Journal of Criminal Law and CriminologyVolume 70Issue 3 Fall Article 2

Fall 1979

The Fallacy of Farber: Failure to Acknowledge theConstitutional Newsman's Privilege in CriminalCasesStephen R. Hofer

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Recommended CitationStephen R. Hofer, The Fallacy of Farber: Failure to Acknowledge the Constitutional Newsman's Privilege in Criminal Cases, 70 J.Crim. L. & Criminology 299 (1979)

9901-4169/79/7003-0299S02.00/0THE JOURNAL OF CRIMINAL LAW & CRIMINOLOGY Vol. 70, No. 3Copyright Q 1979 by Northwestern University School of Law J'rintedin U.S.A.

COMMENTSTHE FALLACY OF FARBER: FAILURE TO ACKNOWLEDGE THE

CONSTITUTIONAL NEWSMAN'S PRIVILEGE IN CRIMINAL CASES

I. INTRODUCTION

Throughout the 1970's, a growing number ofnewspaper and broadcast journalists' have sud-denly become celebrities in a way that none ofthem could have wished. Reporters such as Wil-liam Farr, Peter Bridge, and most recently, MyronFarber, have become famous-because they havegone to jail. These persons arejournalists who wereordered by courts to identify confidential sourcesof information. All declined to do so, and for theirrefusal, were ordered punished for contempt.

These reporters went to jail in the name of aprinciple-but it is a principle whose constitutionalfoundation has never been explicitly sanctioned bythe Supreme Court of the United States.2 Thisprinciple, often claimed but sometimes rejected, isknown as the newsman's privilege. It is the rightclaimed byjouirnalists to refuse to testify, or other-wise supply information, in judicial, legislative, oradministrative pioceedings, about their confiden-tial news sources or confidential knowledge ob-tained in the course of news gathering. Proponentsof the privilege have claimed, at differing times,that it is derived from the common law, the first orfifth amendments to the United States Constitu-tion, or various state statutes.

Branzburg v. Hayes,5 decided June 29, 1972, is theSupreme Court's only comprehensive examinationof the subject. The five-to-four decision, authoredby Mr. Justice White, opened with this unequivo-

'The terms journalist, newsman, reporter, and thepress will 6e utilized interchangeably in this comment.The question of just who is a journalist is one that hastroubled both courts dealing with privilege claims andlegislatures trying to formulate adequate shield laws. Inthis comment, the terms mean those persons directlyinvolved in the processes of gathering, researching, writ-ing, editing, photographing, illustrating, reporting, ana-lyzing, commenting on, or broadcasting information forpublic consumption through media of mass communi-cation and dissemination of news. These media wouldinclude newspapers, magazines, other periodicals, wireservices, news or feature syndicates, radio, television, andbroadcasting networks.

2 See Branzburg v. Hayes, 408 U.S. 665 (1972).3 408 U.S. 665 (1972).

cal declaration: "The issue in these cases is whetherrequiring newsmen to appear and testify beforefederal and state grand juries abridges the freedomof speech and press guaranteed by the FirstAmendment. We hold that it does not." 4

Despite these strong words, however, the Court'sopinion left considerable room for uncertainty andconflicting interpretation. Different judges, laterruling on privilege claims in other cases, came todiametrically dissimilar conclusions-all citingBranzburg as the authority for their decisions.a

The case that once again has kindled nationalinterest in this issue is In re Farber,6 the celebrated1978 decision of the New Jersey Supreme Court,which held that any newsman's privilege mustyield to the constitutional rights of a defendant ina criminal prosecution. Although the United StatesSupreme Court did not choose to take certiorari inthe case,7 In re Farber still must be regarded as asignificant decision, not because it attracted na-tionwide attention, but because its holding adoptsa more inimical stance toward immunity for jour-nalists than most other courts have taken in recentyears. The Farber decision already has been citedby other judges,8 and it raises important questionsabout the future of this issue in the courts.

4 Id. at 667.5 As an example of two courts that interpreted Branz-

burg in dramatically different ways, see Florida v. Petran-toni, 4 MED. L. REP. (BNA) 1554 (Cir. Ct. 1978), acriminal case in which a judge cited Justice White'splurality opinion in Brawburg as the first of several au-thorities for a "broad first amendment privilege againstcompelled testimony and production of documents," andPeople v. Monroe, 88 Misc. 2d 850, 370 N.Y.S.2d 1007(Sup. Ct. 1975), a criminal case in which the court ruledthat Branzburg created no testimonial privilege, eitherabsolute or qualified, for a reporter in any phase ofcriminal proceedings from grand jury testimony throughtrial.

6 78 N.J. 259, 394 A.2d 330, cert. denied, -U.S.-, 98 S.Ct. 598 (1978).7 See -U.S.-, 98 S. Ct. 598 (1978) (denial of certior-ari).

" Cases citing Farber in refusing to recognize a news-man's privilege that were decided in the first few monthsafter the New Jersey Supreme Court's ruling include

The primary purpose of this comment will be toexamine the application of the privilege doctrinein criminal cases and grand jury testimony, andthe result in Farber will be contrasted with otherrecent decisions in the area. The history of thenewsman's privilege issue and the sources of thedoctrine will be outlined initially, followed by areview of the Supreme Court's holding in Branzburgand of those cases, both civil and criminal, thathave been decided in the years since Branwburg. Thecomment will next examine the Farber decisionitself, including both the complex procedural de-velopment of the case and the four opinions au-thored by members of the New Jersey SupremeCourt. Finally, the comment will analyze the Farberdecision and other lower court criminal law/news-man's privilege cases, and will suggest alternativesfor judicial resolution of the controversy.

II. THE CENTRAL ISSUE

The conflict at issue here is a clash between twovital guarantees of the United States Constitu-

tion-the right of free press9 and the right to justand orderly judicial process.'0 It is impossible forthe two systems protected by these constitutionalguarantees to operate simultaneously under con-ditions of absolute freedom, as cases like Branzburg

and Farber clearly demonstrate. Society must thusmake choices: either one of the systems must bepermitted to function at a level of maximum effi-ciency, with a resulting loss in the flexibility and

freedom of the other, or a balance must be struckbetween the two absolutes.

In reality, of course, there are, and always havebeen, a variety of constraints upon both the freepress and the judicial process. The common law oflibel and obscenity and the "clear and present

danger" 11 and "fighting words"' 2 doctrines are ex-

United States v. Digilio, No. 74-313 (D.N.J. 1978) (mag-istrate's opinion, unreported) and In re Powers, 4 MED.L. REP. (BNA) 1600 (Vt. Dist. Ct. 1978). Mr. JusticeWhite's opinion refusing to grant a stay in the Farber case,New York Times Co. v. Jascalevich, -U.S.-, 99 S. Ct.6 (1978), was cited in New York v. Zagarino, 4 MED. L.REP. (BNA) 1693 (N.Y. Sup. Ct. 1978).

'The first amendment provides, in pertinent part:"Congress shall make no law ... abridging the freedomof speech, or of the press...." U.S. CONST. amend. I.

'The sixth amendment provides, in pertinent part:"In all criminal prosecutions, the accused shall enjoy theright ... to be informed of the nature and cause of theaccusation; to be confronted by the witnesses againsthim; [and] to have compulsory process for obtainingwitnesses in his favor...." U.S. CONsT. amend. VI.

"E.g., Schenck v. United States, 249 U.S. 47 (1919).i2E.g., Chaplinsky v. New Hampshire, 315 U.S. 568

(1942).

amples of restrictions imposed upon freedom of thepress. Similarly, the fifth amendment's rightagainst self-incrimination,13 the "exclusionaryrule"'14 and, significantly, common law and statu-tory testimonial privileges for lawyer-client, 5 doc-tor-patient, 6 priest-penitent 17 and husband-wife8

relationships all impair, to some degree. the effi-ciency and "truth-finding" function of the judicialsystem.

The importance of a free press has been acknowl-edged since the beginnings of the Republic,' 9 butbecause no special training or licensing was neededto become a journalist, and because the journalistdid not have a responsibility to provide individualassistance to specific clients, society, and the lawdid not vest the newsman with the same testimonialprivilege given lawyers and doctors. No benefitswere believed to derive from recognizing a confi-dential relationship between a reporter and hissource that would justify a testimonial privilege forthe reporter.

[lit has ... been recognized as a fundamentalmaxim that the public... has a right to every man'sevidence.

In general ... the mere fact that a communication wasmade in express confidence, or in the implied confidenceof a confidential relation, does not create a privilege.... No pledge of privacy, nor oath of secrecy, canavail against demand for the truth in a court ofjustice .... Accordingly, a confidential communi-cation ... to a journalist ... is not pri';ileged fromdisclosure. 20

'aThe fifth amendment provides, in pertinent part:

"No person ... shall be compelled in any criminal case tobe a witness against himself...." U.S. CONST. amend. V.

'" E.g., Mapp v. Ohio, 367 U.S. 643 (1961); Weeks v.United States, 232 U.S. 383 (1914).

5 E.g., People v. Adam, 51 111. 2d 46, 280 N.E.2d 205,cert. denied, 409 U.S. 948 (1972); ILL. ANN. STAT. ch. I 10A,§ 201(b)(2) (Smith-Hurd 1978); N.J. STAT. ANN. § 2A:84A-20 (West 1979).

16E.g., N.J. STAT. ANN. § 2A:84A-22.2 (West 1979);ILL. ANN. STAT. ch. 51, § 5.1 (Smith-Hurd 1978).

