials
by defense. If it is unclear why the subpoena was issued, choose "not speciﬁed".

0. not speciﬁed.

1. exculpatory evidence-subpoena to obtain evidence relevant to the defendant’s in-
nocence.

2. impeaching evidence--subpoena to obtain evidence which will contradict a prosecution
witness’s testimony.

3. evidence of prejudicial trial or pretrial publicity--subpoena to obtain evidence of prejudi-
cial trial or pretrial publicity in the defendant’s case.

4. prosecutorial or investigative misconduct--subpoena to obtain evidence of improper be-
havior or investigative techniques used by the prosecution or investigative ofﬁcers.

 

 

 

 

124

5. sixth amendment right-subpoena issued without reference to speciﬁc evidence but
based on the sixth amendment right to compulsory process.

6. other--if the subpoena was issued for a reason other than those listed above, specify the
reason.

10. Status of media in civil proceeding-whether or not media is a party in a civil case.

1. ﬁrst party-~subpoena issued in a civil action in which a media organization or employee

is a party.

2. third party-subpoena of individual in a civil action in which neither a media organiza-
tion or employee is a party.

11. Type of proceeding (media a party)--type of civil action in which media is a ﬁrst party and
newsmen or media privilege issue ﬁrst arose. If it is unclear what type of civil action this is,
choose "not speciﬁed".

0. not speciﬁed.

1. libel--action in which the individual or media organization is accused of publishing false,
defamatory material.

2. privacy--action in which the individual or media organization is accused of invading an
individual’s privacy.

3. other--if the type of civil action to which the media is a party is other than those listed
above, specify the type of civil action.

12. Type of proceeding (media not a party)--type of civil action in which media is not a party
and newsmen or media privilege issue ﬁrst arose. If it is unclear what type of civil action this
is, choose "not speciﬁed".

0. not speciﬁed.

1. government proceeding--civil action in which one party is a federal, state, or local govern-
ment or regulatory agency.

2. federal cause of action--civi1 action involving a federal issue, i.e. civil rights or antitrust,
in which the government is not a party.

3. state cause of action--civil action involving a state issue, whether in state or federal
court, in which the government is not a party.

4. other--if the type of civil action to which the media is not a party is other than those
listed above, specify the type of civil action.

13. Type of evidence sought from subpoena-~whether the type of evidence sought is the source
of information, the information itself, or both. If it is unclear what type of evidence was sought
from the subpoenaed individual, choose "not speciﬁed".

 

 

 

125

0. not speciﬁed.

1. source--only the identity of the individual who supplied information is sought.

2. informationuonly information supplied by the conﬁdential source is sought.

3. source and information-both 1 and 2 are sought.
14. Type of material(s) subpoenaed--work product created by newsman or media organization-
al which is object of a subpoena. If the court opinion indicates that a particular type of material
was subpoenaed, it should be selected here. If it is unclear what type of material was sub-
poenaed, choose "not speciﬁed." If no material was subpoenaed, choose "none." If the type of
material subpoenaed is other than those listed, specify the type of material. Ifmore than one

type of material was subpoenaed, more than one answer is possible.

0. none.

1. notes relating to written material--interview and other notes, documents, records, forms,
etc.

2. unpublished photographs, negatives, proof sheets.
3. audio tape recordings.

4. video tape recordings.

5. transcript of radio or television broadcast.

6. ﬁnished work product only.

7. not speciﬁed.

8. other.

15. Me of party subpoenaed-whether the party subpoenaed is an individual, a media or-
ganization, or both. If it is unclear what type of party was subpoenaed, choose "not speciﬁed."

0. not speciﬁed.

1. individual(s).

2. media organization.

3. both individual(s) and media organization.
16. Type of employment of subpoenaed individual(s)-whether or not the subpoenaed in-
dividual(s) was employed in a management capacity. If the court opinion indicates the type of
employment, it should be selected here. If it is unclear whether the subpoenaed individual was

employed in a management or non-management capacity, choose "not speciﬁed." If more than
one individual was subpoenaed, more than one answer is possible.

 

 

 

126

O. none--subpoena was not issued for individual, but rather for media organization.
1. not speciﬁed.

2. non-managementuthe subpoenaed individual is employed in one of the occupations
listed in Operational deﬁnition 16.

3. management--the subpoenaed individual is employed in one of the occupations listed in
operational deﬁnition 17.

17. Type of non-management employment of subpoenaed individual(s)-~occupation individual
was pursuing at the time knowledge or material which is object of subpoena was acquired. If
the court Opinion indicates the type of employment of the subpoenaed individual, it should be
selected here. If the type of employment of the subpoenaed individual is unclear, choose "not
speciﬁed." If the type of non-management employment of the subpoenaed individual is other
than those listed, specify the type. If more than one individual was subpoenaed, more than one
answer is possible.

0. not speciﬁed.

1. printjournalist.

2. photojournalist.

3. radio broadcast journalist.

4. television broadcast journalist.

5. television cameraman.

6. custodian of photographic records.

7. author.

8. free-lance journalist.

9. other.
18. Type of management employment of subpoenaed individual(s)--occupation individual was
pursuing at the time knowledge or material which is object of subpoena was acquired. If the
court opinion indicates the type of employment of the subpoenaed individual, it should be
selected here. If the type of employment of the subpoenaed individual is unclear, choose "not
speciﬁed." If the type of management employment of the subpoenaed individual is other than

those listed, specify the type. If more than one individual was subpoenaed, more than one
answer is possible.

0. not speciﬁed.

1. owner.

 

127

2. publisher.

3. newspaper or magazine editor.

4. television news director.

5. radio news director.

6. other.
19. Type of media organization--type of organization a) for which subpoenaed individual(s)
works; or b) to which subpoenaed individual supplied information; or c) which was recipient of
subpoena. If the court opinion indicates the type of media organization, it should be selected
here. If the type of media organization is unclear, choose "not speciﬁed". If the type of media
organization is other than those listed, specify the type.

0. not speciﬁed.

1. newspaper.

2. magazine or publishing house.

3. radio station.

4. television station.

5. news or wire service.

6. news or feature syndicate.

7. cable or community antenna television.

8. other.

20. Primary focus of material(s) that resulted in subpoena--the subject of the material the sub-
poenaed individual was working on when the source or information which resulted in the sub-
poena was acquired. If the court opinion indicates the subject of the subpoenaed material, it
should be selected here. If it is unclear what the subject of the material was, choose "not
speciﬁed." If the subject of the subpoenaed material is other than those listed, specify the sub-

ject.
0. not speciﬁed.
1. government.
2. politics.
3. business/consumers.

4. accident (vehicular, ﬁre, etc.).

128

5. crime.

6. social injustice.

7. environment.

8. other.
21. Basis for reporter privilege claim--basis for individual’s refusal to honor subpoena. If the
court opinion indicates the basis for the reporter privilege claim, it should be selected here. If
it is unclear on what basis the reporter privilege claim is made, choose "not speciﬁed." If the

basis for the reporter privilege claim is other than those listed, specify the basis for the claim.
More than one answer is possible.

0. not speciﬁed.
1. ﬁrst amendment-~claim based on ﬁrst amendment protection of news gathering.

2. ﬁfth amendment--claim based on ﬁfth amendment guarantees against self-incrimina-
tion.

3. state constitutional--claim based on provisions of constitution in state of occurrence or
trial.

4. state common law-~claim based on cases in state of occurrence or trial.
5. statutory--claim based on statute in state of occurrence or trial.
6. federal common law-~based on cases decided in federal courts.

7. other.

22. Did the court recognize a qualiﬁed or absolute reporter privilege?--Whether or not the court
accepted the existence of a reporter privilege. If it is unclear whether or not the court has recog-

nized a privilege choose "not speciﬁed".
0. not speciﬁed.
1. yes.

2. no.

23. Basis for decision--basis for court’s decision as to whether an individual must honor sub-
poena. If the court opinion indicates the basis for the court’s decision, it should be selected here.
If it is unclear on what basis the court’s decision was made, choose "not speciﬁed." If the basis
for the court’s decision is other than those listed, specify the basis for the decision. The deﬁni-
tions are the same as in 21 above. More than one answer is possible.

0. not speciﬁed.

 

129

1. ﬁrst amendment.
2. ﬁfth amendment.
3. state constitutional.
4. state common law.
5. statutory.
6. federal common law.
7. other.
24. Decision--outcome of case at highest level of appeal.

1. favorable to media litigant--individua1 not require to testify as to conﬁdential source or
information.

2. unfavorable to media litigant--individual required to testify as to conﬁdential source or
information or "suffer the consequences" of failure to obey the court.

3. split decision--partial disclosure of information sought from individual is required, i.e.
when in camera review of information is required by judge prior to disclosure, or when
reporter not required to reveal conﬁdential source but may not use source as part of defense

in lawsuit.

4. remanded-case remanded to lower court; ﬁnal decision not made by higher court.

5. other-~issue of reporter privilege not addressed or otherwise unable to determine
decision of court.

 

text.

APPENDIX III
SUPPLEMENTAL TABLES

Appendix III contains tables supplemental to those that appear in the

 

130

Table MILL-Distribution of Decisions by Reason for Defense Subpoena in
Criminal Case

Reason for m
Defense
83mm 1 2 3 4 5 Total
Exculpatory 7 4 1 0 0 12
Evidence 58.3 33.3 8.3 0.0 0.0 13.8
Impeaching 14 4 3 1 0 22
Evidence 63.6 18.2 13.6 4.5 0.0 25.3
Prejudicial 2 0 0 0 0 2
Publicity 100.0 0.0 O 0 0.0 0.0 2.3
Prosecutorial 9 2 0 1 0 12
Misconduct 75.0 16.7 0.0 8.3 0.0 13.8
Other 32 2 2 2 1 39
82.1 5.1 5 1 5.1 2.6 44.8
Total 64 12 6 4 1 87
73.6 13.8 6 9 4.6 1.1

1=favorable to media
=unfavorable to media

3=split decision

4=remanded

5=other

131
Table AIII-2--Distribution of Decisions by Reason for Grand Jury Subpoena

Reason for Mam
Grand Jury
Sybpmna 1 2 3 4 5 Total
Witness 1 3 1 0 0 5
to a Crime 20.0 60.0 20.0 0.0 0.0 17.9
Other Evidence 7 11 3 1 0 22
of a Crime 31.8 50.0 13.6 4.5 0.0 78.6
Accused of 0 1 0 0 0 1
a Crime 0.0 100.0 0.0 0.0 0.0 3.6
Total 8 15 4 1 O 28
28.6 53.6 14.3 3.6 0.0

1=favorable to media
2=unfavorable to media
3=sp1it decision
4=remanded

5=other

132

gable AlII-3--Distribution of Decisions by Type of Media Involvement in Civil
ase

D . .

Media Favorable Unfavorable

Imlyement to Media to Media Split Total

First Party 34 18 15 67
50.7 26.9 22.4 39.6

Third Party 73 16 13 102
71.6 15.7 12.7 60.4

Total 107 34 28 169
63.3 20.1 16.6

133

Table AIII-4--Distribution of Decisions by Reason for Civil Suit with Media a
Third Party

Reason for W
Grand Jury
Subpoena 1 2 3 4 5 Total
Government 8 0 0 0 2 10
Proceeding 80.0 0.0 0.0 0.0 20.0 8.9
Federal Cause 16 6 4 1 1 28
of Action 57.1 21.4 14.3 3.6 3.6 25.0
State Cause 44 12 9 4 0 69
of Action 63.8 17.4 13.0 5.8 0.0 61.6
Other 5 0 0 0 0 5
100.0 0.0 0.0 0.0 0.0 4.5
Total 73 18 13 5 3 112
65.2 16.1 11.6 4.5 2.7

1=favorable to media
2=unfavorable to media
3=split decision
4=remanded

5=other

 

 

 

134
Table AIII-5--Distribution of Decisions by Type of Evidence Sought in Subpoena

Decision
Type of
Eﬁdenge 1 2 3 4 5 Total
Source 48 17 7 3 1 76
63.2 22.4 9.2 3.9 1.3 23.0
Information 102 46 21 7 3 17 9
57.0 25.7 11.7 3.9 1.7 54.1
Source and 23 11 12 6 1 53
Information 43.4 20.8 22.6 11.3 1.9 16.0
Not Speciﬁed 19 1 2 0 1 23
82.6 4.3 8.7 0.0 4.3 6.9
Total 192 75 42 16 6 331
58.0 22.7 12.7 4.8 1.8

1=favorable to media
2=unfavorable to media
3=sp1it decision
4=remanded

5=other

 

 

 