'7 E.g., N.J. STAT. ANN. § 2A:84A-23 (West 1976); ILL.ANN. STAT. ch. 51, § 48.1 (Smith-Hurd 1978).

1' E.g., N.J. STAT. ANN. § 2A:84A-22 (West 1979); ILL.ANN. STAT. ch. 51, § 5 (Smith-Hurd 1978).

19 See, e.g., Z. CHAFFEE, FREE SPEECH IN THE UNITED

STATES 16-22 (1941); THE FEDERALIST No. 84 (A. HAM-ILTON); XII PAPERS OF THOMAS JEFFERSON 48-49 (J. P.Boyd ed. 1955) (letter to Col. Edward Carrington, Jan.16, 1787); VI W~rrINCS OF JAMES MADISON 1790-1802,335 (1906).

0 WIGMORE ON EVIDENCE §§ 2192, 2286 (Mc-Naughton) rev. ed. 1961) (emphasis supplied).

COMMENT [Vol. 70

"THE FALLACY OF FARBER

Although nineteenth century law did not rec-ognize a newsman's privilege, confidentiality wasseldom challenged in the courts and reporters, withlittle fear, made regular use of such sources. Asjournalism grew in professional stature and powerduring the twentieth century and the trend in printmedia swung toward more in-depth, investigativereporting, dependence on confidential sources in-creased."1 Indeed, most newsmen recognized thatsome of their most important stories would neverhave been written without the aid of confidentialsources.

22

The American Newspaper Guild acknowledgedthis important tool of newsgathering and recog-nized the responsibilities attendant to its use, whenit adopted the first code of ethics for journalists in1934. The code.included this provision: "Newspa-permen shall refuse to reveal confidences or disclosesources of confidential information in court orbefore judicial or investigative bodies."'ss

Still, the true test of reporters' resolve did notemerge until the late 1960's. It was during thoseyears that governmental agencies turned to thepress subpoena as a helpful and convenient meansof gathering information about dissidents. Report-ers resisted these subpoenas-and the clash be-tween free press and judicial process ensued.

This, then, is the basic issue in the battle overnewsman's privilege. It is a confrontation rooted insocial mores and ethical values as well as law-andit is a conflict without any easy answers or simplesolutions.

Ill. THE CONTROVERSIAL HISTORY OF THE NEws-

MAN'S PRIVILEGE

American journalists have been insisting for atleast 130 yearsH that they should not be forced toreveal the identity of their news sources. This claimhas been supported, at differing times, by one ormore of four basic legal arguments.

21 See Blasi, The Newsmen's Privilege: An Empirical Study,

70 MICH. L. REV. 229, 234, 252-53 (1971).22 See, e.g., Guest & Stanzler, The Constitutional Argument

for Newsmen Concealing Their Sources, 64 Nw. U.L. REV. 18,43-44 (1969); The Justice and the Journalist, THE NATION,.Sept. 18, 1972. Newsmen also have acknowledged theirdependence upon confidential sources in their own booksand articles. Set, e.g., B. WOODWARD & C. BERNSTEIN, ALLTHE PRESIDENT'S MEN (1974), which details use Washing-ton Post reporters made of confidential sources in expos-in%;he Watergate scandal.

American Newspaper Guild Code of Ethics, reprintedin G. BIRD & F. MERWIN, THE NEWSPAPER IN SOCIETY 567(1942).

24 See note 29 & accompanying text infra.

*Common law. Throughout the second half of thenineteenth century, newsmen contended that sucha privilege ought to be recognized in the commonlaw, but that claim was rejected repeatedly by thejudges writing the common law.s2

*Shield laws. Near the end of the century, theidea was first advanced that immunity for reporterscould be secured through the enactment of statestatutes-known today as shield laws-but it was*not until the 1930's that this proposal began mak-ing any real headway in state legislatures. Morethan half of the states now have shield laws, butcourts generally have construed them quite strictlyand thus often effectively have denied journaliststheir protection.2

*Fiflh amendment. In a limited number of caseswhere reporters have actually witnessed, or havedirect knowledge of, criminal conduct on the partof their news sources, the fifth amendment rightagainst self-incrimination has been invoked tojus-tify a newsman's refusal to testify. The fifth amend-ment theory is not used often, however, since itcovers only a small number of the possible situa-tions in which a reporter might wish to refuse totestify.

27

*First amendment. In 1958, it was suggested forthe first time that the true foundation for a news-man's privilege might be found in the first amend-ment.' Twenty years later, the development ofappellate doctrine indicates, that some degree ofprotection for the press is derived from the firstamendment, but the scope of that protection hasnot yet been clearly defined.

A. THE COMMON LAW ARGUMENT

The earliest reported case involving a newsmanwho refused to reveal his sources is Exparte Nugent,2

an 1848 decision. John Nugent, a reporter coveringthe United States Senate for the New York Herald,had obtained confidential documents concerninga proposed treaty to end the Mexican-AmericanWar. After the secret drafts appeared in print, theSenate subpoenaed Nugent and demanded that hereveal his source. He refused, and for his defiancewas arrested for contempt of the Senate. Nugentthen sought his freedom through a writ of habeascorpus. The Nugent opinion does not indicatewhether any specific claim for a newsman's privi-

See note 38 & accompanying text infra.2 See notes 42-45 & accompanying text infra.27 See note 50 & accompanying text infra.' Garland v. Torre, 259 F.2d 545 (2d Cir.), cert. denied,

358 U.S. 910 (1958).2 18 F. Cas. 471 (No. 10,375) (D.C. Cir. 1848).

19791

COMMENT

lege was made before the court. If such an argu-ment were made however, it apparently had noeffect upon the decision for Nugent's arrest wasupheld. The court rested its judgment on the in-herent and sole power of the Senate to judge itsown contempts'

°

The gestation of the common law privilege doc-trine can be seen more clearly in an 1857 legislativedecision, also stemming from a congressional con-tempt citation. James Simonton, a Washingtoncorrespondent for the New York Times, had re-ported that several unnamed members of theHouse of Representatives had taken bribes in re-turn for their votes on land grants in the MinnesotaTerritory."' A House select committee investigatingthe charges called the reporter to testify, but herefused to disclose the identities of either his sourceor the alleged bribetakers. In defense of his actions,Simonton told the committee: "I do not decline inorder to screen the members; my declination wasbased upon my own conviction of duty.... I donot see how I can answer ... without a dishonor-able breach of confidence. ' 's2 Apparently neitherthe committee nor the full House was impressed bySimonton's motives. A contempt citation was is-sued upon a 136-23 vote.33

The first case in which the highest court of astate was called on to resolve a claim of privilegewas Pledger v. State a4 decided in 1886 by the GeorgiaSupreme Court. In Pledger, which was a prosecutionfor criminal libel, the court held that a newspaperpublisher could not refuse to reveal the identity ofa reporter who had written a story appearing inhis newspaper. A defiant publisher would be sub-ject to fines and imprisonment for contempt, aswell as court-assigned liability for the libel.s3

In People ex rel. Mooney v. Sheriff of New York

County,36 a 1936 decision that was later cited fre-quently, the New York Court of Appeals held thata reporter could not rely on his promises of confi-dentiality in refusing to answer a grand jury'squestions about gambling activities.3 7 The issue asframed in that case was not unlike that which the

3DId. at 483.31 CONG. GLOBE, 34th Cong., 3d Sess., 274-75 (1857).*n ld. at 403.

3Id. at 413. By the terms of the contempt resolution,Simonton was to be held in custody until he testified, orfor the remainder of the legislative session. It is not knownwhether the reporter ever acquiesced, but Congress ad-journed six weeks later on March 3, 1857.

3' 77 Ga. 242, 3 S.E. 320 (1886)."5 Id. at 248, 3 S.E. at 322.36 269 N.Y. 291, 199 N.E. 415 (1936)."- Id. at 295, 199 N.E. at 416.

United States Supreme Court later addressed inBranzburg.

These and subsequent cases demonstrate that

American courts have never extended a friendlyreception to claims of a common-law privilege.38

Indeed, no state without statutory protection fornewsmen has ever recognized a privilege at com-mon law.39

B. THE SHIELD LAW ARGUMENT

Since appellate courts were unwilling to accepta newsman's privilege at common law, journalistsnext sought protection from the legislatures. TheMaryland General Assembly became the first bodyto enact a shield law in 1896, but not until 1933would another state-New Jersey-follow suit.

38 The American Law Reports notes at least 11 casesprior to 1958 in which state and federal appellate courtswere called upon to decide whether journalists had acommon-law privilege not to disclose information orsources. See Annot., 7 A.L.R.3d 591 (1966). In all 11cases, the courts refused to recognize such a privilege.The 1958 date is of significance in this respect becausethat was the year in which Garland v. Torre, 259 F.2d545 (2d Cir.), cert. denied, 358 U.S. 910 (1958), was de-cided. Garland was the first such case in which a reportersuggested the testimonial privilege might be grounded inthe first amendment, in addition to the common law. Seenotes 52-56 & accompanying text infra. Since the Garlanddecision, journalists have seldom depended upon thecommon law as the source of their defense. The earliercases cited at 7 A.L.R.3d 591 (1966) are:

Brewster v. Boston rierald-Traveler Corp., 20 F.R.D.416 (D. Mass. 1957); People v. Durrant, 116 Cal. 179, 48P. 75 (1897); Ex purte Lawrence, 116 Cal. 298, 4 8 P. 124(1897); Joslyn v. People, 67 Colo. 297, 184 P. 375 (1919);Clein v. State, 52 So. 2d 117 (Fla. 1950); Plunkett v.Hamilton, 136 Ga. 72, 70 S.E. 781 (1911); Pledger v.State, 77 Ga. 242, 3 S.E. 320 (1887); In re Wayne, 4Hawaii Dist. F. 475 (1914); In re Grunow, 84 N.J.L. 235,85 A. 1011 (1913); People ex rel. Mooney v. Sheriff ofNew York County, 269 N.Y. 291, 199 N.E. 415 (1936);People ex rel. Phelps v. Fancher, 2 Hun. 226 (9 Sup. Ct.Reports, N.Y. 1874). With one exception, this list iscomposed entirely of cases that arose in the criminal lawcontext, either at trial or in instances where newsmenrefused to testify before grand juries investigating possiblecriminal activities. Both the Durrant and Plunkett casesinvolved murder trials; the Pledger decision stemmed froman indictment for criminal libel; The Phelps, Lawrence,Grunow, Wayne, Joslyn, Mooney, and Clein judgments allinvolved grand juries, and Brewster involved a civil libelaction.

' See Adams v. Associated Press, 46 F.R.D. 439, 440(S.D. Tex. 1969).

4' MD. CTS. & JUD. PROC. CODE ANN. § 9-112 (Cum.Supp. 1978). In December 1886 and January 1887, Bal-timore Sun reporter John T. Morris was jailed for 17days for refusing to reveal his sources for a story he wrotedetailing a grand jury's vote on an election fraud indict-

[Vol. 70

THE FALLACY OF FARBER

By the time the United States Supreme Courtdecided Branzburg in 1972, nineteen states had cre-ated some sort of statutory protection for newsmen.In Branzburg, Justice White,.after rejecting the firstamendment claims for privilege, added that bothCongress and the various state legislatures werefree to implement any sort of shield law they feltnecessary or desirable.41 Since then, seven statesappear to have accepted Justice White's invitation,bringing to twenty-six the number which haveprivilege statutes. In addition, ten states substan-tially strengthened their existing shield lawsthrough amendments or totally new enactmentsfollowing Branzburg. New Jersey, the state in whichthe Farber case would be decided, was one of thoseten.'2

ment. The arrest is said to have been the catalyst for thepassage 10 years later of the first state shield law, enactedby the Maryland General Assembly. A misplaced digitin early historical accounts of the incident caused authorsof several law review comments and journalism treatisesto report erroneously that the Morris arrest took placeonly two months before passage of the Maryland shieldlaw, but this misconception was corrected by ProfessorA. David Gordon of Northwestern University's MedillSchool of Journalism in Gordon, 1896 Maryland ShieldLaw, The American Roots of Evidentiay Pivilege for Newsmen,JOURNALISM MONOGRAPHS No. 22 (Feb. 1972).

"41 At the federal level, Congress has freedom todetermine whether a statutory newsmen's privilegeis necessary and desirable and to fashion standardsand rules as narrow or broad as deemed necessaryto deal with the evil discerned and, equally impor-tant, to refashion those rules as experience fromtime to time may dictate. There is also merit inleaving state legislatures free, within First Amend-ment limits, to fashion their own standards in lightof the conditions and problems with respect to therelations between law enforcement officials andpress in their own areas. It goes without saying, ofcourse, that we are powerless to bar state courtsfrom responding in their own way and construingtheir own constitutions so as to recognize a news-man's privilege, either qualified or absolute.

408 U.S. at 706.42 The statutory citations for the 26 states which now

have newsman's shield laws are: ALA. CODE § 12-21-142(Cum. Supp. 1978); ALASKA STAT. §§ 09.25.150, .160(Cum. Supp. 1978); ARtz. REv. STAT. § 12.2237 (Supp.1978); ARK. STAT. ANN. § 43-917 (1977); CAL. EvID. CODE§ 1070 (West Supp. 1978); DEL. CODE tit. 10, § 4320-26(1974); ILL. ANN. STAT. ch. 51, §§ 111-19 (Smith-HurdSupp. 1978); IND. CODE ANN. § 34-3-5-1 (Burns Supp.1978); Ky. REV. STAT. § 421.100 (Cum. Supp. 1978); LA.REV. STAT. ANN. §§ 45.1451-54 (West Supp. 1978); MD.Crs. & JUD. PROC. CODE ANN. § 9-112 (Cum. Supp.1978); MICH. STAT. ANN. § 28.945(1) (1978); MINN. STAT.ANN. §§ 595.021-.025 (West Supp. 1978); MONT. REV.CODES ANN. § 93-601-2 (Cum. Supp. 1977); NEB. REV.STAT. §§ 20-144 to 147 (1977); NEv. REV. STAT. § 49.275

As indicated in Table 1, the scope of the variousshield laws varies dramatically.43 Some states pro-vide what is known as an "absolute" privilege: thejournalist cannot be compelled to testify before anyofficial body under any circumstances as to eitherhis information or the sources from which he ob-tained that information. Prior to the Farber deci-sion, New Jersey's shield law was believed to pro-vide an absolute privilege.44 In recent years how-ever, more states have tended to enact qualifiedshield laws. These statutes provide only limitedprotection and include exceptions for certain cir-cumstances in which a reporter may be compelledto testify, such as libel actions, or instances wherethere is "an overriding public interest" in disclo-sure. Shield laws also tend to differ with regard tothe persons who are permitted to claim their pro-tection, whether both sources and information, oronly sources are safeguarded, and when and howthe privilege is waived.

The Farber case clearly emphasizes what mayactually be the biggest single constraint upon thebenefit of legislatively enacted press shields: therestriciive interpretations placed upon them bystate courts. Several other cases in this decadedemonstrate the tendency of appellate jurists to'construe these laws narrowly.'5 Indeed, the New

(1977); N.J. STAT. ANN. § 2A:84A-21, 21a (West Supp.1978); N.M. STAT. ANN. § 20-1-12.1 (Supp. 1975); N.Y.Civ. Rtrres LAw § 79-h (McKinney Supp. 1978); N.D.CENT. CODE ANN. § 31-01-06.2 (1978); OHto REV. CODEANN. §§ 2739.04, .12 (Baldwin Supp. 1977); OKLA. STAT.ANN. tit. 12, § 2506 (West 1978); OR. REV. STAT. §§44.510-540 (1977); PA. CONS. STAT. ANN. § 330 (PurdonCum. Supp. 1978); R.I. GEN. LAws §§ 9-19.1-1 to -3(Supp. 1977); TENN. CODE ANN. §§ 24-113 to 115 (Supp.1977).

43 To compare the current state shield laws with thosein effect prior to the Branzburg decision, contrast Table Iwith a similar chart appearing in D'Alemberte,JournalistsUnder the Axe: Protection of Confidential Sources of Information,6 HARV. J. LEcIS. 305, 327-30 (1969).

"See relevant portions of the New Jersey Newspaper-man's Privilege Law at note 209 infra, and also JusticePashman's dissent in In re Farber, 78 N.J. at -, 394 A.2dat 344.

"For example, Paul Branzburg, the Louisville Cour-ier-Journal reporter whose name is identified with theSupreme Court's 1972 privilege decision, initially soughtto avoid appearances before two different grand juries byclaiming, inter alia, protection under what was thought tobe an "absolute" reporter's shield law. Kentucky's highestjudicial body, the Court of Appeals, conceded that thestatute allowed a newsman to refuse to identify his newssources, but then held that the law did not apply whenthe reporter had actually witnessed the commission of acrime. When Branzburg's sources converted marijuanainto hashish while he watched, the court held, they ceased

19791

TABLE IYear

EnactedPublica-(Most Persons Covered Media Included Absolute Qualified Where Asserted What Covered tion

Amend- Requiredment)

Alabama 1935 Engaged, employed, Newspaper, radio, tele- Yes Anywhere Source Yes(1949) connected with newspa- vision

per, radio, or television

1967 Public official or re-porter

1937 Engaged in, connected(1960) with, or employed by

newspaper, radio, ortelevision

Not specifed No Court may order testi-mony as may be in thepublic interest of a fairtrial

Newspaper, radio, tele-vision

Not specified

Anywhere

1936 Editor, reporter, writer Newspaper, periodical, No Must have written, pub- Anywhere (but this §(1949) for any newspaper, or radio lished, or broadcast in appears in title on crim-

periodical or radio sta- good faith, without mal- inal procedure only)tion or publisher of any ice, and in the public in-newspaper or periodical terestor manager or owner ofany station

Source

Source

Source

1965 Publisher, editor, re- Newspaper, magazine,(1974) porter, or other person other periodicals, press

connected with or em- association, wire service,ployed or formerly con- radio, televisionnected with or em-ployed

1973 Journalist, scholar, edu- Any medium using fa-cator, polemicist, or cilities for mass repro-other persons either duction of words,principally employed in sounds or images toor spending 20 hours a general publicweek engaged in prepa-ration or disseminationof information throughmass reproduction togeneral public, oragent, assistant, em-ployer, or supervisor ofall of the above.