135

Table AIII-6--Distribution of Decisions by Type of Material Subpoenaed

Type of
Material

Simmacd

None

Written
Notes

Photographs
Audiotape
Videotape
Transcript
Finished
Work Product

Other

Total

Favorable
to Media

91
62.3

72
67.3

13
56.5

17
48.6

21
48.8

8
61.5

1
33.3

8
50.0

231
59.8

D . . n
Unfavorable
to Media

40
27.4

17
15.9

6
26.1

7
20.0

10
23.3

0
0.0

1
33.3

6
37.5

87
22.5

Split

15
10.3

18
16.8
17 .4

11
31.4

12

27.9
38.5
33.3
12.5

68
17 .6

Total

146
37.8

107
27.7

23
6.0

35
9.1

43
11.1

13
3.4
0.8

16
4.1

386

 

136

Table AIII-7--Distribution of Subpoenas by Employment Type

N on-Management

Employment
fhm

Print journalist
Photoj oumalist

Radio broadcaster
Television broadcaster
Television cameraman
Records custodian
Author

Freelance journalist
Other

Total

Management

Employment
fhm

Owner

Publisher

Editor

TV news director

TV program producer
Other

Total

256

Number of
Smmmﬁ

4
12
19

3

3
10

51

Percent of

Nppwpppwﬁ
OOOUIPBWCCOC)

Percent of

Sﬂmmm

mm
ngﬂwﬂ
mmwwmm

i—l

 

137
Table AIII-8--Distribution of Subpoenas by Type of Media Organization

Media

Organization Number of Percent of
Time thnwnaa Salaam
Newspaper 218 63.6
Magazine 32 9.3
Radio 9 2.6
Television 63 18.4
Wire service 4 1.2
Other 17 5.0

Total 343

 

138

Table AIII-9a--Distribution of Decisions in Criminal Cases by Type of Non-
Management Employment

Type of Decision
N on-Management
1 2 3 4 5 Total

Print 61 22 7 3 0 93
Journalist 65.6 23.7 7 5 3.2 0.0 75.6
Photo 2 2 0 0 0 4
Journalist 50.0 50.0 0.0 0.0 0.0 3.3
Radio 2 0 0 0 0 2 ,
Broadcaster 100.0 0.0 0 O 0.0 0.0 1.6
Television 8 3 2 0 1 14
Journalist 57.1 21.4 14.3 0.0 7.1 11.4
Records 1 2 1 1 0 5
Custodian 20.0 40.0 20.0 20.0 0.0 4.1
Author 2 , 2 0 0 0 4

50.0 50.0 0.0 0.0 0.0 3.3
Freelance 0 1 0 0 0 1
Journalist 0.0 100.0 0.0 0.0 0.0 0.8
Total 76 32 10 4 1 123

61.8 26.0 8.1 3.3 0.8

1=favorable to media
2=unfavorable to media
3=split decision
4=remanded

5=other

 

 

 

139

Table AIII-9b--Distribution of Decisions in Civil Cases by Type of Non-
Management Employment

Type of Daisies
N on-Management

1 2 3 4 5 Total
Print 66 17 13 2 0 98
Journalist 67 .3 17.3 13.3 2.0 0.0 76.6
Photo 3 1 0 2 0 6
Journalist 50.0 16.7 0.0 33.3 0.0 4.7
Radio 2 1 0 0 0 3
Broadcaster 66.7 33.3 0.0 0.0 0.0 2.3
Television 6 0 5 0 1 12
Journalist 50.0 0.0 41.7 0.0 8.3 9.4
Records 1 1 1 0 1 4
Custodian 25.0 25.0 25.0 0.0 25.0 3.1
Author 0 0 0 1 0 1

0.0 0.0 0.0 100.0 0.0 0.8
Freelance 1 3 0 0 0 4
Journalist 25.0 75.0 0.0 0.0 0.0 3.1
Total 79 23 19 5 2 128

61.7 18.0 14.8 3.9 1.6

1=favorable to media
2=unfavorable to media
3=split decision
4=remanded

5=other

 

140

Table AIII-10a--Distribution of Decisions in Criminal Cases by Type of
Management Employment

Type of 12mm
Management
1 2 3 4 5 Total
Owner 1 1 0 0 0 2
50.0 50.0 0.0 0 0 0.0 11.8
Publisher 1 0 0 0 0 1
100 0 0.0 0.0 0 0 0.0 5.9
Newspaper or 3 4 2 0 0 9
Mag. Editor 33.3 44.4 22.2 0.0 0.0 52.9
TV Director 0 0 1 0 0 1
or Producer 0.0 0.0 100.0 0.0 0.0 5.9
Other 1 3 0 0 0 4
25.0 75.0 0.0 0.0 0.0 23.5
Total 6 8 3 0 0 17
35.3 47.1 17.6 0.0 0.0

l=favorable to media
2=unfavorable to media
3=split decision
4=remanded

5=other

 

 

141

Table AIII-10b--Distribution of Decisions in Civil Cases by Type of Management
Employment

Type of Deg'sign
Management
1 2 3 4 5 Total
Owner 1 1 0 0 0 2
50.0 50.0 0.0 0.0 0.0 5.9
Publisher 7 3 1 0 0 11
63.6 27.3 9.1 0.0 0.0 32.4
Newspaper or 4 3 1 0 2 10
Mag. Editor 40.0 30.0 10.0 0.0 20.0 29.4
TV Director 1 1 2 1 0 5
or Producer 20.0 20.0 40.0 20.0 0.0 14.7
Other 3 2 1 0 0 6
50.0 33.3 16.7 0.0 0.0 17.6
Total 16 10 5 1 2 34
47.1 29.4 14.7 2.9 5.9

1=favorable to media
2=unfavorable to media
3=split decision
4=remanded

5=other

 

 

 

 

142

Table AIII-lla--Distribution of Decisions in Criminal Cases by Type of Media
Organization

Type of Dcﬂaion
Media
W 1 2 3 4 5 Total
Newspaper 60 25 6 4 0 95
63.2 26.3 6.3 4.2 0.0 62.5
Magazine or 7 3 1 0 0 11
Pub. Co. 63.6 27.3 9.1 0.0 0.0 7.2
Radio Station 2 2 0 0 0 4
or Network 50.0 50.0 0.0 0.0 0.0 2.6
TV Station 14 6 7 2 1 30
or Network 46.7 20.0 23.3 6.7 3.3 19.7
News or 2 1 0 0 0 3
Wire Service 66.7 33.3 0.0 0.0 0.0 2.0
Other 3 5 1 0 0 9
33.3 55.5 11.1 0.0 0.0 5.9
T tal 88 42 15 6 1 152
o 57.9 27.6 9.9 3.9 0.7

1=favorable to media

2=unfavorable to media
=split decision

4=remanded

5=other

143

Table AIII-lIb--Distribution of Decisions in Civil Cases by Type of Media
Organization

Type Of Decision
Media
Qraanization 1 2 3 4 5 Total
Newspaper 76 21 17 6 3 123
61.8 17.1 13.8 4.9 2.4 64.4
Magazine or 14 3 3 1 0 21
Pub. Co. 66.7 14.3 14.3 4.8 0.0 11.0
Radio Station 3 1 1 0 0 5
or Network 60.0 20.0 20.0 0.0 0.0 2.6
TV Station 13 7 10 1 2 33
or Network 39.4 21.2 30.3 3.0 6.1 17.3
News or 0 1 0 0 0 1
Wire Service 0.0 100.0 0.0 0.0 0.0 0.5
Other 3 2 1 2 0 8
37.5 25.0 12.5 25.0 0.0 4.2
Total 109 35 32 10 5 191
57.1 18.3 16.8 5.2 2.6

1=favorable to media
2=unfavorable to media
3=split decision
4=remanded

5=other

 

144

Table AIII-12a--Distribution of Civil Case Types by Subject Matter that Led to
Subpoena with Media a First Party

I {Q .1 [2
Subject
Matter Libel Privacy Other Total
Not 8 0 0 8
Speciﬁed 100.0 0.0 0.0 10.3
Government 18 1 1 20
90.0 5.0 5.0 25.6
Politics 4 0 0 4
100.0 0.0 0.0 5.1
Business 21 1 4 26
80.8 3.8 15.4 33.3
Crime 12 2 1 15
80.0 13.3 6.7 19.2
Other 1 1 3 5
20.0 20.0 60.0 6.4
Total 64 5 9 78

82.1 6.4 11.5

 

 

 

145

Table AIII-12b--Distribution of Civil Case Types by Subject Matter that Led to
Subpoena with Media a Third Party

Wm
Subject Not ‘ Gov’t Federal State
Mam Speciﬁed Proc. Cause Cause Total
Not 2 1 0 17 20
Speciﬁed 10.0 5.0 0.0 85.0 17.9
Government 0 5 10 6 21
0.0 23.8 47.6 28.6 18.8
Politics 0 0 2 1 3
0.0 0.0 66.7 33.3 2.7
Business 3 2 7 16 28
10.7 7.1 25.0 57 .1 25.0
Accident 0 0 0 15 15
0.0 0.0 0.0 100.0 13.4
Crime 0 1 2 3 6
0.0 16.7 33.3 50.0 5.4
Social 0 0 3 0 3
Injustice 0.0 0.0 100.0 0.0 2.7
Environment 0 0 1 2 3
0.0 0.0 33.3 66.7 2.7
Other 0 1 3 9 13
0.0 7.7 23.1 69.2 11.6
Total 5 10 28 69 112
4.5 8.9 25.0 61.6

 

146

Table AIII-13a--Distribution of Decisions by Type of Case With No Material
Subpoenaed

Deg'sion
Case
1m 1 2 3 4 5 Total
Criminal 39 21 2 2 1 65
60.0 32.3 3.1 3.1 1.5 42.8
Civil 52 19 12 2 2 87
59.8 21.8 13.8 2.3 2 3 57.2
Total 91 40 14 4 3 152
59.9 26.3 9.2 2.6 2.0

Table AIII-13b--Distribution of Decisions by Type of Case With Written
Documentation Subpoenaed

Deg'sion
Case
13m 1 2 3 4 5 Total
Criminal 31 8 6 3 0 48
64.6 16.7 12.5 6.3 0.0 41.7
Civil 41 9 12 5 0 67
61.2 13.4 17.9 7.5 0 0 58.3
Total 72 17 18 8 0 115
62.6 14.8 15.7 7.0 0.0

 

 

 

   

147

Table AIII-13c--Distribution of Decisions by Type of Case With Photographs
Subpoenaed

Racism
Case
Chan 1 2 3 4 5 Total
Criminal 5 3 0 0 0 8
62.5 37 .5 0.0 0.0 0.0 30.8
Civil 8 3 4 2 1 18
44.4 16.7 22.2 11.1 5.6 69.2
Total 13 6 4 2 1 26
50.0 23.1 15.4 7 .7 3.8

Table AIII-13d--Distribution of Decisions by Type of Case With Audiotape
Subpoenaed

D . .

Case

has 1 2 3 4 5 Total

Criminal 9 6 6 3 o 24
37.5 25.0 25.0 12.5 0.0 61.5

Civil s 1 5 o 1 15
53.3 6.7 33.3 0.0 6.7 33.5

Total 17 7 11 3 1 39
43.6 17.9 23.2 7.7 2.6

 

 

 

148

Table AIII-13e--Distribution of Decisions by Type of Case With Videotape
Subpoenaed

12 . .

Case

13616 1 2 3 4 5 Total

Criminal 11 4 6 2 o 23
47.3 17.4 26.1 3.7 0.0 47.9

Civil 1o 6 6 1 2 25
40.0 24.0 24.0 4.0 3.0 52.1

Total 21 1o 12 3 2 43
43.8 20.3 25.0 6.3 4.2

1=favorable to media
2=unfavorable to media
3=split decision
4=remanded

5=other

 

149
Table AIII-14--Recognition of Newsman’s Privilege by the Courts by Year

Privilege
mm
Not
lea; Speciﬁed Yes No Total
1969 o 0 0 o
0.0 0.0 0.0 0.0
1970 1 0 o 1
100.0 0.0 0.0 0.3
1971 o 1 0 1
0.0 100.0 0.0 0.3
1972 3 3 1 7
42.9 42.9 14.3 2.1
1973 2 6 1 9
22.2 66.7 11.1 2.7
1974 1 3 0 4
25.0 75.0 0.0 1.2
1975 1 5 1 7
14.3 71.4 14.3 2.1
1976 2 9 1 12
16.7 75.0 8.3 3.6
1977 1 4 1 6
16.7 66.7 16.7 1.8
1978 1 17 3 21
4.3 81.0 14.3 6.3
1979 7 20 o 27
25,9 74.1 0.0 8.2
1980 7 15 1 23
30.4 65.2 4.3 6.9
1981 1 17 2 20
5.0 85.0 10.0 6.0
1982 5 34 4 43
11.6 79.1 9.3 13.0

Table AIII- 14 (cont’d.).