Yes Applies to contempt ci- Anywheretations only

No Court may order testi-mony or informationonly if in public interest,and on source also if re-porter's statementproven untrue. Reportercannot be eyewitness toor participant in, physi-cal violence or propertydamage

Source and information(includes all notes, out-takes, photographs,tapes or other data)

Source (if reporter ac-tually communicateswith source) and infor-mation

Anywhere

Alaska

Arizona

Arkansas

California

Delaware

1971 Engaged in collecting, Newspaper, periodical, No Court may order testi-writing, or editing news news service, radio, tele- mony if essential to pub-for publication vision, community an- lic interest and inrorma-

tenna television service, tion not available fromnews reels, motion pic- any alternative source.ture news Not available in libel or

slander action

Not Specified Source

Anywhere1949 Any person connected Newspaper or periodi-(1973) with or formerly con- cal published at regular

nected with; bonafide intervals and havingowner, editorial or re- general circulation;portorial employee who press association, wirereceives principal in- service, licensed radio,come from legitimate or televisiongathering, writing, edit-ing, and interpretationof the news. Any personconnected with licensedradio or television sta-tion as owner, official oras an editorial or repor-torial employee who re-ceives principal incomefrom gathering, writing,editing, interpreting,announcing, or broad-casting news

Source

1936 Any person engaged,(1952) employed, connected

Newspaper, radio, tele- Yesvision

1964 Reporter (one regularly Newspaper, periodicalengaged in collecting, (issued at regular inter-writing, editing news vals and having paidfor publication) general circulation),

press association, wireservice, radio, televi-sion, news reels

No Can be revoked in thepublic interest upon ap-plication

Anywhere

Anywhere

Source

Source or identity of Noany informant

1896 Any person engaged,(1973) connected, employed

1949 Reporters(1951)

AnywhereNewspaper, journal, ra- Yesdio, television

Newspapers or other Yespublications

Only criminal investi-gations

Illinois

Indiana

Kentucky

Louisiana

Maryland

Michigan

Source

Source

Not Specified Source

TABLE I-ContinuedYear

Enacted(MostPubfica-(Most Persons Covered Media Included Absolute Qualified Where Asserted What Covered tion

Amend- Requiredment)

Minnesota 1973 Any nerson envaied in N ,..... . . ....-- -A , .. .gathering, procuring,compiling, editing, orpublishing of informa-tion for transmission,dissemination or publi-cation to the public

1943 Any person engaged, or Newspaper, news ser-(1977) who was so engaged vice, radio, telev; 'on,

when information or community - :atennasought was procured, television serviceconnected, or employedfor purpose of gather-ing, writing, editing, ordisseminating news

1973 Any person engaged in Includes, but not lim-procuring, gathering, ited to, newspaper,writing, editing or dis- magazine, periodical,seminating news or book, pamphlet, newsother information to service, wire service,the public news or feature syndi-

cate, broadcast stationor network, or large tel-evision system

1969 No reporter, former re- Newspaper, periodical,(1977) porter, or editorial em- press association, radio,

ployee (and in radio televisionand television, any em-ployee)

1933 Person engaged in, or(1977) employed for the pur-

pose of gathering, pro-curing, transmitting,compiling, editing or

sure if source has infor-mation on commissionof a crime, informationcannot be obtainedthrough alternativemeans, and there is acompelling and overrid-ing interest requiringdisclosure

Yes Anywhere

Anywhere

Anywhere

Newspapers publishedat least once a weeL,magazines with paidcirculation, press associ-ations, news agencies,

Anywhere

Source, information,and any notes, memo-randa, recording tapes,film, or other reporto-rial data

Source or information

Source, information,and all notes, outtakes,photographs, films,tapes, or other data

Source or information

Source, author, means,agency or person fromor through whom anyinformation was pro-cured, obtained, sup-

Montana

Nebraska

Nevada

New Jersey

disseminating wire services, radio, tel-evision, and otherprinted, photographic,mechanical, or elec-tronic means of dissemi-nating news to generalpublic

New Mexico 1967 Journalist or newscaster Newspaper, magazine,(1973) (any person who, for press association, news

gain, is engaged in service, wire service,gathering, preparing, news or feature syndi-editing, analyzing, com- cate, broadcast or tele-menting on, or broad- vision station, or net-casting news, or who work, or cable televisionwas so engaged at the systemtime a source or infor-mation was procured)or working associates ofjournalists or newscas-ters

No Court can order disclo-sure when essential toprevent injustice

Anywhere

plied, furnished, gath-ered, transmitted, com-piled, edited, dissemi-nated or delivered; andany news or informa-tion obtained in thecourse of pursuing hisprofessional activities

Source or information

1970 Person, who for gain Newspaper published at Yes(1975) and livelihood, is en- least once a week, mag-

gaged in gathering, pre- azine with paid cireula-paring, or editing of tion, news agency, pressnews (for print media) association, wire service,or analyzing, comment- radio or televisioning on or broadcasting transmission station, ornews (by radio or tele- networkvision)

Anywhere Source or information

North Dakota 1973 Person engaged in gath- Any organization pub-ering, writing, photo- lishing or broadcastinggraphing, or editing newsnews and employed oracting for (see MediaIncluded)

No Court can order disclo-sure to prevent miscar-riage ofjustice

Anywhere

1941 Any person engaged in, Newspaper, press asso-(1977) connected with or em- ciation, commercial or

ployed by; for purposes noncommercial radio,of gathering, procuring, televisioncompiling, editing, dis-seminating, publishing,or broadcasting news

New York

Ohio

Source or information

Anywhere Source

YearEnacted Publica-

(Most Persons Covered Media Included Absolute Qualified Where Asserted What Covered tionrecent Required

Amend-ment

Oklahoma 1974 Reporter, photogra- Newspaper, magazine, No Court may require dis- Anywhere Source or information No(1978) pher, editor, commenta- other periodical, book, closure if information is

tor, journalist, announ- pamphlet, news service, shown, by clear andcer, or others engaged wire service, news or convincing evidence, toin obtaining, writing, feature syndicate, be relevant to significantreviewing, editing, or broadcast station or issue in action, and isotherwise preparing network, cable televi- not available throughnews sion system alternate means

1973 Any person connected Newspaper, magazinewith, employed by or or other periodical,engaged in any me- book, pamphlet, newsdium of communication service, wire service,to the public or for- news or feature syndi-merly employed or en- cate, broadcast stationgaged or network, cable televi-

sion systems

Pennsylvania 1937 Engaged in, connected Newspaper or magazine(1968) with, employed by; in of general circulation,

order to gather, pro- press association, radio,cure, compile, edit, televisionpublish news

Rhode Island 1971 Reporter, editor, com- Newspaper or periodi-mentator, journalist, cal issued at regular in-writer, correspondent, tervals and having paidnews photographer, or circulation, press associ-other person engaged in ation, newspaper syndi-gathering or presenta- cate, wire service, radio, -

tion of news television

1973 A person engaged ingathering informationfor publication orbroadcast, either if con-nected with or em-ployed by, or if inde-pendently engaged

News media or press

No Does not apply in defa- Anywheremation actions

Yes Radio or television must Anywherekeep transcription or re-cording of broadcast

No Court may require dis- Anywhereclosure if necessary topermit felony prosecu-tion or to prevent athreat to life, when in-formation is not avail-able from other wit-nesses. Does not applyin defamation actions orto information alreadymade public.

No Court may require dis- Anywhereclosure if information re-lates to specific, proba-ble violation of law, itcannot be obtainedthrough alternate meansand compelling and ov-erriding public interestis shown

Source or information

Source

Source or information

Source or information "information ... precured for publicatiotbroadcast"

Oregon

Tennessee

THE FALLACY OF FARBER

Mexico Supreme Court struck down its state's

shield law as a violation of the state constitution's

being news solirces and became criminals instead. Branz-burg v. Pound, 461 S.W.2d 345 (Ky. 1970), aff'd sub nom.Branzburg v. Hayes, 408 U.S. 665 (1972); Branzburg v.Meigs, 503 S.W.2d 748 (Ky. 1971), aff'd sub nom. Branz-burg v. Hayes, 408 U.S. 665 (1972).

Both William Farr and Peter Bridge, two reporterswho served widely publicized, highly controversial jailsentences in the early 1970's for their refusal to disclosesources and information, erroneously thought they wereprotected by state shield laws.

During the 1970 Charles Manson murder trial, thepresiding judge, in an attempt to avoid prejudicial pre-trial publicity, issued an order to all the attorneys in-volved in the case, restricting the information they couldprovide to the press. Farr, then a reporter for the LosAngeles Herald-Examiner, obtained a copy of a witness'sdeposition and wrote a story based on it. Later, he leftthe newspaper's staff for ajob with the district attorney'soffice. After the Manson trial had ended, the judgeinitiated contempt proceedings against Farr and de-manded to know who had supplied him with the depo-sition. Farr refused to name his source, claiming theprotection of the California shield law. Upon reviewhowever, a state court of appeals denied him immunity.Farr v. Superior Court, 22 Cal. App. 3d 60,99 Cal. Rptr.342 (1971), cert. denied, 409 U.S. 1011 (1972). AlthoughCalifornia's statute was theoretically of the "absolute"variety, the appeals court said that permitting Farr toemploy it in this case "would be to countenance anunconstitutional interference by the legislative branchwith an inherent and vital power of the court to controlits own proceedings and officers."Id at 69,'99 Cal. Rptr.at 348. The state court also suggested, -but did notactually hold, that the shield law would not protect anex-newsman like Farr. That dictum prompted theamending of several state statutes, including California's,to include former reporters.

Farr served 46 days in jail for contempt of court-thelongest sentence any reporter has so far served in thenewsman's privilege cases. His release was finally orderedby Supreme Court Justice Douglas, writing in chambersas Circuit justice for the Ninth Circuit. See Farr v.Pitchess, 409 U.S. 1243 (1973). Farr was set free onpersonal recognizance, pending disposition of a habeascorpus action, but that petition was later denied. See Inre Farr, 36 Cal. App. 3d 577, 111 Cal. Rptr. 649 (1974);Farr v. Pitchess, 522 F.2d 464 (9th Cir. 1975), cert. denied,427 U.S. 912 (1976).

Bridge, a reporter with the Newark News, spent 20days in jail after he refused to answer a grand jury'squestions about a bribe offer reportedly made to a stateofficial. In his story about the incident, Bridge had namedhis news source, but had not revealed the identity of theperson who had attempted to make the bribe. Bridgeclaimed the protection of the New Jersey shield law, buta superior court judge ruled he had waived the privilegeby disclosing his source and some of the details in thestory itself. A New Jersey appellate court and the U.S.Supreme Court both refused to stay his contempt sen-tence. See In re Bridge, 120 NJ. Super. 460, 295 A.2d 3(App. Div. 1972), cerl. denied, 410 U.S. 991 (1973).

Ironically, it was this incident and the SupremeCourt's Branzburg decision in 1972 that led the NewJerseylegislature to revise and substantially strengthen thatstate's shield law. See note 209 infia. The new privilegestatute, said to be "one of the most strongly expressed inthe country," by a justice writing in In re Farber, 78 NJ.at -, 394 A.2d at 351, was the law that Myron Farberrelied upon when he attempted to contest the contemptcharges against him. That protection, as the New JerseySupreme Court's ruling demonstrated, was insufficient.

Other recent cases that demonstrate this tendencytoward strict construction of shield laws include: Ham-marley v. Superior Court, 89 Cal. App. 3d 388, 53 Cal.Rptr. 608 (1979) (privilege must yield to defendant'sright to fair trial in murder prosecution); Rosato v.Superior Court, 51 Cal. App. 3d 190, 124 Cal. Rptr. 427(1975), cert. denied, 427 U.S. 912 (1976) (shield law limitedby court's ability to restrict prejudicial pretrial publicity);People v. Gillings, No. 27492 & 27490 (Cal. Sup. Ct., SanJoaquin Cty., March 24, 1976) (reported in Goodale,Subpoenas, in PRAcricINo LAw INsr: COMMUNICATbONs LAw304, (1978) [hereinafter cited as Goodale] (shield law didnot protect unpublished photographs sought by bothprosecutor and defense in criminal trial); Lightman v.State, 15 Md. App. 713, 294 A.2d 149 (Ct. Spec. App.),aff'd, 266 Md. 550, 295 A.2d 212 (1972), cert. denied, 411U.S. 951 (1973) (reporter could not claim privilege whenhe personally had observed potentially criminal drugusage because he thus became the source of the infor-mation); Michigan v. Smith, 4 MED. L. RaP. (BNA) 1753(Cir. Ct.), leave to appeal denied, 4 MED L. REP. (BNA)1761 (Mich. 1978) (shield law held to apply only to grand

jury inquiries and not to subpoena duces tecum'directed toreporter at criminal trial); New York v. LeGrand, 4 MED.L. REp. (BNA) 1897 (N.Y. Sup. Ct.), aff'd, 4 MED. L.REP. (BNA) 2524 (App. Div. 1979) (author of book notentitled to shield law protection of his. confidentialsources); Andrews v. Andreoli, 92 Misc. 2d 410, 400N.Y.S.2d 442 (Sup. Ct. 1977) (reporter bears burden ofproof before grand jury of demonstrating that he hasreached a previous agreement of confidentiality withnews source); People v. Alikili, No. 2897/76 (N.Y. Sup.Ct., N.Y. Cty., 1977) (reported in Goodale, supra at 307)(television films and video tapes reporting robbery notprotected from subpoena by shield law when no confi-dential source involved); People v. Dupree, 88 Misc. 2d791, 388 N.Y.S.2d 1000 (Sup. Ct. 1976) (newspapercannot claim privilege where information was not in-tended to be confidential); People by Fisher v. Dan, 41App. Div. 2d 687, 342 N.Y.S.2d 731, appeal dismissed, 32N.Y.2d 764, 298 N.E.2d 118, 344 N.Y.S.2d 955 (1973)(television newscaster and cameraman could not refuseto answer grand jury questions concerning events theypersonally observed during prison riot); In re Dan, 80Misc. 2d 399, 363 N.Y.S.2d 493 (Sup. Ct. 1975) (news-caster could not later refuse to testify in criminal trialthat had resulted, in part, from his grand jury testimony);In re WBAI-FM, 68 Misc. 2d 355, 326 N.Y.S.2d 434(County Ct. 1971), aff'd, 42 App. Div. 2d 5, 344 N.Y.S.2d393 (1973) (radio station could not refuse to turn overletter that had revealed bombing threat to district attor-ney); and People v. Wolf, 69 Misc. 2d 256, 329 N.Y.S.2d291 (Sup. Ct. 1972), aff'd, 39 App. Div. 2d 864, 333N.Y.S.2d 299 (1972) (reporter could not claim privilegebefore grand jury when he had not promised informantconfidentiality in return for information).

COMMENT

provisions 'concerning witnesses and evidence,46

and several lower courts in New York have ex-pressed reservations about the constitutionality ofthat state's shield.47 This increasingly confined viewon the part of courts and some legislatures' haspersuaded many journalists and news associationsthat the best protection would be the enactmentby Congress of a federal shield law. Ninety-nineproposals for such a law were introduced in theHouse or Senate between 1973 and 1978, but nonemanaged to win congressional passage.4 9 Even if

such a law were enacted, privilege advocates would

have to worry not only about what Congress might

include in the law, but also about how it might

eventually be interpreted by the federal judiciary.

C. THE FIFTH AMENDMENT ARGUMENT

Newsmen have, in a limited number of circum-stances involving criminal activities, invoked the

fifth amendment as the justification for their re-

fusal to testify. While this can be viewed in part as

a newsman's privilege argument, it is actually more

Decisions in which journalists' invocation of stateshield laws have been sustained include: United States v.Homer, 411 F. Supp. 972 (W.D. Pa. 1976) (federal court,taking note of Pennsylvania statute, said newsman shouldnot be required to disclose nonconfidential informationin criminal trial where subject matter is irrelevant orimmaterial); In re Foster (Cal. Super. Ct., Alameda Cty.,March 28, 1974) (reported in Goodale, supra at 306)(contents of letter which were broadcast protected bystatute); People v. King, 266 Cal. App. 2d 437, 72 Cal.Rptr. 478 (1968) (shield law's use sustained in criminaltrial, though not under direct challenge); People v. Bon-nakemper, 74 Misc. 2d 696, 345 N.Y.S.2d 900 (City Ct.1973) (trial court quashed subpoena directed to corporatepublisher for published photographs); People v. Dillon,No. 70-4 (N.Y. Sup. Ct., Ontario Cty., June 25, 1971)(reported in Goodale, supra at 305 as In re CBS) (trialcourt quashed as overbroad special prosecutor's subpoenafor video tapes of campus disturbance).

As this note demonstrates, and as was pointed out inreference to the common law precedents, note 38 supra,

most shield law privilege cases arise either in the contextof a criminal trial or a grand jury's investigation ofalleged criminal activity. A small number of civil caseshave involved interpretation of state shield laws. Theyare discussed at note 112 infra.

46 See Ammerman v. Hubbard Broadcasting, Inc., 89

N.M. 307, 551 P.2d 1354 (1976).47 See New York v. Zagarino, 4 MED. L. RFP. (BNA)

1693 (Sup. Ct. 1978); People v. Monroe, 82 Misc. 2d 850,370 N.Y.S.2d 1007 (Sup. Ct. 1975).

4" See, e.g., Comment, Legislation Note: House Bill 1363,Testimonial Privilege for Newsmen, 9 TULSA L.J. 268 (1973).

49 Figures supplied by the Bill Status Office Committee

on House Adminstration U.S. House of Representatives.Of the 99 proposals for a federal shield law, 65 wereintroduced in the 93rd Cong., 1st Sess., the first session ofCongress to meet after the Branzburg decision.

an example of a journalist, like any other citizen,relying upon his constitutional right against self-incrimination. A fifth amendment claim occurs in

a situation where the newsman, because of hisconfidential relationship with a source, was a wit-ness to, or had direct knowledge of, criminal activ-ity. A person's failure to report a crime which hehas observed or about which he has inside infor-mation is the crime of misprison ind he can besubjected to criminal penalties. However, a personcan refuse to testify about what he saw if suchtestimony would tend to incriminate him. The

United States Supreme Court upheld this defensein Burdick v. United States,50 focusing upon protectionof the reporter's fifth amendment right rather thana newsman's privilege. More recent Supreme Courtcases, however, raise questions about just how

strong a precedent Burdick would be for journaliststoday.5'

D. THE FIRST AMENDMENT ARGUMENT

In 1958, actress Judy Garland sued the Colum-bia Broadcasting System for breach of contractand libel, basing her civil action on statementsallegedly made by an unnamed network executiveand appearing in a story by New York Herald Tribune

gossip columnist Marie Torre. When the enter-tainer sought, through discovery proceedings, tolearn the name of the executive, Torre refused toreveal it, and her attorneys responded instead witha novel argument that would significantly alter thescope of the newsman's privilege debate.