Year
1983

1984

1985

1986

1987

1988

Total

Not

Speciﬁed

2
7.4

3
9.7

6
15.8

2
8.3

0
0.0

1
12.5

46
13.9

Yes

25
92.6

28
90.3

31
81.6

22
91.7

21
95.5
87.5

268
81.0

150

Total

27
8.2

31
38
11.5

24
7.3

22
6.7
2.4
331

 

151
Table AIII-15--Distribution of Decisions by Recognition of Newsman’s Privilege

Deg'sign

Privilege Favorable Unfavorable
Bagggnjtjgn to Media to Media Split Total
Not 22 12 5 39
Speciﬁed 56.4 30.8 12.8 12.6
Yes 170 47 36 253

67.2 18.6 14.2 81.9
N o 0 16 1 17

0.0 94.1 5.9 5.5

Total 192 75 42 309

62.1 24.3 13.6

152
Table AIII-16--Bases Claimed for Newsman’s Privilege by Year

Basis for N ewsman’s

Year 0 1 2 3 4 5 6 7 Total
1969 O O 0 O 0 0 0 0 0
0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0
1970 O 1 0 1 0 1 0 0 3
0.0 33.3 0.0 33.3 0.0 33.3 0.0 0.0 0.6
1971 O 1 0 0 0 0 0 0 1
0.0 100.0 0.0 0.0 0.0 0.0 0.0 0.0 0.2
1972 1 6 1 2 0 4 O 0 14
7 .1 42.9 7 .1 14.3 0.0 28.6 0.0 0.0 3.0
197 3 1 7 0 1 0 3 O 0 12
8.3 58.3 0.0 8.3 0.0 25.0 0.0 0.0 2.6
1974 0 4 0 0 0 1 0 0 5
0.0 80.0 0.0 0.0 0.0 20.0 0.0 0.0 1.1
1975 2 4 0 2 0 4 0 0 12
16.7 33.3 0.0 16.7 0.0 33.3 0.0 0.0 2.6
1976 3 8 O 4 0 5 0 0 20
15.0 40.0 0.0 20.0 0.0 25.0 0.0 0.0 4.3
197 7 2 4 0 1 0 2 0 10
20.0 40.0 0.0 10.0 0.0 20.0 0.0 2.2
197 8 6 11 0 5 0 5 1 30
20.0 36.7 0.0 16.7 0.0 16.7 3.3 6.5
197 9 9 13 0 4 0 12 0 38
23.7 34.2 0.0 10.5 0.0 31.6 0.0 8.2
1980 9 10 O ‘ 3 O 3 0 27
33.3 37.0 0.0 11.1 0.0 11.1 0.0 5.8
1981 6 12 O 3 0 5 1 27
22.2 44.4 0.0 11.1 0.0 18.5 3.7 5.8
1982 13 25 0 8 0 9 O 56
23.2 44.6 0.0 14.3 0.0 16.1 0.0 12.1
1983 9 14 1 1 2 8 0 36
25.0 38.9 2.8 2.8 5.6 22.2 0.0 7.8

 

153
Table AIII-16 (cont’d.).

Year 0 1 2 3 4 5 6 7 Total
1984 11 13 1 6 2 11 1 0 45
24.4 28.9 2.2 13.3 4.4 24.4 2.2 0.0 9.7
1985 18 15 0 5 2 7 1 0 48
37 .5 31.3 0.0 10.4 4.2 14.6 2.1 0 0 10.4
1986 7 14 0 6 0 9 0 0 36
19.4 38.9 0.0 16.7 0.0 25.0 0.0 0.0 7 8
1987 10 10 0 2 0 5 1 ~ 1 29
34.5 34.5 0.0 6.9 0.0 17.2 3.4 3.4 6.3
1988 3 3 0 3 0 4 0 0 13
23.1 23.1 0.0 23.1 0.0 30.8 0.0 0 0 2.8
Total 110 175 3 57 6 98 5 8 462
23.8 37.9 0.6 12.3 1.3 21.2 1.1 1.7

0=not speciﬁed
1=First Amendment
2=Fifth Amendment
3=state constitutional
4=state common law
5=statutory

=federal common law
7 =other

154
Table AIII-17--Distribution of Decisions by Basis for Newsman’s Privilege Claim

. D . .
Basrs for
ﬁlm 1 2 3 4 5 Total
Not 78 15 11 3 3 110
Speciﬁed 70.9 13.6 10.0 2.7 2.7 23.8
First 86 50 26 10 3 175
Amendment 49.1 28.6 14.9 5.7 1.7 37.9
Fifth 1 1 1 O 0 3
Amendment 33.3 33.3 33.3 0.0 0.0 0.6
State 27 20 5 5 0 57
Constitution 47.4 35.1 8.8 8.8 0.0 12.3
State 4 0 0 2 0 6
Common Law 66.7 0.0 0.0 33.3 0.0 1.3
Statutory 51 29 14 4 0 98
52.0 29.6 14.3 4.1 0.0 21.2
Federal 3 1 1 0 0 5
Common Law 60.0 20.0 20.0 0.0 0.0 1.1
Other 5 2 0 1 0 8
62.5 25.0 0.0 12.5 0.0 1.7
Total 255 118 58 25 6 462
55.2 25.5 12.6 5.4 1.3

1=favorab1e to media
2=unfavorable to media

3=split decision

4=remanded
5=other

155
Table AIII-18--Bases for Court Decisions by Year

Basis for
Maori
Year 0 1 2 3 4 5 6 7 Total

1969 0 0 0 0 0 0 O 0 0
0.0 0 0 0.0 0.0 0.0 0.0 0.0 0.0 0.0

1970 0 0 0 0 0 0 0 0 1
100.0 0.0 0.0 0.0 0.0 0.0 0.0 0.0 0.2

1971 0 1 0 0 0 0 0 0 1
0 0 100.0 0.0 0.0 0.0 0.0 0.0 0.0 0.2

1972 3 3 0 0 0 1 0 0 7
42.9 42.9 0 0 0.0 0.0 14 3 0.0 0.0 1.5

1973 2 3 0 0 1 5 0 0 11
18.2 27.3 0 0 0.0 9 1 45.5 0.0 0.0 2.3

1974 1 3 0 0 0 0 0 0 4
25.0 75.0 0.0 0.0 0.0 0 0 0.0 0.0 0.8

1975 1 5 0 0 0 2 1 0 9
11.1 55.5 0.0 0.0 0.0 22.2 11.1 0.0 1.9

1976 2 7 0 1 1 4 0 0 15
13.3 46.7 0.0 6.7 6 7 26.7 0.0 0.0 3.2

1977 1 2 0 1 0 2 2 0 8
12.5 25.0 0.0 12.5 0 0 25.0 25.0 0.0 1.7

1978 0 14 0 5 3 7 5 0 34
0.0 41.2 0.0 14.7 8 8 20.6 14.7 0.0 7.2

1979 7 12 0 4 3 9 5 0 40
17.5 30.0 0.0 10 0 7.5 22.5 12.5 0.0 8.4

1980 6 11 0 3 3 4 2 1 30
20.0 36.7 0.0 10.0 10.0 13.3 6.7 3.3 6.3

1981 1 14 0 3 1 6 8 0 33
3.0 42.4 0.0 9.1 3.0 18.2 24.2 0.0 7.0

1982 23 0 5 10 10 6 1 60
3.3 38.3 0.0 8.3 16.7 16.7 10.0 16.7 12.7

1983 1 17 1 5 7 8 4 0 43
2.3 39.5 2.3 11.6 11.6 18.6 9.3 0.0 9.1

156
Table AIII-18 (cont’d.).

leg 0 1 2 3 4 5 6 7 Total
1984 4 11 1 4 5 13 3 1 42
9.5 26.2 2.4 9.5 11.9 31.0 7.1 2.4 8.9
1985 6 22 0 4 3 10 7 1 53
14.0 41.5 0.0 7.6 5.7 18.9 13.2 1.9 11.2
1986 2 14 O 4 5 8 2 O 35
5.7 40.0 0.0 11.4 14.3 22.9 5.7 0.0 7.4
1987 0 13 0 3 9 6 4 O 35
0.0 37.1 0.0 8.6 25.7 17.1 11.4 0.0 7.4
1988 1 5 O 1 1 5 0 0 13
7.7 38.5 0.0 7 .7 7.7 38.5 0.0 0.0 2.7
Total 44 180 2 43 52 100 49 4 474
9.3 38.0 0.4 9.1 11.0 21.1 10.3 0.8

0=not speciﬁed
1=First Amendment
=Fifth Amendment
3=state constitutional
4=state common law
=statutory
=federal common law
7 =other

 

157
Table AIII-19a--Distribution of Decisions in Criminal Cases by Year

Deﬂsion
Year 1 2 3 4 5 Total
1969 0 0 0 0 0 0
0.0 0.0 0.0 0.0 0.0 0.0
1970 0 0 0 0 0 0
0.0 0.0 0.0 0.0 0.0 0.0
1971 0 1 0 O 0 1
0.0 100.0 0.0 0.0 0.0 0.7
1972 0 4 1 0 O 5
0.0 80.0 20.0 0.0 0.0 3.4
1973 1 1 2 0 0 4
25.0 25.0 50.0 0.0 0.0 2.7
1974 1 1 0 0 1 3
33.3 33.3 0.0 0.0 33.3 2.0
1975 3 1 0 0 0 4
75.0 25.0 0 O 0.0 0.0 2.7
197 6 3 2 1 0 0 6
50.0 33.3 16.7 0.0 0.0 4.1
197 7 0 2 0 0 0 2
0.0 100.0 0.0 0.0 0.0 1.4
1978 2 4 2 1 0 9
22.2 44.4 22.2 11.1 0.0 6.1
1979 11 2 1 O 0 14
78.6 14.3 7 .1 0.0 0.0 9.5
1980 4 3 2 0 0 9
44.4 33.3 22.2 0.0 0.0 6.1
1981 4 2 O 2 O 8
50.0 25.0 0.0 25.0 0.0 5.4
1982 8 5 2 0 O 15
53.3 33.3 13.3 0.0 0.0 10.2
1983 7 2 O 0 0 9
77.8 22.2 0.0 0.0 0.0 6.1

158
Table AIII-19a (cont’d.).

Yea; I 2 3 4 5 Total
1984 8 3 2 1 0 14
57.1 21.4 14.3 7.1 0.0 9.5
1985 17 2 0 1 0 20
85.0 10.0 0.0 5.0 0.0 13.6
1986 5 2 0 O 0 7
71.4 28.6 0.0 0.0 0.0 4.8
1987 7 2 0 0 O 9
77.8 22.2 0.0 0.0 0.0 6.1
1988 4 2 1 1 0 8
50.0 25.0 12.5 12.5 0.0 5.4
Total 85 41 14 6 1 147
57.8 27.9 9.5 4.1 0.7

1=favorable to media
2=unfavorable to media
3=split decision
4=remanded

5=other

 

 

 

 

 

159

Table AIII-19b--Distribution of Decisions in Civil Cases by Year

1969

1970

1971

1972

1973

1974

1975

1976

1977

1978

1979

1980

1981

1982

1983

QC 90H
0 o

g>c>
c>

g>oo
c>

H
a: c>
g>c> g>oo
c> c>

O)
9359
Q

a:
hi 9:01
o:

251)

10

8313

6115

3537

6637

17
6037

12
6637

201)

1001)

01)

01)

501)

813

2331

2813

1637

251)

2213

21u4

01)

7J.

O1)

201)

g>c>
c>

on
go 9o 90 go 90 9o ma
0 o o o o m

C

Total

1513

18
£18

 

160
Table AIII-19b (cont’d.).

Yea; I 2 3 4 5 Total
1984 11 2 3 1 0 17
64.7 11.8 17.6 5.9 0.0 9.2
1985 5 3 9 1 0 18
27.8 16.7 50.0 5.6 0.0 9.8
1986 9 2 4 1 1 17
52.9 11.8 23.5 5.9 5.9 9.2
1987 9 1 2 1 0 13
69.2 7.7 15.4 7.7 0.0 7.1
1988 0 0 0 O O 0
0.0 0.0 0.0 0.0 0.0 0.0
Total 107 34 28 10 5 184
58.2 18.5 15.2 5.4 2.7

1=favorable to media
2=unfavorable to media
3=split decision
4=remanded

5=other

 

161
Table AIII-19c-—Distribution of Decisions by Year

D . .
X921 1 2 3 4 5 Total
1969 0 O 0 O 0 0
0.0 0.0 0.0 0.0 0.0 0.0
1970 0 1 O 0 0 1
0.0 100.0 0.0 0.0 0.0 0.3
1971 0 1 0 0 O 1
0.0 100.0 0.0 0.0 0.0 0.3
1972 2 4 1 0 O 7
28.6 57 .1 14.3 0.0 0.0 2.1
1973 4 2 2 O 1 9
44.4 22.2 22.2 0.0 11.1 2.7
1974 1 2 0 0 1 4
25.0 50.0 0.0 0 0 25.0 1.2
1975 5 1 0 0 1 7
71.4 14.3 0.0 0.0 14.3 2.1
1976 8 2 2 0 O 12
66.7 16.7 16.7 0 O 0.0 3.6
1977 1 4 0 1 0 6
16.7 66.7 0.0 16.7 0.0 1.8
1978 12 5 3 1 0 21
57 .1 23.8 14.3 4 8 0.0 6.3
1979 19 5 3 O 0 27
70.4 18.5 11.1 0 0 0.0 8.2
1980 9 7 4 3 0 23
39.1 30.4 17 .4 13.0 0.0 6.9
1981 12 4 2 2 0 20
60.0 20.0 10.0 10.0 0.0 6.0
1982 25 12 3 2 1 43
58.1 27.9 7 .0 4.7 2.3 13.0
1983 19 6 1 O 1 27

70.4 22.2 3.7 0.0 3.7 8.2

 

162
Table AIII-19c (cont’d.).

Year 1 2 3 4 5 Total
1984 19 5 5 2 O 31
61.3 16.1 16.1 6.5 0.0 9.4
1985 22 5 9 2 0 38
57 .9 13.2 23.7 5.3 0.0 11.5
1986 14 4 4 1 1 24
58.3 16.7 16.7 4.2 4.2 7.3
1987 16 3 2 1 0 22
72.7 13.6 9.1 4.5 0.0 6.6
1988 4 2 1 1 0 8
50.0 25.0 12.5 12.5 0.0 2.4
Total 192 75 42 16 6 331
58.0 22.7 12.7 4.8 1.8

1=favorable to media
=unfavorable to media

3=split decision

4=remanded

5=other

163
Table AIII-20--Distribution of Decisions by Basis for Decision

D . .
Basis for Favorable Unfavorable
Denim to Media to Media Split Total
Not 22 10 5 37
Speciﬁed 59.5 27.0 13.5 8.4
First 108 38 25 171
Amendment 63.2 22.2 14.6 38.8
Fifth 1 1 0 2
Amendment 50.0 50.0 0.0 0.5
State 29 6 5 40
Constitution 72.5 15.0 12.5 9.1
State 42 3 2 47
Common Law 89.4 6.4 4.3 10.7
Statutory 52 27 18 97
53.6 27.8 18.6 22.0
Federal 27 13 7 47
Common Law 57.4 27.7 14.9 10.7
Total 281 98 62 441

63.7 22.2 14.1

 

APPENDIX IV
LIST OF CASES

Appendix IV lists all cases coded for the study and the number of the

case used in the data list.

164
U. S. Supreme Court
Branzburg v. Hayes, 408 U.S. 665 (1972). 319
Circuit Courts of Appeal

D 'r i

Liberty Lobby, Inc. v. Rees, 111 F.R.D. 19 (D.D.C. 1986). 309
Palandjian v. Pahlavi, 103 F.R.D. 410 (D.D.C. 1984). 122
Dowd v. Calabrese, 577 F. Supp. 238 (D.D.C. 1983). 120

Liberty Lobby, Inc. v. Anderson, 9 Med. L. Rptr. (BNA) 1243 (D.D.C. Sept. 13,

1982). 187
Maughan v. NL Indus., 524 F. Supp. 93 (DC. Cir. 1981). 084
SEC v. McGoﬂ', 647 F.2d 185 (DC. Cir.), cert. denied, 452 U.S. 963 (1981). 125
Tavoulareas v. Piro, 93 F.R.D. 35 (D.D.C. 1981). 119
Zerrilli v. Smith, 656 F.2d 705 (DC. Cir. 1981). 032
United States v. Hubbard, 493 F. Supp. 202 (DC. Cir. 1979). 085
Anderson v. Nixon, 444 F. Supp. 1195 (DC. Cir. 1978). 087
Carey v. Hume, 492 F.2d 631 (D.C.Cir.), cert. denied, 417 U.S. 938 (1974). 121
Democratic National Committee v. McCord (DC. Cir. 1973). 086
United States v. Liddy, 354 F. Supp. 208 (DC. Cir. 1972). 083
ir i
Holton v. Rothschild, 108 F.R.D. 720 (D. Mass. 1985). 313
Fischer v. McGowan, 10 Med. L. Rptr. (BNA) 1650 (D.R.I. 1984) 345
Russo v. Geagan, 35 F.R.S.2d 1403 (D. Mass. 1983). 115

Lynch v. Riddell, 8 Med. L. Rptr. (BNA) 2290 (D. Mass. Sept. 23, 1982). 152

Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (lst Cir. 1980).
117

 

165
United States v. Doe, 460 F.2d 328 (lst Cir. 1972), cert. denied, 411 U.S. 909

(1973). 116
S l C' 'I
von Bulow by Auersperg v. von Bulow, 811 F.2d 136 (2nd Cir. 1987). 070

United States ex rel. Vuitton v. Karen Bags, Inc., 600 F.Supp. 667 (S.D.N.Y.
1985). 298
United States v. Winans, 11 Med. L. Rptr. (BNA) 1279 (S.D.N.Y. Jan. 2,

1985). 212
In re Grand Jury Subpoena, 583 F.Supp. 991 (E.D.N.Y. 1984). 074
Millicom v. Giallanza, 10 Med. L. Rptr. (BNA) 1591 (S.D.N.Y. Apr. 19, 1984).
209
Sharon v. Time, Inc., 599 F.Supp. 538 (S.D.N.Y. 1984). 320
United States v. Burke, 7 Med. L. Rptr. 2019 (E.D.N.Y. Sept. 22, 1981), aﬁ’d,
700 F.2d 70 (2d. Cir), cert. denied, 104 S.Ct. 72 (1983). 129
Westmoreland v. CBS, 9 Med. L. Rptr. (BNA) 1521 (S.D.N.Y. Apr. 21, 1983).
188
In re Ziegler, 9 Med. L. Rptr. (BNA) 1013 (W.D.N.Y. Nov. 2, 1982). 213

McGraw Hill v. Arizona, 680 F.2d 5 (2nd Cir.), cert. denied, 459 U.S. 909 (1982).

113

SEC v. Hirsch, 8 Med. L. Rptr. (BNA) 2421 (S.D.N.Y. Oct. 25, 1982). 153
Solargen Electric Motor Car Corp. v. American Motors Corp., 506 F.Supp. 546
(N.D.N.Y. 1981). 300
In re Consumers Union, 495 F.Supp. 582 (S.D.N.Y. 1980). 296

Montezuma Realty Corp. v. Occidental Petroleum Corp., 494 F. Supp. 780

(S.D.N.Y. 1980). 124

 

166

Mazzella v. Philadelphia Newspapers, Inc., 479 F. Supp. 523 (E.D.N.Y. 1979).

095
Rosario v. New York Times Co., 84 F.R.D. 626 (S.D.N.Y. 1979). 297
United States v. DePalma, 4 Med. L. Rptr. (BNA) 2499 (S.D.N.Y. Mar. 13, 1979).

330
Citicorp v. Interbank Card Ass’n, 4 Med. L. Rptr. (BNA) 1429 (S.D.N.Y. June 2,
1978). 171
In re Consumers Union, 4 Med. L. Rptr. (BNA) 2119 (S.D.N.Y. Apr. 11, 1978).
172
United States v. Orsini, 424 F. Supp. 229 (E.D.N.Y. 1976), aﬁ°d without opinion,
559 F.2d 1206 (2nd Cir.), cert. denied, 434 U.S. 997 (1977). 114
Apicella v. McNeil Laboratories, Inc., 66 F.R.D. 78 (E.D.N.Y. 1975). 299
Baker v. F&F Investment, 470 F.2d 778 (2d Cir. 1972), cert. denied, 411 U.S.

966 (1973). 006
Thir ir i
In re Gronowicz, 764 F.2d 983 (3d. Cir. 1985). 069

Coughlin v. Westinghouse Broadcasting, 603 F. Supp. 377 (ED. Pa. 1985). 111

La] v. CBS, Inc., 726 F.2d 97 (3d Cir. 1984). 089
Pennsylvania v. Pennsylvania Dental Assoc., 8 Med. L. Rptr. (BNA) 2629 (D.M.
Pa. Sep. 1, 1982). 341
United States v. Criden, 633 F.2d 349 (3d. Cir. 1980), cert. denied sub nom.,
Schaﬁ'er v. United States, 449 U.S. 1113 (1981). 303
United States v. Cuthbertson, 630 F.2d 139 (3d. Cir. 1980), cert. denied, 449 U.S.
293

1126 (1981).
Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264 (3rd Cir.), cert. denied, 449 U.S.

994 (1980). 141

 

167
Riley v. Chester, 612 F.2d 708 (3d Cir. 1979). 094
Foggrth Circuit
LaRouche v. NBC, 12 Med. L. Rptr. (BNA) 1585 (4th Cir. Jan. 9, 1986). 232
Bauer v. Brown, 11 Med. L. Rptr. (BNA) 2168 (W.D. Va. Mar. 12, 1985). 214
Miller v. Mecklenberg County, 602 F.Supp. 675 (W.D.N.C. 1985). 073
United States v. Morrison, 12 Med. L. Rptr. (BNA) 1425 (D. Md. Nov. 29,
1985). 234
D’Alfonso v. A.S. Abell Co., 9 Med. L. Rptr. (BNA) 1015 (D. Md. Jan. 4,

1983). 189
Maurice v. NLRB, 691 F.2d 182 (4th Cir. 1982). 107
Jenoﬁ' v. Hearst Corp., 3 Med. L. Rptr. (BNA) 1911 (D. Md. Feb. 20, 1978).
325
United States v. Steelhammer, 561 F.2d 539 (4th Cir. 1977). 294
Gilbert v. Allied Chemical Corp., 411 F.Supp. 505 (ED. Va. 1976). 108
' h ir i

Pyron v. Madison County, 13 Med. L. Rptr. (BNA) 1621 (SD. Miss. Oct. 24,

1986). 254
McKee v. Starkville, 11 Med. L. Rptr. (BNA) 2312 (NB. Miss. Jan. 27, 1985).
215

In re CBS, Inc., 570 F. Supp. 578 (ED. La. 1983), appeal dism’d, 735 F.2d 907

(5th Cir. 1984). 34

In re Selcraig, 705 F.2d 789 (5th Cir. 1983). 110

United States v. Smalley, 9 Med. L. Rptr. (BNA) 1252 (N.D. Tex. Dec. 9, 1982).
190

Brown v. Okeechobee, 6 Med. L. Rptr. (BNA) 2579 (SD. Fla. Mar. 3, 1981). 334

 

 

168
Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir.), reh. denied, 628
F.2d 932 (1980), cert. denied, 450 U.S. 1041 (1981). 295
Johnson v. Miami, 6 Med. L. Rptr. (BNA) 2110 (SD. Fla. Oct. 9, 1980). 144
Mize v. McGraw-Hill, Inc., 86 F.R.D. 1 (5th Cir. 1979). 132
United States v. Gersten, 5 Med. L. Rptr. (BNA) 1334 (MD. Fla. July 11,

1979). 174
Poirier v. Carson, 537 F.2d 823 (5th Cir. 1976). 292
Sixth Circuit

Storer Communications v. Giovan, 13 Med. L. Rptr. (BNA) 2049 (6th Cir. Feb. 6,
1987). 66
Wright v. Jeep Corp., 547 F.Supp. 871 (ED. Mich. 1982). 290
Schultz. v. Reader’s Digest, 468 F. Supp. 551 (ED. Mich. 1979). 126

McArdle v. Hunter, 7 Med. L. Rptr. (BNA) 2294 (ED. Mich. Nov. 5, 1981). 148

Semnth Circuit
United States v. Lopez, 14 Med. L. Rptr. (BNA) 2203 (N.D. Ill. Nov. 20,

1987). 269
Alexander v. Chicago Park District, 8 Med. L. Rptr. (BNA) 2422 (N.D. Ill. July
28, 1982). 154
Gulliver’s Periodicals, Ltd., v. Chas. Levy Circulating Co., 455 F. Supp. 1197
(ND. 111. 1978). 005
Eighth Circuit