To compel a newspaper reporter to reveal theidentity of confidential sources, they argued, would

result in an unconstitutional encroachment uponthe first amendment's guarntee of freedom of thepress. This would occur because news sources'

50 236 U.S. 79 (1915). There has been only one reportedcase of newsmen relying on the fifth amendment as ashield in recent years. A Massachusetts editor and re-porter who were suspected of having obtained informa-tion from a grand jury leak pleaded both the first andthe fifth amendments in response to a district attorney'squestioning. A judge rejected the first amendment claim,but said the newsmen would not have to disclose theirsources if it would tend to incriminate them. GrandJurors for Middlesex Cty. v. Wallace, No. 111800 (Mass.Super. Ct., November 21, 1974) (reported in Goodale,supra note 45, at 310 and Press Censorship Newsletter,No. VI, December, 1974-January, 1975, at 34), aff'd onother grounds, 343 N.E.2d 844 (Mass. Sup. Jud. Ct.1976).

5 See Kastigar v. United States, 406 U.S. 441 (1972);Zicarelli v. New Jersey State Comm'n of Investigation,406 U.S. 472 (1972).

[Vol. 70

THE FALLACY OF FARBER

awareness that their identity might later be dis-closed would result in fewer informants revealinginside data to reporters and that, in turn, wouldlead to an overall reduction in the flow of newsfrom press to public.

5 2

The argument did not succeed. Torre was heldin criminal contempt for her refusal and the con-viction was upheld upon appeal by the UnitedStates Court of Appeals for the Second Circuit.5aJudge Potter Stewart declined to extend any ex-plicit recognition to a privilege under the firstamendment, though his opinion did make it clearthat freedom of the press was an important rightdeserving some judicial protection:

[Fjreedom of the press, precious and vital though itis to a free society, is not an absolute. What must bedetermined is whether the interest to be served bycompelling the testimony of the witness in the pres-ent case justifies some impairment of this FirstAmendment freedom ....

If... freedom of the press ... is here involved, wedo not hesitate to conclude that it ... must giveplace under the Constitution to a paramount publicinterest in the fair administration ofjustice.54

Judge Stewart noted that this was not a case wherethe judicial process was being used to force whole-sale disclosure of a newspaper's confidential.sources, nor was the news 'source's identity ofdoubtful relevance or materiality: "The questionasked of the appellant went to the heart of theplaintiff's claim. ' 'O

Miss Torre still would not testify, choosing in-stead to spend ten days in jail for contempt. JudyGarland, unable to learn the identity of the un-named network executive, eventually dropped herlibel suit.56

The specific facts of the Garland litigation andthe language of Judge Stewart's narrowly drawnopinion were seen initially as hopeful signs bymany privilege advocates. They believed that thefirst amendment might provide a more substantialfoundation for successful claims of protection infuture cases. But that early optimism was not wellfounded. Following the lead of Garland v. Tore,courts throughout the 1960's would pay brief hom-

52 See Garland v. Torre, 259 F.2d 545,547-48 (2d Cir.),cert. denied, 358 U.S. 910 (1958).

259 F.2d at 551.4 Id. at 548-49.5 Id. at 550.'See N.Y. Times, July 26, 1978, § A, at 14, col. 3 (city

ed.).

age to the first amendment-and then would pro-ceed to rule that it provided newsmen no privi-lege. 7

On three different occasions prior to Branzburg,litigants sought Supreme Court review of lowercourt decisions that held against a first amendmentnewsman's privilege. In each instance, they wereunsuccessful.58 In 1970 however, in the widely pub-licized case of Caldwell v. United Statesas the NinthCircuit Court of Appeals held that New York Timesreporter Earl Caldwell not only had a privilege notto reveal confidential information, but indeedcould not even be required to appear before afederal grand jury when the government hadproven no compelling need for his testimony anda lower federal court already had granted him alimited testimonial privilege.60 The surprising Cald-welljudment, the first court decision to ever accept

6 A decision which both followed the Garland principle

and, at the same time, discussed the various other casesthat had subscribed to the "no privilege" approach wasState v. Knops, 49 Wis. 2d 647, 183 N.W.2d 93 (1971).An underground newspaper editor refused to answergrand jury questions concerning his sources for a story ona bombing at the University of Wisconsin. The WisconsinSupreme Court, after a "weighing of competing values,"held the editor must testify because of the public's rightto protect itself against physical harm. Id. at 657, 183N.W.2d at 99.

The post-Garland cases mentioned in Knops that re-jected any first amendment privilege included: State v.Buchanan, 250 Or. 244, 436 P.2d 729, cert. denied, 392U.S. 905 (1968) (a campus newspaper editor refused toanswer grand jury questions concerning sources for storyon drug usage); In re Taylor, 412 Pa. 32, 193 A.2d 181(1963) (editors refused to answer grand jury questions orproduce documents concerning alleged criminal activitiesof an ex-city official. The editors' first amendment privi-lege argument, the court said, was "devoid of merit." Id.at 40, 193 A.2d at 184); and In re Goodfader, 45 Haw.317, 367 P.2d 472 (1961) (a photographer, who was nota party to a civil action, refused to answer depositionquestions about confidential sources)."a See Garland v. Torre, 259 F.2d 545 (2d Cir.), cert.

denied, 358 U.S. 910 (1958); Murphy v. Colorado, No.19604 (Colo.), cert. denied, 365 U.S. 843 (1961) (discussedin In re Goodfader, 45 Haw. 317, 366, 367 P.2d 472, 498(Mizuha, J., dissenting)); State v. Buchanan, 250 Or.244, 436 P.2d 729, cert. denied, 392 U.S. 905 (1968).

59434 F.2d 1081 (9th Cir. 1970), rev'd sub nom. Branz-burg v. Hayes, 408 U.S. 665 (1972). Earl Caldwell was ablack reporter covering the activities of the radical BlackPanther Party. He not only refused to answer a grandjury's questions, but also refused to even attend the grandjury's secret sessions, arguing that his mere appearancethere would harm his confidential relationship with theBlack Panthers and make it impossible for him to fulfillhis first amendment responsibilities as a journalist.

O'See Application of Caldwell, 311 F. Supp. 358 (N.D.Cal. 1970).

a first amendment privilege claim, was clearly atodds, not only with precedent, but also with threeother major privilege cases, all decided at aboutthe same time and all involving grand jury ap-pearances by reporters. st On May 3, 1971, theSupreme Court granted certiorari in all fourcases.&

2

E. BRANZBURG V. HAYES

In Branzburg v. Hayes the High Court, in a five-to-four decision written by Mr. Justice White, heldthat requiring newsmen to appear and testify be-fore state or federal grand juries did not abridgethe first amendment freedom of the press.63 TheCourt held that reporters have the same obligationas any other citizen to respond to grand jurysubpoenas and to answer questions relevant toinvestigations into criminal activity.6 4 The Courtalso decided that the first amendment does notgive rise to any testimonial privilege, either abso-lute or qualified, that would protect a newsman'sagreement to conceal the criminal conduct of hisnews sources, or incriminating evidence againstthem.65 The Caldwell decision was reversed by theSupreme Court, while the other three lower courtjudgments were upheld.6 6

All three of the newsmen involved, Paul Branz-burg, Paul Pappas, and Earl Caldwell, had argueda position not unlike that raised by Marie Torre.They said that, in the course of gathering news, it

61 The other three cases incorporated in the Branzburg

decision all involved rulings that denied the newsmen'sclaims to first amendment privilege. As mentioned innote 45 supra, Paul Branzburg was a reporter who wrotetwo series of stories, at differing times, about drug usagein Louisville and Frankfort, Ky. Each of these seriesresulted in subpoenas from grand juries in those com-munities. Branzburg refused to answer questions fromeither body about the identities of persons he had seen inpossession of drugs, claiming privilege under both statelaw and the first amendment. See Branzburg v. Pound,461 S.W.2d 345 (Ky. 1970), aff'd sub nom. Branzburg v.Hayes, 408 U.S. 665 (1972); Branzburg v. Meigs, 503S.W.2d 748 (Ky. 197 1), aff'dsub nom. Branzburg v. Hayes,408 U.S. 665 (1972).

The final case involved Paul Pappas, a Massachusettstelevision newscaster who had spent several hours insidea local Black Panther headquarters and then refused toanswer a grand jury's questions about what he had seenthere. The Supreme Judicial Court of Massachusettsrejected Pappas's first amendment defense. See In re Pap-pas, 358 Mass. 604, 266 N.E.2d 297 (1971), aff dsub nom.Branzburg v. Hayes, 408 U.S. 665 (1972).

62See 402 U.S. 942 (1971).

63 408 U.S. at 667.6'Id. at 690-91.6" Id. at 692.

6 Id. at 708-09.

is often necessary for a reporter to promise eithernot to identify his sources or not to reveal in printeverything he knows about a subject. If a reporteris compelled to reveal this information to a grandjury, confidential sources will be deterred fromfurnishing further information and the free flow ofnews, protected by the first amendment, will bediminished.6 7

Justice White's response to this argument didadmit one small victory for the fourth estate-heconceded that the seeking out and gathering ofnews was entitled to "some" first amendment pro-tection. He said that without such protection free-dom of the press could be "eviscerated."6 But,Justice White went on to say:

It is clear that the First Amendment does not in-validate every incidental burdening of the press thatmay result from the enforcement of civil or criminalstatutes of general applicability.