Whitney v. O’Hara, 11 Med. L. Rptr. (BNA) 1607 (W.D. Mo. Jan. 30, 1985). 127
Continental Cablevision v. Storer Broadcasting, 10 Med. L. Rptr. (BNA) 1641

(ED. Mo. Mar. 30, 1984). 346
Williams v. ABC, 9 Med. L. Rptr. (BNA) 1687 (W.D. Ark. Feb. 9, 1983). 191
Lauderback v. ABC, 8 Med. L. Rptr. (BNA) 2407 (N.D. Iowa Oct. 27, 1982). 155

 

169
In re IBP Litigation, 7 Med. L. Rptr. (BNA) 2127 (N.D. Iowa Oct. 15, 1981). 337

Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972). 291
Hull 3' i
Laxalt v. McClatchy, 116 F.R.D. 438 (D. Nev. 1987). 082

National Union Fire Insurance Co. v. Seaﬁrst Corp., 14 Med. L. Rptr. (BNA)
1190 (W.D. Wash. May 19, 1987). 270
EEOC v. McKellas Dev., 13 Med. L. Rptr. (BNA) 1061 (N.D. Cal. June 3,
1986). 252
Religious Technology Center v. Scott, 13 Med. L. Rptr. (BNA) 1575 (CD. Cal.
Sept. 5, 1986). 251
Shaklee Corp. v. Gunnell, 12 Med. L. Rptr. (BNA) 2221 (N.D. Cal. May 14,
1986). 238
Newton v. NBC, 11 Med. L. Rptr. (BNA) 1950 (D. Nev. May 8, 1985). 218
United States v. Buckley, 10 Med. L. Rptr. (BNA) 1336 (W.D. Wash. Jan. 27,

1984). 206

United Liquor v. Gard, 9 Med. L. Rptr. (BNA) 1697 (9th Cir. May 17, 1983).
192

DeRoburt v. Gannett Co., 507 F. Supp. 880 (D. Haw. 1981). 002

Los Angeles Memorial Coliseum Commission v. NFL, 89 F.R.D. 489 (CD. Calif.
1981). 024
Montana v. Louquet, 7 Med. L. Rptr. (BNA) 1410 (D. Mon. Jan. 6, 1981). 151
Farr v. Pitchess, 522 F.2d 464 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976).

029
Lewis v. United States, 517 F.2d 236 (9th Cir. 1975). 289

Bursey v. United States, 466 F.2d 1059 (9th Cir.), reh. denied, 466 F.2d 1092

(1972). 321

 

QI-

 

170
Tenth Circuit
In re Grand Jury Subpoenas, 8 Med. L. Rptr. (BNA) 1419 (D. Colo. Feb. 19,
1982). 159
Hart v. Playboy Enterprises, Inc., 4 Med. L. Rptr. 1616 (D. Kansas 1978). 173
Silkwood v. Kerr-McGee Corp. 563 F.2d 433 (10th Cir. 1977). 288
Elcycnth Circuit
Pinkard v. Johnson, 14 Med. L. Rptr. (BNA) 2195 (D. Ala. Oct. 26, 1987). 268
United States v. Paez, 13 Med. L. Rptr. (BNA) 1973 (SD. Fla. Feb. 2, 1987).

253
United States v. Caporale, 806 F.2d 1487 (11th Cir. 1986). 306
United States v. Meros, 11 Med. L. Rptr. (BNA) 2496 (MD. Fla. Aug. 23,
1985). 350
United States v. Waldron, 11 Med. L. Rptr. (BNA) 2461 (SD. Fla. July 26,
1985). 351
United States v. Harris, 11 Med. L. Rptr. (BNA) 1399 (SD. Fla. Jan. 21,
1985). 217
United States v. Home, 11 Med. L. Rptr. (BNA) 1312 (NB. Fla. Jan. 3,
1985). 347
United States v. Accardo, 11 Med. L. Rptr. (BNA) 1102 (SD. Fla. Nov. 16,
1984). 216

Morgan v. Roberts, 9 Med. L. Rptr. (BNA) 1486 (11th Cir. Apr. 11, 1983). 219
United States v. Blanton, 534 F.Supp. 295 (SD. Fla. 1982). 044
United States v. Lance, 5 Med. L. Rptr. (BNA) 2306 (N.D. Ga. Nov. 7, 1979).175
Loadholtz v. Fields, 389 F.Supp. 1299 (MD. Fla. 1975). 287

 

171
State Courts
Alabama
Norandal USA Inc. v. Local Union No. 7468, 13 Med. L. Rptr. (BNA) 2167 (Ala.

Cir. Ct. Sept. 11, 1986). 255
Alaska
Coney v. State, 699 P.2d 899 (Ct. App. 1985). 315

Nebel v. Mapco Petroleum, 10 Med. L. Rptr. (BNA) 1871 (Super. Ct. May 11,
1984). 030
Alaska v. Pruett, 11 Med. L. Rptr. (BNA) 1968 (Super. Ct. Dec. 12, 1984). 021
m

Bartlett v. Pima County Superior Court, 722 P.2d 346 (Ariz. Ct. App. 1986).307
Rodriguez v. Pima County Superior Court, 123 Ariz. 555, 601 P.2d 318 (Ct. App.

1979). 135

ﬂansas

Saxton v. Arkansas Gazette Co., 264 Ark. 133, 569 S.W.2d 115 (1978). 301
lif mi

Hallissy v. Contra Costa Superior Court, 15 Med. L. Rptr. (BNA) 1325 (Cal. Ct.

App. Apr. 28, 1988). 282
Dalitz v. Penthouse Int’l, Ltd., 168 Cal. App.3d 468, 214 Cal. Rptr. 254 (Ct. App.

1985). 220
McCoy v. Hearst Corp., 12 Med. L. Rptr. (BNA) 1313 (Cal. Ct. App. Oct. 23,

1985). 233

Mitchell v. Marin County Superior Court, 11 Med. L. Rptr. (BNA) 1076 (Cal.

Sup. Ct. Nov. 19, 1984). 344

Playboy Enterprises, Inc. v. Superior Court, 154 Cal. App.3d 14, 201 Cal. Rptr.

207 (Ct. App. 1984). 025

 

172

In re Brenna, 8 Med. L. Rptr. (BNA) 2561 (Cal. Super. Ct. Nov. 19, 1982). 157
In re Van Ness, 8 Med. L. Rptr. (BNA) 2563 (Cal. Super. Ct. Nov. 12, 1982).

156
KSDO v. Riverside Superior Court, 8 Med. L. Rptr. (BNA) 2360 (Oct. 7,
1982). 158
Rancho La Costa, Inc. v. Penthouse, 6 Med. L. Rptr. (BNA) 1249 (Cal. Super. Ct.
Jan. 24, 1980). 236
Hammarley v. Superior Court, 89 Cal. App.3d 388, 153 Cal. Rptr. 608 (Ct. App.
1979). 023
CBS, Inc. v. Superior Court, 85 Cal. App.3d 241, 149 Cal. Rptr. 421 (Ct. App.
1978) 022
Rosato v. Superior Court, 51 Cal. App.3d 190, 124 Cal. Rptr. 427 (1975), cert.

denied, 427 U.S. 912 (1976). 055
Colorado
Gagnon v. Fremont Dist. Ct., 632 P.2d 567 (Colo. 1981). 027

Pankratz v. Colorado District Court, 199 Colo. 411, 609 P.2d 1101 (1980). 026
ﬂkunnainan:

Rubera v. Post-Newsweek Stations, 8 Med. L. Rptr. (BNA) 2293 (Conn. Super.
Ct. Sept. 16, 1982). 160
City Council v. Hall, 180 Conn. 243, 429 A.2d 481 (1980). 018
Goldﬁeld v. Post Publishing Co., 4 Med. L. Rptr. (BNA) 1167 (Conn. Super. Ct.

July 11, 1979). 176
Conn. Labor Relations Board v. Fagin, 33 Conn. Sup. 204, 370 A.2d 1095 (Super.

Ct. 1976). 028

 

173
Belem
Delaware v. McBride, 7 Med. L. Rptr. (BNA) 1371 (Del. Super. Ct. May 6,
1981). 149
In re McGowen, 303 A.2d 645 (Del. 1973). 019
Elonida

Waterman Broadcasting of Florida Inc. v. Reese, 14 Med. L. Rptr. (BNA) 2246
(Fla. Dist. Ct. App. Jan. 27, 1988). 271
Florida v. Kersey, 14 Med. L. Rptr. (BNA) 2352 (Fla. Cir. Ct. Dec. 2, 1987).
276
Florida v. Lee, 14 Med. L. Rptr. (BNA) 1863 (Fla. County Ct. Oct. 13, 1987).
277
Sunset Chevrolet Inc. v. Heiden, 14 Med. L. Rptr. (BNA) 1252 (Fla. Cir. Ct.
June 29, 1987). 275
Damico v. Lemen, 14 Med. L. Rptr. (BNA) 1031 (Fla. Cir. Ct. May 14, 1987).
274
Bartsch v. Southland, 13 Med. L. Rptr. (BNA) 2165 (Fla. Cir. Ct. Mar. 11,
1987) 264
In re Miami News, 13 Med. L. Rptr. (BNA) 2167 (Fla. Cir. Ct. Jan. 26, 1987).265
McCuiston v. Wanicka, 13 Med. L. Rptr. (BNA) 1975 (Fla. Cir. Ct. Jan. 22,
1987) 258
In re Conﬁdential Proceedings, 13 Med. L. Rptr. (BNA) 2071 (Fla. Cir. Ct. Jan.
8, 1987). 263
Geyelin v. Pinellas County, 13 Med. L. Rptr. (BNA) 2072 (Fla. Dist. Ct. App.

Nov. 26, 1986). 256
Miller v. Richardson, 13 Med. L. Rptr. 1235 (Fla. Cir. Ct. July 16, 1986). 257

 

 

 

174
Florida v. Selinger, 12 Med. L. Rptr. (BNA) 2004 (Fla. Cir. Ct. Apr. 3, 1986).

245
Florida v. Williams, 12 Med. L. Rptr. (BNA) 1783 (Fla. Cir. Ct. Jan. 24,
1986). 243
Tribune Co. v. Huﬂ‘stetler, 489 So.2d 722 (Fla. 1986). 046

Capriles v. Magnum Marine, 12 Med. L. Rptr. (BNA) 1496 (Fla. Cir. Ct. Dec. 13,
1985). 242
Lacy v. Dissin, 12 Med. L. Rptr. (BNA) 1431 (Fla. Cir. Ct. Dec. 3, 1985). 241
Kirchner v. Aviall, 12 Med. L. Rptr. (BNA) 1816 (Fla. Cir. Ct. Nov. 6, 1985).

f 244
Florida v. Crawford, 12 Med. L. Rptr. 1309 (Fla. Cir. Ct. Oct. 22, 1985). 239
Florida v. Torregrossa, 12 Med. L. Rptr. 1311 (Fla. County Ct. June 12,
1985). 240
Woods v. Lutheran Inner-City Center, 11 Med. L. Rptr. (BNA) 1775 (Fla. Cir. Ct.

Mar. 15, 1985). 348
Satz v. News and Sun-Sentinel Co., 484 So.2d 590 (Fla. Dist. Ct. App. 1985).065

Florida v. Dibattisto, 11 Med. L. Rptr. (BNA) 1396 (Fla. Cir. Ct. Dec. 17,

1984). 221
Lang v. Tampa Television, 11 Med. L. Rptr. (BNA) 1103 (Fla. Cir. Ct. Nov. 16,
1984). 222
Johnson v. Bentley, 457 So.2d 507 (Fla. Dist. Ct. App. 1984). 001
Tribune Co. v. Green, 440 So.2d 484 (Fla. Dist. Ct. App. 1983), cert. denied, 447
So.2d 886 (Fla. 1984). 039
Shaw v. American Learning Systems, 10 Med. L. Rptr. (BNA) 2045 (Fla. Cir. Ct.
June 1, 1984). 136

 

 

 

175
U. S. Insurance Group v. Doles, 10 Med. L. Rptr. (BNA) 1038 (Fla. County Ct.
Dec. 2, 1983). 207
Shiner v. Florida Transportation Dep’t., 9 Med. L. Rptr. (BNA) 1672 (Fla. Cir.
Ct. May 2, 1983). 196
Florida v. Roman, 9 Med. L. Rptr. (BNA) 1733 (Fla. Cir. Ct. May 20, 1983). 197
Overstreet v. Neighbor, 9 Med. L. Rptr. (BNA) 2255 (Fla. Cir. Ct. Sept. 13,
1983). 198
Gadsden County Times, Inc. v. Home, 426 So.2d 1234 (Fla. Dist. Ct. App.
1983). 038
Cape Publications, Inc. v. Bridges, 387 So.2d 436 (Fla. Dist. Ct. App. 1980), cert.
denied, 104 S.Ct. 239 (1983). 043
Statewide Collection Corp. v. Anderson, 9 Med. L. Rptr. (BNA) 1056 (Fla. County
Ct. Nov. 22, 1982). 193
Florida v. Taylor, 9 Med. L. Rptr. (BNA) 1551 (Fla. Cir. Ct. May 10, 1982). 194
Jasper v. Rochelle-Thomas, 9 Med. L. Rptr. (BNA) 1336 (Fla. Cir. Ct. Sept. 16,
1982). 195
Florida v. Reid, 8 Med. L. Rptr. (BNA) 1249 (Fla. Cir. Ct. Mar. 8, 1982). 342
McCoy v. Public Gas Co., 8 Med. L. Rptr. (BNA) 1057 (Fla. Cir. Ct. Feb. 16,

1982). 161
Florida v. Kangus, 8 Med. L. Rptr. (BNA) 2045 (Palm Beach County Ct. July 6,

1982). 163
Hancock v. Wilkinson, 8 Med. L. Rptr. (BNA) 2566 (Fla. Cir. Ct. Oct. 19, 1982).
128

Florida v. Peterson, 7 Med. L. Rptr. (BNA) 1090 (Fla. Cir. Ct. March 10,
1981). 150

 

 

 

176
Schulthise v. Weyer Bros., Inc., 6 Med. L. Rptr. (BNA) 1661 (Fla. Cir. Ct. July
29, 1980). 142
Florida v. Evans, 6 Med. L. Rptr. (BNA) 1979 (Fla. Cir. Ct. May 28, 1980). 143
News-Press v. Gadd, 6 Med. L. Rptr. (BNA) 1886 (Fla. Dist. Ct. App. Sept. 5,
1980). 335
In re Nugent, 5 Med. L. Rptr. (BNA) 1723 (Fla. Cir. Ct. Aug. 28, 1979). 182
Florida v. Silber, 5 Med. L. Rptr. (BNA) 1188 (Fla. Cir. Ct. June 1, 1979). 181
Florida v. Morel, 4 Med. L. Rptr. (BNA) 2309 (Fla. Cir. Ct. Feb. 13, 1979). 179
Florida v. Beattie, 4 Med. L. Rptr. (BNA) 2150 (Fla. Cir. Ct. Jan. 9, 1979). 180
Campus Communications, Inc. v. Freedman, 374 So.2d 1169 (Fla. Dist. Ct. App.
1979). 041
Times Publishing Co. v. Burke, 375 So.2d 297 (Fla. Dist. Ct. App. 1979). 042
Florida v. Petrantoni, 4 Med. L. Rptr. (BNA) 1554 (Fla. Cir. Ct. Sept. 18,

1978). 177
Coira v. Depoo Hospital, 4 Med. L. Rptr. (BNA) 1692 (Fla. Cir. Ct. Nov. 6,
1978). 178
Florida v. Hurston, 3 Med. L. Rptr. (BNA) 2295 (Fla. Cir. Ct. Mar. 17, 1978).

326
In re Tierney, 328 S.2d 40 (Fla. Dist. Ct. App. 1976). 131
Laughlin v. State, 323 So.2d 691 (Fla. Dist. Ct. App. 1975), cert. denied, 339
So.2d 1170 (1976). 037
Morgan v. State, 337 So.2d 951 (Fla. 1976). 040
Georgia

Georgia Communications v. Home, 8 Med. L. Rptr. (BNA) 2375 (Ga. Ct. App.

Sept. 4, 1982). 340
Hurst v. State, 160 Ga. App. 830, 287 S.E.2d 677 (Ct. App. 1982). 302

 

 

 

 

177
112151211
No cases.
Idaho
In re Wright, 108 Idaho 418, 700 P.2d 40 (1985). 053
Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983). 058

Sierra Life Insurance Co. v. Magic Valley Newspapers, Inc., 101 Idaho 795, 623

P.2d 103 (1980). 003
Caldero v. Tribune Pub. Co., 98 Idaho 288, 562 P.2d 791, cert. denied, 430 U.S.

930 (1977). 059

Illiucia

In re Special Grand Jury Investigation, 104 Ill.2d 419, 472 N .E.2d 450 (1984).
009

Illinois v. Johnson, 11 Med. L. Rptr. (BNA) 1101 (I11. Cir. Ct. Oct. 22, 1984).
223

Gutierrez v. Shafer, 9 Med. L. Rptr. (BNA) 1054 (I11. Cir. Ct. Aug. 18, 1982).
199

People v. Childers, 94 Ill. App.3d 104, 418 NE. 2d 959 (App. Ct. 1981), cert.

denied, 455 U.S. 947 (1982). 007
People ex rel. Scott v. Silverstein, 87 Ill.2d 167, 429 N.E.2d 483 (1981). 008
Indiana ,

Stearns v. Zulka, 489 N.E.2d 146 (Ind. Dist. Ct. App. 1986). 067
Hitt v. State, 478 N.E.2d 65 (Ind. 1985). 312

Jamerson v. Anderson Newspapers, Inc., 469 N.E.2d 1243 (Ind. Ct. App.

1984). 134
Northside Sanitary Landﬁll, Inc. v. Bradley, 462 N.E.2d 1321 (Ind. Ct. App.
1984). 036

 

 

178
Indiana v. Haak, 10 Med. L. Rptr. (BNA) 1128 (Ind. Super. Ct. Nov. 16,

1983). 208
In re Wireman, 270 Ind. 344, 367 N.E.2d 1368 (1977), cert. denied, 436 U.S. 904
(1978). 010
Shindler v. State, 166 Ind. App. 258, 335 N.E.2d 638 (Ct. App. 1975). 052
ma

Bell v. City of Des Moines, 412 N.W.2d 585 (Iowa 1987). 304
Lamberto v. Bown, 326 N.W.2d 305 (Iowa 1982). 011

Winegard v. Oxberger, 258 N.W.2d 847 (Iowa 1977), cert. denied, 436 U.S. 905
(1978). 020

Kansas
State v. Sandstrom, 224 Kan. 573, 581 P.2d 812 (1978), cert. denied, 440 U.S.

929 (1979). 013
Kcntucky

Lexington Herald-Leader v. Beard, 11 Med. L. Rptr. (BNA) 1376 (Ky. Sup. Ct.
Dec. 20, 1984). 224
Banana

In re Ridenhour, 15 Med. L. Rptr. (BNA) 1022 (La. Sup. Ct. Feb. 29, 1988). 279
In re Burns, 484 So.2d 658 (La. 1986). 308
Munson v. Gaylord Broadcasting, 13 Med. L. Rptr. (BNA) 1618 (La. Ct. App.

July 7, 1986). 259
Dumez v. Houma Municipal Fire and Police Civil Service Board, 341 So.2d 1206
(La. Ct. App.), cert. denied, 344 So.2d 667 (1976). 012
.MaLe

Matheson v. Bangor Publishing, 6 Med. L. Rptr. (BNA) 1481 (Me. Sup. Jud. Ct.
May 28, 1980). 336

 

 

 

179
Mamland
In re California--County of Los Angeles, 57 Md. App. 804, 471 A.2d 1141 (Ct.
Spec. App. 1984), cert. denied sub nom., Rees v. County of Los Angeles, 104 S.
Ct. 2388 (1984). 016
WBAL-TV Division, The Hearst Corporation v. Maryland, 300 Md. 233, 477 A.2d
776 (1984). ' 004
Tofani v. State, 297 Md. 165, 465 A.2d 413 (Ct. App. 1983). 054
Bilney v. Evening Star Newspaper Co., 43 Md. App. 560, 406 A.2d 652

(1979). 318
Kapiloif v. Dunn, 27 Md. App. 514, 343 A.2d 251 (Ct. Spec. App. 1975), cert.
denied, 426 U.S. 907 (1976). 056

Lightman v. State, 15 Md. App. 713, 294 A.2d 149 (Ct. Spec. App. 1972), aﬁ’d
per curiam, 266 Md. 550, 295 A.2d 212, cert. denied, 411 U.S. 951 (1973). 015
Massachusetts

In re Corsetti, 7 Med. L. Rptr. (BNA) 1084 (Mass. Super. Ct. Mar. 13, 1981).
339

Massachusetts v. McDonald, 6 Med. L. Rptr. (BNA) 2230 (Mass. Super. Ct. Nov.

12, 1980). 145

Dow Jones & Co. v. Superior Court, 364 Mass. 317, 303 N.E.2d 847 (1973). 060

Michigan

In re Photo Marketing, 120 Mich. App. 527, 327 N .W.2d 515 (Ct. App. 1982).
062

Michigan v. Smith, 4 Med. L. Rptr. (BNA) 1753 (Mich. Cir. Ct. Sept. 22, 1978).
333

 

 

 

180
l I' |
Aerial Burials, Inc. v. Minneapolis Star and Tribune Co., 8 Med. L. Rptr. (BNA)
1653 (Minn. Dist. Ct. Apr. 15, 1982). 164
M' . . .
No cases.
I I' .
CBS, Inc. v. Campbell, 645 S.W.2d 30 (Mo. Ct. App. 1982). 061
Montana
Sible v. Lee Enters, 13 Med. L. Rptr. (BNA) 1738 (Mont. Sup. Ct. Nov. 25,
1986). 260
In re Investigative File, 4 Med. L. Rptr. (BNA) 1865 (Mont. Dist. Ct. Oct. 2,

1978). 332

Nebraska

No cases.

Honda

Newburn v. Howard Hughes Medical Institute, 95 Nev. 368, 594 P.2d 1146

(1979). 050

W

State v. Siel, 122 NH. 254, 444 A.2d 499 (1982). 137

Downing v. Monitor Publishing Co., 120 NH. 383, 415 A.2d 683 (1980). 047

Opinion of the Justices, 117 NH. 386, 373 A.2d 644 (1977). 017

K211122522

In re Schumann, 15 Med. L. Rptr. (BNA) 1113 (N.J. Super. Ct. Feb. 9, 1988).
280

In re Avila, 206 N.J. Super. 61, 501 A.2d 1018 (Super. Ct. App. Div. 1985). 310

 

181

Central New Jersey Home v. New York Times Co., 8 Med. L. Rptr. (BNA) 1456
(N.J. Super. Ct. Apr. 5, 1982). 165
Maressa v. New Jersey Monthly, 85 N.J. 176, 445 A.2d 376, cert. denied, 459
U.S. 907 (1982). 140
Resorts International, Inc. v. New Jersey Monthly, 89 N.J. 212, 445 A.2d 395,
cert. denied, 459 U.S. 907 (1982). 049
In re Vrazo, 176 N.J. Super. 455, 423 A.2d 695 (Law Div. 1980). 048
State v. Boiardo, 82 N .J. 446, 414 A.2d 14 (1980), 83 N.J. 350, 416 A.2d 793
(1980). 063
In re Farber, 78 N .J. 259, 394 A.2d 330, cert. denied, 439 U.S. 997 (1978). 139
New Jersey v. De La Roche, 3 Med. L. Rptr. (BNA) 2317 (N.J. Super. Ct. Nov.
23, 1977). 327
Beecroft v. Point Pleasant Printing & Publ. Co., 82 N.J. Super. 269, 197 A.2d

416 (Super. Ct. 1964). 091
Nay! Mcxicc

New Mexico v. Bobbin, 12 Med. L. Rptr. (BNA) 1292 (N.M. Ct. App. Oct. 8,
1985). 246
New Ycrk

New York v. Palese, 15 Med. L. Rptr. (BNA) 1416 (NY. County Ct. May 20,
1988). 283
New York v. Chambers, 15 Med. L. Rptr. (BNA) 1151 (NY. Sup. Ct. Mar. 1,
1988) 281
New York v. Martin, 14 Med. L. Rptr. (BNA) 2349 (NY. County Ct. Jan. 25,
1988) 272

Knight-Bidder Broadcasting, Inc. v. Greenberg, 511 N.E.2d 1116 (1987). 068

 

 

 

   

 

182
New York v. Hennessey, 13 Med. L. Rptr. (BNA) 1109 (N.Y. Dist. Ct. May 19,
1986). 266
O’Neill v. Oakgrove Const., 505 N .Y.S.2d 477 (N .Y.A.D. 1986). 316
New York v. Troiano, 11 Med. L. Rptr. (BNA) 1896 (N.Y. County Ct. Mar. 13,
1985i 226
Nulty v. Pennzoil Co., 11 Med. L. Rptr. (BNA) 1647 (N.Y. App. Div. Feb. 21,

1985). 227
First United Fund v. American Banker, 11 Med. L. Rptr. (BNA) 1699 (N.Y. Sup.
Ct. Feb. 14, 1985). 225

Beach v. Shanley, 62 N .Y.2d 241, 476 N .Y.S.2d 765, 465 N.E.2d 304 (1984). 080
Oak Beach Inn Corp. v. Babylon Beacon, Inc., 62 N.Y.2d 158, 476 N.Y.S.2d 269

(1984). 072
People v. Korkala, 99 A.D.2d 161, 472 N.Y.S.2d 310 (App. Div. 1984). 103
CBA Electronics Ltd. v. Ellenberg, 10 Med. L. Rptr. (BNA) 1095 (N .Y. Civ. Ct.
Dec. 9, 1983). 210
New York v. Bova, 9 Med. L. Rptr. (BNA) 1329 (N .Y. Sup. Ct. Feb. 19, 1983).
202

Wilkins v. Kalla, 9 Med. L. Rptr. (BNA) 1334 (N.Y. Sup. Ct. Feb. 25, 1983). 201
Lawless v. Clay, 9 Med. L. Rptr. (BNA) 1223 (N .Y.Sup. Ct. Dec. 21, 1982). 200
Capital Newspapers v. Harris, 8 Med. L. Rptr. (BNA) 1607 (N.Y. App. Div. Apr.