Fair and effective law enforcement ... is a funda-mental function of government, and the grand juryplays an important, constitutionally mandated rolein this process .... [W]e perceive no basis for hold-ing that the public interest in law enforcement andin ensuring effective grand jury proceedings is in-sufficient to override the consequential, but uncer-tain, burden on news gathering that is said to resultfrom insisting that reporters, like other citizens,respond to relevant questions put to them in thecourse of a valid grand jury investigation or criminaltrial. 69

67 Id. at 679-80.0 Id. at 681.69 408 U.S. at 682,690-91 (emphasis added). Although

all the Branzburg cases developed in the context of grandjury investigations, these final, additional words of dic-tum make it clear how Justice White views the issue ofprivilege claims in relation to criminal trials also.

As part of their argument before the Supreme Court,privilege proponents attempted to demonstrate that theburden upon newsgathering caused by the uncertainty ofconfidentiality was indeed a real and statistically prova-ble impediment. The empirical studies cited for thisproposition included Guest & Stanzler, note 22 supra;Blasi, note 21 supra; and Blasi, Press Subpoenas: AnEmpirical and Legal Analysis, Study Report of the Re-porters' Committee on Freedom of the Press (1972).

Justice White's response to these studies was:[Wie remain unclear how often and to what extentinformers are actually deterred from furnishing in-formation when newsmen are forced to testify beforea grand jury. The available data indicate that somenewsmen rely a great deal on confidential sourcesand that informants are particularly sensitive to thethreat of exposure and may be silenced if it is heldby this Court that ... newsmen must testify pur-

COMMENT [Vol. 70

THE FALLACY OF FARBER

The fifth and deciding vote in the Branmburgdecisions was added by Justice Powell, who, in abrief concurrence, emphasized what he saw as "thelimited nature of the Court's holding."70 JusticePowell urged a balancing approach to the issue.He echoed Justice White's promise that harassmentof the press wvould not be tolerated and he said thata reporter who was called on to give informationbearing only a remote relationship to the subjectof investigation, or who had other reason to believe"his testimony implicates confidential relationshipswithout a legitimate need of law enforcement"could seek a protective order of court through amotion to quash.71 He concluded:

The asserted claim to privilege should be judged onits facts by the striking of a proper balance betweenfreedom of the press and the obligation of all citizensto give relevant testimony with respect to criminalconduct. The balance of these vital constitutionaland societal interests on a case-by-case basis accordswith the tried and traditional way of adjudicatingsuch questions. 7

In dissent, Justice Stewart, joined by JusticesBrennan and Marshall, urged recognition of a

suant to subpoenas, but the evidence fails to dem-onstrate that there would be a significant constric-tion of the flow of news to the public if this Courtreaffirms the prior common-law and constitutionalrule regarding the testimonial obligations of news- -

men. Estimates of the inhibiting effect of such sub-poenas on the willingness of informants to makedisclosure to newsmen are widely divergent and toa great extent speculative. It would be difficult tocanvass the views of the informants themselves;surveys of reporters on this topic are chiefly opinionsof predicted informant behavior and must be viewedin the light of the professional self-interest of theinterviewees.

408 U.S. at 693-94.Justice Stewart, in dissent, sharply criticized the ma-

jority opinion on this point: "We have never beforedemanded that First Amendment rights rest on elaborateempirical studies demonstrating beyond any conceivabledoubt that deterrent effects exist .... " It. at 733 (Stewart,J., dissenting). Se Murasky, The Journalists' Privilege:Branzburg and Its Aftermath, 52 Tax. L. REV. 829 (1974),and Comment, The Newsmen's Privilege After Branzburg: TheCase for a Federal Shield Law, 24 U.C.LA. L. REV. 160,173-74 (1976), for an argument that the Supreme Courtrelied too heavily on a quantitative rather than qualita-tive analysis and ignored the large number of "impor-tant" stories, such as the Washington Post's Watergateexpose's, that Would not be uncovered and publishedwithout the aid of confidential sources.

70 408 U.S. at 709 (Powell, J., concurring).7'1d. at 710.72 Id. (footnote omitted).

conditional privilege for newsmen 73 This recogni-tion would entail shifting the burden of provingwhether the privilege applied in a particular case.Instead of the journalist attempting to convince acourt that he should be granted a testimonialprivilege, the initial responsibility would fall uponthe government to demonstrate why the reportershould not be permitted to invoke that protection.74

To meet this burden, Justice Stewart said thegovernment should be required to prevail on athree-part test. It should have to

(1) show that there is probable cause to believe thatthe newsman has information that is clearly relevantto a specific probable violation of law; (2) demon-strate that the information sought cannot be ob-tained by alternative means less destructive of firstamendment rights; and (3) demonstrate a compel-ling and overriding interest in the information.'

Justice Douglas, who focused his dissent on theCaldwell case, specifically proclaimed his view thata reporter has an absolute right under the firstamendment to refuse to appear or testify before agrand jury.78 Indeed, the Justice upbraided theNew York Times for urging only a conditional priv-ilege in its arguments before the Court; this "timid,watered-down, emasculated version of the FirstAmendment" which the Times offered was at oddswith the Justice's view of the first amendment asan absolute.7

F.'THE POST-BRANZBURG PRIVILEGE

Today, more than seven years after the Branzburgdecision, trial and appellate courts and legal com-mentators are still attempting to decide just whatthe Court's opinion actually meant. Limited to itsfacts, of course, the holding required Earl Caldwell,Paul Branzburg, and Paul Pappas to appear andtestify before grand juries, although none everactually did so.78 On the general question of news-man's privilege however, the holding was not so

a Id. at 728 (Stewart, J., dissenting).74 Id. at 739-43.75 Id. at 743 (footnotes omitted).7 Id. at 713 (Douglas, J., dissenting).7 Id.' The grand juries in the Caldwell and Pappas investi-

gations were never reconvened to hear testimony. By thetime the Supreme Court's decision was announced,Branzburg had left the Courier-Journal and was workingas a journalist in Michigan. A Kentucky court held himin contempt in absentia, but Michigan would not extraditehim. See Goodale, Branzburg v. Hayes and the DevelopingQualified Privilegefor Newsmen, 26 HAsTINGS LJ. 709, 719(1975).

clear. Four justices said they would not interpretthe first amendment to provide protection,7 9 while

three others dissented in favor of a qualified testi-monial privilege to be granted or denied throughthe application of a three-part balancing test.8 ° Afourth Justice also urged a privilege; indeed, he

believed in absolute immunity for journalists."'That left the deciding vote with justice Powell,

and though he agreed that these three particularreporters ought to be required to testify, his con-

cluding statement suggesting that "vital constitu-tional and societal interests [ought to be balanced]on a case-by-case basis" strongly implied that he,too, was willing to acknowledge a conditional priv-ilege. 2 justice Powell's own analysis of Branzburg,expressed two years later in his dissenting opinionin Saxbe v. Washington Post Co.,83 tends to substanti-ate this interpretation. In fact, the justice went sofar as to suggest that "a fair reading" of the Branz-

burg plurality opinion made it clear that "the resulthinged on an assessment of the competing societalinterests involved ... rather than on any determi-nation that First Amendment freedoms were notimplicated."8 4

The primary concern of this comment is appli-cations of newsman's privilege to criminal law.

'9 408 U.S. at 690.80 Id. at 725, 728, 743.8' Id. at 713.

2Id. at 710.83 417 U.S. 843, 859 (1974).84 Id. at 859-60. But before being too quick to read

Justice Powell's case-by-case balancing test into theBranzburg plurality opinion, recall Justice White's words:

We are unwilling to embark the judiciary on along and difficult journey to such an uncertaindestination. The administration of a constitutionalnewsman's privilege would present practical andconceptual difficulties of a high order.

In each instance where a reporter is subpoenaedto testify, the courts would also be embroiled inpreliminary factual and legal determinations withrespect to whether the proper predicate had beenlaid for the reporter's appearance....... [1in the end, by considering whether enforce-

ment of a particular law served a "compelling"governmental interest, the courts would be inextric-ably involved in distinguishing between the valueof enforcing different criminal laws. By requiringtestimony from a reporter in investigations involv-ing some crimes, but not in others, they would bemaking a value judgment that a legislature haddeclined to make .... The task ofjudges, like otherofficials outside the legislative branch, is not tomake the law, but to uphold it....

408 U.S. at 703-06.

Much of the post-Branzburg privilege litigation,however, has been civil. For that reason, a briefexamination of recent cases dealing with civil ac-tions is necessary in order to better understandtrends in this field.

1. Civil Actions

A conditional privilege appears to be developingin the area of civil litigation, drawing support morefrom the limiting language of Branzburg than fromthe holding itself. Courts deciding civil actionshave repeatedly pointed to both justice White'sand Justice Powell's emphasis on the limited natureof the Branzburg decision.aS Justice Powell's appar-ent endorsement of a balancing approach is alsocited,8 6 along with the Garland judgment.8 7 Thesetwo cases, neither of which granted a privilege ontheir specific facts, are thus employed now to sanc-tion its creation.

Even though courts have generally acknowl-

edged the existence of a conditional civil privilege,the extent to which they allow its assertion dependsupon the nature of the claim. Many of the civilsuits brought in the wake of Branzburg have beenactions for libel. In such cases, the Garland standardis generally applied and privilege claims are re-jected when the identity of the sources goes to the"heart of the claim." When newsmen are not actualparties to the litigation, however, courts are muchmore reluctant to require disclosure.