22, 1982). 167
New York v. Iannaccone, 8 Med. L. Rptr. (BNA) 1103 (N .Y. Supr. Ct. Jan. 28,

1982). 166
Greenleigh Assoc. v. New York Post, 79 A.D.2d 588, 434 N.Y.S.2d 388 (App. Div.

1981). 104

 

183

In re Haden-Guest, 5 Med. L. Rptr. (BNA) 2361 (N.Y. Sup. Ct. Jan. 21, 1980).
184
Greenberg v. CBS Inc., 69 A.D.2d 693, 419 N.Y.S.2d 988 (1979). 130
In re Dack, 101 Misc.2d 490, 421 N.Y.S.2d 775 (Supr. Ct. Monroe County 1979).
071
In re O’Shaughnessy, 71 A.D.2d 676, 419 N.Y.S.2d 17 (N.Y. App. Div. 1979).

035
New York v. LeGrand, 4 Med. L. Rptr. (BNA) 2524 (N.Y. App. Div. Apr. 6,
1979). 183
Mackay v. Driscoll, 3 Med. L. Rptr. (BNA) 2582 (Supreme Ct. Suffolk County
June 6, 1978). 328
Andrews v. Andreoli, 92 Misc.2d 410, 400 N.Y.S.2d 942 (Sup. Ct. Onondaga Co.
1977). 101
Davis v. Davis, 88 Misc.2d 1, 386 N.Y.S.2d 992 (Fam. Ct. Rensselaer County
1976). 102
People v. Dupree, 88 Misc.2d 791, 388 N.Y.S.2d 1000 (Sup. Ct. N.Y. Co.
1976). 100
People v. Monroe, 82 Misc.2d 850, 370 N.Y.S.2d 1007 (Sup. Ct. Bronx County
1975). 077
People v. Marahan, 81 Misc.2d 637, 368 N.Y.S.2d 685 (Supr. Ct. Kings County
1975). 078
People v. Bonnakemper, 74 Misc.2d 696, 345 N.Y.S.2d 900 (Rochester City Ct.
1973) 098
People v. Dan, 41 A.D.2d 687, 342 N.Y.S.2d 731 (App. Div. 1973), appeal
dismissed, 32 N .Y.2d 764, 344 N.Y.S.2d 955, 298 N.E.2d 118 (1973). 099
WBAI-FM v. Proskin, 42 A.D.2d 5, 344 N.Y.S.2d 393 (App. Div. 1973). 079

 

184
People v. Wolf, 39 A.D.2d 864, 333 N.Y.S.2d 799 (App. Div. 1972). 097
Schwartz v. Time, Inc., 71 Misc.2d 768, 337 N .Y.S.2d 125 (Sup. Ct. N.Y. County
1972). 076
We
North Carolina v. Smith, 13 Med. L. Rptr. (BNA) 1940 (NC. Super. Ct. Jan. 13,
1987). 261
Locklear v. Waccamaw Siouan Dev. Ass’n, 12 Med. L. Rptr. (BNA) 2391 (N .0.
Gen. Ct. Just. May 19, 1986). 247
Johnson v. Skurow, 10 Med. L. Rptr. (BNA) 2463 (N .0. Super. Ct. Aug. 21,
1984). 229
North Carolina v. Hagaman, 9 Med. L. Rptr. (BNA) 2525 (NC. Gen. Ct. Just.

Nov. 7, 1983). 205
Chappell v. Brunswick Board of Education, 9 Med. L. Rptr. (BNA) 1753 (NO.
Super. Ct. May 18, 1983). 204
North Carolina v. Rogers, 9 Med. L. Rptr. (BNA) 1254 (N .0. Super. Ct. Feb. 17,
1983). 203
Nonhﬁaliota

North Dakota v. Bergman, 11 Med. L. Rptr. (BNA) 1868 (N .D. County Ct. Apr.
11, 1985). 228
Grand Forks Herald v. District Court, 8 Med. L. Rptr. (BNA) 2269 (N .D. Sup.

Ct. Aug. 12, 1982). 237

Ohio
Ohio v. Hamilton, 12 Med. L. Rptr. (BNA) 2135 (Ohio C.P. May 6, 1986). 249
Slagle v. CocaCola, 12 Med. L. Rptr. (BNA) 1911 (Ohio C.P. Feb. 27, 1986). 248

Fawley v. Quirk, 11 Med. L. Rptr. (BNA) 2336 (Ohio Ct. App. July 17, 1985).
352

 

185
State v. Geis, 2 Ohio App.2d 258, 441 N.E.2d 803 (Ct. App. 1981), on remand, 7
Med. L. Rptr. (BNA) 2379 (GP. Dec. 2, 1981). 138

Weiss v. Thomson Newspapers, Inc., 8 Med. L. Rptr. (BNA) 1258 (Ohio C.P.
Licking County Nov. 27, 1981).

In re McAuley, 63 Ohio. App.2d 5, 408 N.E.2d 697 (Ct. App. Cuyahoga County
1979). 075
In re Rutti, 5 Med. L. Rptr. (BNA) 1513 (Ohio Ct. App. July 13, 1979). 185
Forest Hills Utility Co. v. City of Heath, 37 Ohio Misc. 30, 302 N.E.2d 593 (Ct.

C.P. Licking Co. 1973). 106
Stokes v. Lorain Journal Co., 26 Ohio Misc. 219, 266 N.E.2d 857 (GP. Cuyahoga
County 1970). 081
Qﬂﬂoma

Taylor v. Miskovsky, 640 P.2d 959 (Okla. 1981). 105
01:92:21

State ex rel. Meyers v. Howell, 86 Or. App. 570, 740 P.2d 792 (Ct. App.

1987). 305
McNabb v. Oregonian Publ. Co., 10 Med. L. Rptr. (BNA) 2181 (Or. Ct. App. July
11, 1984). 211
Oregon v. Knorr, 8 Med. L. Rptr. (BNA) 2067 (Or. Cir. Ct. July 21, 1982). 169
Benauhzania

Hatchard v. Westinghouse Broadcasting Co., 14 Med. L. Rptr. (BNA) 2000 (Pa.
Sup. Ct. Oct. 15, 1987). 273
Sprague v. Walter, 516 A.2d 706 (Pa. Super. Ct. 1986). 311
RhodeJﬂand

No cases.

 

186

h lin
No cases.
Sum—Danna
No cases.
masses
Tennessee v. Hendricks, 14 Med. L. Rptr. (BNA) 2369 (Term. Cir. Ct. Jan. 21,
1988). 267
Tennessee ex rel. Gerbitz v. Curriden, 14 Med. L. Rptr. (BNA) 1797 (Term. Sup.
Ct. Oct. 5, 1987). 278
Benson v. McConkey, 11 Med. L. Rptr. (BNA) 1711 (Term. Ct. App. Mar. 11,

1985). 231
Austin v. Memphis Publ. Co., 655 S.W.2d 146 (Tenn. 1983). 090
Tcxaa

Channel Two Television v. Dickerson, 13 Med. L. Rptr. (BNA) 2133 (Tex. Ct.
App. Feb. 12, 1987). 262
Suede Originals v. Aetna Casualty, 8 Med. L. Rptr. (BNA) 2565 (Tex. Dist. Ct.
Nov. 19, 1982). 170
In re Grand Jury Subpoena, 5 Med. L. Rptr. (BNA) 1153 (Tex. Dist. Ct. May 24,
1979). 186
Dallas Oil and Gas, Inc. v. Mouer, 533 S.W.2d 70 (Tex. Civ. App. 1976). 096

Ex parte Grothe, 687 S.W.2d 736 (Tex. Crim. App. 1984), cert. denied, 106 SC.

308 (1985). 088

Utah
No cases.

Ycrmcnt
Vermont v. Blais, 6 Med. L. Rptr. (BNA) 1537 (Vt. Dist. Ct. July 7, 1980). 146

 

187
In re Powers, 4 Med. L. Rptr. (BNA) 1600 (Vt. Dist. Ct. Oct. 19, 1978). 331

State v. St. Peter, 132 Vt. 226, 315 A.2d 254 (1974). 109

Brown v. Commonwealth, 204 S.E.2d 429 (Va. 1974). 118

Washington

Olsen v. Allen, 12 Med. L. Rptr. (BNA) 1527 (Wash. Ct. App. Dec. 23, 1985).
250

Washington v. Terwilliger, 11 Med. L. Rptr. (BNA) 2463 (Wash. Super. Ct. Aug.

23, 1985). 349
Washington v. Rinaldo, 102 Wash.2d 749, 689 P.2d 392 (1984). 033
Clampitt v. Thurston County, 9 Med. L. Rptr. (BNA) 1206 (Wash. Sup. Ct. Feb.
3, 1983). 133
Senear v. Daily Journal-American, 97 Wash.2d 148, 641 P.2d 1180 (1982). 285
No cases.
1M .
Wisconsin ex rel. Green Bay Newspapers Co. v. Circuit Court, 9 Med. L. Rptr.
(BNA) 1889 (Wis. Sup. Ct. July 1, 1983). 230
Amato v. Fellner, 4 Med. L. Rptr. (BNA) 1552 (Wis. Cir. Ct. Sept. 13, 1978).
235

Zelenka v. Wisconsin, 4 Med. L. Rptr. (BNA) 1055 (Wis. Supreme Ct. June 6,

1978). 329
State v. Knops, 49 Wis. 2d 647, 183 N.W.2d 93 (1971). 284
Momma

No cases.

 

APPENDIX V
STATE SHIELD LAWS

Appendix V provides the statute containing the newsman’s shield law for

each state.

 

188
Alabama--Ala. Code §12-21-142 (1975).
Alaska--Alaska Stat. §§9.25.150-.220 (1962).
Arizona--Ariz. Rev. Stat. Ann. §12-2237 (1982); Ariz. Rev. Stat. Ann. §12-2214
(1982 & Supp. 1987).
Arkansas--Ark. Stat. Ann. §16-85-510 (1987).
California--Cal. Evid. Code §1070 (1966 & Supp. 1988); Cal. Const. Art. 1, §2.
Colorado-none.
Connecticut--none.
Delaware-Del. Code Ann. tit. 10, §§4320-4326 (1974).
Florida--none.
Georgia--none.
Hawaii--none.
Idaho--none.
Illinois--Ill. Ann. Stat. ch. 110, para. 8-901--8-909 (Smith-Hurd 1983 & Supp.
1987).
Indiana--Ind. Code Ann. §34-3-5-1 (Burns 1986).
Iowa--none.
Kansas-~none.
Kentucky--Ky. Rev. Stat. Ann. §421.100 (Michie/Bobbs-Merrill 1972).
Louisiana--La. Rev. Stat. Ann. §§45z1451-1454 (West 1982); La. Rev. Stat. Ann.
§§45z1455-1458 (West Supp. 1988).
Maine--none.
Maryland--Md. Cts. & Jud. Proc. Code Ann. 112 (1984 & Supp. 1987).
Massachusetts--none.
Michigan--Mich. Comp. Laws Ann. §767.5a (West 1982 & Supp. 1987).
Minnesota-~Minn. Stat. Ann. §§595.021--.025 (West Supp. 1988).

 

Mississippi--none.

Missouri--none.

Montana--Mont. Code Ann. §§26-1-901--903 (1987).

Nebraska--Neb. Rev. Stat. §§20-144--147 (1983).

Nevada--Nev. Rev. Stat. §49.275 (1985).

New Hampshire-none.

New Jersey--N.J. Stat. Ann. §2Az84A-21, -21a, -21.1 to -21.9 (West 1976 & Supp.
1987).

New Mexico--N.M. Stat. Ann. §38-6-7 (1978 & Supp. 1986) replaced by N.M. R.
Evid. 11-514.

New York--N.Y. Civ. Rights Law §79-h (McKinney 1976 & Supp. 1988).
North Carolina--none.

North Dakota--N.D. Cent. Code §31-01-06.2 (1976).

Ohio--Ohio Rev. Code Ann. §§2739.04 & 2739.12 (Anderson 1981).
Oklahoma-Okla. Stat. Ann. tit. 12, §2506 (1980).

Oregon-~Or. Rev. Stat. §§44.510-.540 (1984).

Pennsylvania--42 Pa. Cons. Stat. Ann. §5942 (Purdon 1982).

Rhode Island--R.I. Gen. Laws §§9-19.1—1 to -3 (1985).

South Carolina--none.

South Dakota--none.

Tennessee--Tenn. Code Ann. §24-1-208 (1980).

Texas--none.

Utah-~none.

 

Vermont--none.
Virginia--none.

Washington--none.

190
West Virginia-none.
Wisconsin--none.

Wyoming--none.

 

APPENDIX VI
DATA LIST

Appendix VI lists the personal computer ﬁle formatted for use with the
program Statistical Package for the Social Sciences (SPSS).

 

191

Data List/case 1-3 juris 4 fedcirc 5-6 state 7-8 year 9-10 casetype 11 subreas 12
gjreas 13 defreas 14 medstat 15 medcivl 16 medciv2 17 noncivl 18 nonciv2 19
evidtype 20 submatl 21 submat2 22 submat3 23 submat4 24 partype 25
emptypel 26 emptype2 27 nmgtypel 28-29 nmgtype2 30-31 mgtype3 32-33
mgtypel 34 mgtype2 35 mgtype3 36 medorgl 37 medorg2 38 matsubl 39 clbasel
40 clbase2 41 clbase3 42 privrec 43 decbasl 44 decbas2 45 decbas3 46 decision
47.

Variable Labels case "Case Number"

/juris "Jurisdiction of Court"

/fedcirc "Federal Circuit"

/state "State"

lyear "Year"

/casetype "Type of case in which issue of newsmen or media privilege arose"
/subreas "Reason for subpoena in criminal proceeding"

lgireas "Reason for subpoena in grand jury proceeding"

/defreas "Reason for subpoena by defense"

Imedstat "Status of media in civil action"

/medciv1 "Type of action media a party"

Imedciv2 "Type of action media a party"

/nonciv1 "Type of action media not a party"

/nonciv2 "Type of action media not a party"

levidtype "Type of evidence sought from subpoena"

/subrnat1 "Type of material subpoenaed"

/submat2 "Type of material subpoenaed"

/submat3 "Type of material subpoenaed"

/submat4 "Type of material subpoenaed"

/partype "Type of party subpoenaed" . ' . ..

lemptypel "Type of employment of subpoenaed individual"

/emptype2 "Type of employment of subpoenaed 1nd1v1dual

/nmgtype1 "Type of non-management employment"

/nmgtype2 "Type of non-management employment"

/nmgtype3 "Type of non-management employment

/mgtype1 "Type of management employment"

lmgtype2 "Type of management employment"

/mgtype3 "Type of management employment

/medorg1 "Type of media organization"

/medorg2 "Type of media organization" . ..

/matsub1 "Subject material which resultednrn subpoena

/clbase1 "Basis for reporter privilege claim"

/clbase2 "Basis for reporter privilege claim"

/clbase3 "Basis for reporter privilege clarm

/recog "Recognition of privilege"

/decbasl "Basis for decision"

/decba82 "Basis for decision"

/decbas3 "Basis for decision"

/decision "Decision". . . ,

Value labels juris 1’U.S. Supreme Court’ 2’U.S.Crrcu1t Court of Appeals

3’U.S. District Court’ 4’State Supreme Court’ 5’State Court of" Appeals , . ,
6’State Lower Court’ 7’Other’/fedcirc I’First’ 2’Second’ 3Th,ird ,4 Foprth 5’Frith
6’Sixth’ 7’Seventh’ 8’Eighth’ 9’Ninth’ 10’Tenth’ 11’Eleventh 12 D.C.,/state . ,
1’Alabama’ 2’Alaska’ 3’Arizona’ 4’Arkansas’ 5’Cahforn1a 6Colorado ,7’Conne,ct1cut
8’Delaware’ 9’Florida’ 10’Georgia’ 11’Hawaii’ 12’Idaho’ 13 Illmors 14 Indlana

 

192

15’Iowa’ 16’Kansas’ 17’Kentucky’ 18’Louisiana’ 19’Maine’ 20’Maryland’
21’Massachusetts’ 22’Michigan’ 23’Minnesota’ 24’Mississippi’ 25’Missouri’
26’Montana’ 27’Nebraska’ 28’Nevada’ 29’New Hampshire’ 30’New Jersey’ 31’New
Mexico’ 32’New York’ 33’North Carolina’ 34’North Dakota’ 35’Ohio’ 36’Oklahoma’
37’Oregon’ 38’Vermont’ 39’Pennsylvania’ 40’Rhode Island’ 41’South Carolina’
42’South Dakota’ 43’Tennessee’ 44’Texas’ 45’Utah’ 46’Virginia’ 47’Washington’
48’West Virginia’ 49’Wisconsin’ 50’Wyomingﬂ

casetype 0’not speciﬁed’ 1’criminal’ 2’civil’/

subreas 0 ’not speciﬁed’ l’grand jury proceeding’ 2’subpoena by defense’
3’subpoena by prosecution’ 4’violation of grand jury secrecy’ 5’other’/

gireas 0’not speciﬁed’ 1’witness to a crime’ 2’other evidence of a crime’
3’accused of a crime’ldefreas 0’not speciﬁed’ 1’exculpatory evidence’
2’impeaching evidence’ 3’evidence of prejudicial trial or pretrial publicity’
4’prosecutorial or investigative misconduct’ 5’Sixth Amendment right’ 6’other’l
medstat 0’not speciﬁed’ 1’ﬁrst party’ 2’third party’/medciv1 0’not speciﬁed’
1’libel’ 2’privacy’ 3’other’/medciv2 O’not speciﬁed’ 1’libel’ 2’privacy’
3’other’/nonciv1 O’not speciﬁed’ 1’government proceeding’

2’federal cause of action’ 3’state cause of action’ 4’other’/nonciv2

0’not speciﬁed’ l’government proceeding’ 2’federal cause of action’

3’state cause of action’levidtype O’not speciﬁed’ 1’source’ 2’information’
3’source and information’lsubmatl 0’none’ 1’notes for written materral’
2’unpublished photographs’ 3’audiotape outtakes’ 4’videotapeI outtakes’ ,
5’transcript of broadcast’ 6’ﬁnished work product’ 7’not specrﬁed’ 8’otherI/
submat2 O’none’ 1’notes for written material’ 2’unpublished photographs
3’audiotape outtakes’ 4’videotape outtakes’ 5’transcript of broadcast

6’ﬁnished work product’ 7’not speciﬁed’ 8’other’l . I
submat3 O’none’ 1’notes for written material’ 2’unpuIblrshed photographs
3’audiotape outtakes’ 4’videotape outtakes’ 5’transcrrpt of broadcast

6’ﬁnished work product’ 7’not speciﬁed’ 8’other’/ . ,
submat4 O’none’ 1’notes for written material’ 2’unpublrshed photographs
3’audiotape outtakes’ 4’videotape outtakes’ 5’transcr1pt of broadcast

6’ﬁnished work product’ 7’not speciﬁed’ 8’othIer’/ . . ,

partype O’not speciﬁed’ 1’individual(s)’ 2’med1a orgamzatron . ,

3’both individual(s) and media organization’lemptypel 0notI specrﬁed I
1’non-management’ 2’management’/emptype2IO’not specrIﬁeId I1 non-I management
2’management’/nmgtype1 O’not speciﬁed’ 1’pr1nt JournalrstI 2Iphot030urnalrst
3’radio broadcast journalist’ 4’television broadcast journalist . . I
5’television cameraman’ 6’records custodian’ 7’author’ 8’freelance journalist
9’other’/ . I I . . ,

nmgtype2 O’not speciﬁed’ 1’print journahst 2phot0journalIrst

3’radio broadcast journalist’ 4’television broadcast journahst . . ,
5’television cameraman’ 6’records custodian’ 7’author’ 8freelance journalist
9’other’/ . . , I . . ,

mgtype3 O’not speciﬁed’ 1’print journahst 2phot0journalI1st;

3’radio broadcast journalist’ 4’television broadcast journahst . . ,
5’television cameraman’ 6’records custodian’ 7’author’ 8free1ance journahst
9’other’/ I

mgtypel O’not speciﬁed’ 1’owner’ 2’publrsher’ .

3’newspaper or magazine editor’ 4’televrsron newsIdrrecItor’ I
5’radio news director’ 6’radio program producer’ 7teI1evrsron program producer
8’other’/mgtype2 0’not speciﬁed’ 1’owner’ I2’publrsherI

3’newspaper or magazine editor’ 4’te1evrsron news drrector’

 

 

193

5’radio news director’ 6’radio program producer’ 7’television program producer’
8’other’lmgtype3 O’not speciﬁed’ 1’owner’ 2’publisher’

3’newspaper or magazine editor’ 4’television news director’

5’radio news director’ 6’radio program producer’ 7’ television program producer’
8’other’lmedorg1 O’not speciﬁed’ 1’newspaper’ 2’magazine or publishing co.’
3’radio station or network’ 4’television station or network’

5’news or wire service’ 6’news or feature syndicate’

7’cable or community antenna television’ 8’other’/

medorg2 O’not speciﬁed’ l’newspaper’ 2’magazine or publishing co.’
3’radio station or network’ 4’te1evision station or network’

5’news or wire service’ 6’news or feature syndicate’

7’cable or community antenna television’ 8’other’/matsub1 0’not speciﬁed’
l’govemment’ 2’politics’ 3’business-consumers’ 4’accident’

5’crime’ 6’social injustice’ 7 ’environment’ 8’other’/

clbasel O’not speciﬁed’

1’First Amendment’ 2’Fiith Amendment’ 3’state constitutional’

4’state common law’ 5’statutory’ 6’federal common law’ 7’other’/

clbase2 O’not speciﬁed’ l’First Amendment’ 2’Fifth Amendment’

3’state constitutional’ 4’state common law’ 5’statutory’

6’federal common law’ 7’other’l

clbase3 O’not speciﬁed’ 1’First Amendment’ 2’Fifth Amendment’

3’state constitutional’ 4’state common law’ 5’statutory’

6’federal common law’ 7’other’/recog l’not speciﬁed’ 2’yes’ 3’no’/

decbasl O’not speciﬁed’ 1’First Amendment’ 2’Fifth Amendment’

3’state constitutional’ 4’state common law’ 5’statutory’

6’federal common law’ 7’other’/

decbas2 0’not speciﬁed’ 1’First Amendment’ 2’Fiith Amendment’

3’state constitutional’ 4’state common law’ 5’statutory’

6’federal common law’ 7’ other’/

decbas3 O’not speciﬁed’ 1’First Amendment’ 2’Fifth Amendment’

3’state constitutional’ 4’state common law’ 5’statutory’

6’federal common law’ 7’other/

decision 1’favorable to press’ 2’unfavorable decision’ 3’8plit decision’
4’remanded’ 5’other’.

Missing value fedcirc (99)/state (99)/subreas (9)/gjreas (9)/defreas (9)/medstat
(9)/medciv1 (9)/

medciv2 9/ noncivl (9)/nonciv2 (9)/evidtype 9/submat2 (9)/submat3 (9)/
:ggfam (9)/emptype1 (9)/emptype2 (9)/nmgtype1 (99)/nmgtype2 (99)/nmgtype3
mgtype1 (9)/mgtyp92 (9)/mgtype3 (9)/medorg2 (9)/

clbase2 (9)/clbase3 (9)/decba82 (9)/decbas3 (9).

Begin data.

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200

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loptions=3 4 5/statistics=all.

 

 

 

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Nelson, The Newsman’s Privilege Against Disclosure of Conﬁdential Sources and
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Note, Qualiﬁed Privilege for Journalists-Branzburg v. Hayes: A Decade Later,
61 Det. J. Urban Law 463 (1984).

 

202

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Osborn, The Reporter’s Conﬁdentiality Privilege: Updating the Empirical
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Other
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Wigmore, Evidence in Trials & Common Law (McNaughton Rev. 1961).

 

 

 

 

 

   

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