88

Three post-Branzburg cases involving conflictingdefamation and privilege claims have been decidedby federal circuit courts of appeal. 4 One of thedecisions, Herbert v. Lando, was reversed last termby the Supreme Court,90 but the Court's holding

85 See, e.g., Carey v. Hume, 492 F.2d 631, 634-36 (D.C.Cir.), cert. dismissed, 417 U.S. 938 (1974); Baker v. F & FInv., 470 F.2d 778, 783-84 (2d Cir. 1972), cert. denied, 411U.S. 966 (1973); Rancho La Costa v. Penthouse, 4 MED.

L. REP. (BNA) 1564, 1566 (Cal. Super. Ct. 1978).86 See, e.g., 492 F.2d at 634-36, 470 F.2d at 783-84.87 See, e.g., 492 F.2d at 634-36, 470 F.2d at 783-84.mt See notes 105, 107, 109 & 112 & accompanying text

infra'3 See Herbert v. Lando, 568 F.2d 974 (2d Cir. 1977),

rev'd,-U.S.-, 99 S.Ct 1635 (1979); Carey v. Hume, 492F.2d 631 (D.C. Cir.), cert. dismissed, 417 U.S. 938 (1974);Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972).

90 -U.S.-, 99 S. Ct. 1635 (1979). Col. Anthony Her-bert was a U.S. Army officer who gained national prom-inence during the latter stages of the Vietnam War whenhe charged several of his superior officers with concealingwar atrocities. Barry Lando was a producer for CBS'sdocumentary news program, "60 Minutes," who becameinterested in the Herbert story. He investigated severalinconsistencies in Herbert's story and this research re-

COMMENT [Vol. 70

THE FALLACY OF FARBER

in Herbert should not be viewed as having rendereda major change in the law of privilege claims inlibel actions. The 1977 Second Circuit decisionwhich the Supreme Court reversed in Herbert hadattempted to extend the first amendment privilegewell beyond the bounds of previous cases to encom-pass protection of ajournalist's "thoughts, opinionsand conclusions" during the editorial process. Theplaintiff in the case, a controversial ex-Army offi-cer, had not attempted to discover the identity ofnews sources or force disclosure of confidentialinformation. Instead, through pretrial discovery,he sought to learn the defendant's "state of mind"during the production and editing of an allegedlylibelous television program. The plaintiff con-tended he needed this information in order toestablish "actual malice"-the standard for recov-ery demanded under New York Times Co. v. Sulli-van.9' The Second Circuit opinion noted that thedefendant broadcaster already had submitted toan extensive deposition, which revealed everythinghe "knew, saw, said and wrote during his investi-gation."' To require more would be to "strike tothe heart of the vital human component of theeditorial process" and would result in journalistsbeing "chilled in the very process of thought. ' "s

Writing for a six-to-three majority, Justice Whitefound that argument unpersuasive. He conceded

suited in a national telecast that raised doubts aboutHerbert's veracity. Herbert then brought a $45 milliondefamation action against Lando, CBS, and others. Her-bert's deposition of Lando filled 2,903 pages, produced240 exhibits, and required 26 sessions over a period of ayear. In the deposition, Herbert inquired about whatLando knew, whom he had interviewed, and the fre-quency of his communications with his sources. Theplaintiff also wanted to know about the producer's beliefs,opinions, intent, and conclusions in preparing the pro-gram. Lando refused to answer only a few of thesequestions-those dealing with his thoughts and conclu-sions during his research, and his "state of mind" con-cerning the veracity of the persons he had interviewed.The Second Circuit felt that if malice was involved underthe New York Times rule, note 91 infra, Herbert ought tobe capable of proving it through the use of the massivetranscript he already had compiled.

9' 376 U.S. 254 (1964). The Herbert and Cervantes casesboth involved "public figures" and, under the rulesspawned by the New York Times case and its progeny, apublic figure must meet a higher standard of proof inorder to win his case. The public figure must demonstratethat the falsehood was published with actual malice or inreckless disregard of the truth. This standard may argu-ably provide courts with a greater justification for order-ing disclosure, though the Eighth Circuit did not chooseto do so in Cervantes.

9,2 568 F.2d at 984.9

3 id.

that the ediftorial process is entitled to some firstamendment protection and said it could not besubjected to "private or official examinationmerely to satisfy curiosity or to serve some generalend such as the public interest." 94 But where thereis a "specific claim of injury arising from a publi-cation that is alleged to have been knowing orrecklessly false,"95 no constitutional barrier exists.To hold otherwise, the Justice concluded, would beto "erect an impenetrable barrier" to a plaintiff'suse of the sort of direct evidence most relevant toestablishing "the ingredients of malice required byNew York Times.

'96

Turning to the more traditional type of privilegeassertion in defamation cases, the 1974 decision inCarey v. Hume97 enunciated what continues to bethe general rule. In Carey, the Circuit Court ofAppeals for the District of Columbia eschewed thedefendants' claim that journalists could never becompelled to reveal their sources and opted insteadfor a case-by-case balancing test. Noting that thedifferences between civil and criminal proceedingsdistinguished Branzburg from the action before thecourt, Judge McGowan pointed to Justice Powell's

9 -U.S. at -, 99 S.Ct. at 1648.95Id.96 -U.S. at -,99 S.Ct. at 1646.9 492 F.2d 631 (D.C. Cir.), cert. dismissed, 417 U.S. 938

(1974). This case involved a libel action brought by thegeneral counsel of the United Mine Workers unionagainst political columnist Jack Anderson and one 'of hisassociate writers. Anderson had relied on the observationsof confidential sources in writing a story that charged theplaintiff with taking documents from the union's head-quarters in order to thwart a government investigationinto union financial affairs.

The Garland and Carey standard also was applied toanother case in which columnist Anderson was involved,this time as a plaintiff. Anderson v. Nixon, 444 F. Supp.1195 (D.D.C. 1978). Anderson was seeking damages andcharging that a conspiracy led by former President Nixonhad intended to deprive him of his rights as a journalist.During a pretrial deposition, Anderson refused to identifysome of his confidential sources. In resolving the issue,Judge Gerhard Gesell began by describing the newsman'sprivilege as a" 'fundamental personal right' well foundedin the First Amendment"-perhaps the most sweepinglanguage yet used by ajurist in considering the issue. 444F. Supp. at 1198. The judge went on to say, however,that the protection was qualified:

The qualified privilege ofthe newsman is a fragileone.... Where, as here, it is the newsman himselfwho has provoked the legal controversy about whichhis confidential sources may have relevant infor-mation, any "balancing" seems most unrealistic.Having chosen to become a litigant, the newsmanis not exempt from those obligations imposed ... onall litigants in the federal courts.

444 F. Supp. at 1199.

COMMENT

opinion, which he considered controlling in Branz-

burg, and then continued:

Branzburg, in language if not in holding, left intact,insofar as civil litigation is concerned, the approachtaken in Garland. That approach essentially is thatthe court will look to the facts on a case-by-casebasis in the course of weighing the need for thetestimony in question against the claims of thenewsman that the public's right to know is im-paired.98

The court added the Garland "heart of the claim"test and a requirement that libel plaintiffs firstmake a reasonable attempt to exhaust alternativesources of information before seeking disclosurefrom the newsman-though such attempts did nothave to be "wide ranging and onerous" when thenumber of potential sources was "very substan-

tial."' Applying those standards to the libel claim

before it, the court concluded that the identity ofthe newsmen's sources was critical to the plaintiff'sclaim.

It does not follow, however, that disclosure isforeordained in all defamation cases. 10° In Cervantes

98 492 F.2d at 636.99 Id. at 638-39.'0 Three recent state and federal lower court decisions

held that the plaintiff in a libel action had failed to meetthe "heart of the claim" and "exhaustion of alternativesources" tests outlined in Carey. See Schultz v. Reader'sDigest, 4 MED. L. REP. (BNA) 2356 (E.D. Mich. 1979);Hart v. Playboy Enterprises, 4 MED. L. REP. (BNA) 1616(D. Kan. 1978); Rancho La Costa v. Penthouse, 4 MEo.L. REP. (BNA) 1564 (Cal. Super. Ct. 1978). But seeGoldfeld v. Post Publishing, 4 MED. L. REP. (BNA) 1167(Conn. Super. Ct. 1978), in which disclosure was orderedbecause the court held the plaintiff had met the testssuccessfully. Also, in two bench rulings, Martin MariettaCorp. v. Evening Star Newspaper Co., No. 75-1827(D.D.C. July 29, 1976), and Buchanan v. Cronkite, No.1087-73 (D.D.C.July 3, 1974) (both reported in Goodale,supra note 45, at 330, 334),judges ruled that disclosure ofconfidential sources would be ordered only if libel plain-tiffs established relevancy and exhaustion of alternativesources. Summary judgment in the Martin Marietta case isreported at 417 F. Supp 947, aff'd per curiam, No. 76-1932(D.C. Cir. 1978).

Utilizing a different approach, a federal court and astate court have applied state shield laws to deny a libelplaintiff's motions for disclosure of confidential sourcesor broadcast "outtakes." See Steaks Unlimited v. Deaner,4 MEo. L. REP. (BNA) 1655 (W.D. Pa. 1978); Saxton v.Arkansas Gazette Co.,-Ark.-, 569 S.W.2d 115 (1978).

While several federal and state courts seem to beacknowledging the existence of a conditional newsman'sprivilege in defamation cases, it bears mention that twostate supreme courts have ruled in libel actions that nosuch protection, either absolute or qualified, is sanctionedby the first amendment. The Massachusetts Supreme

v. Time, Inc., t decided just three weeks after Branz-

burg, the Eighth Circuit said it would not routinelygrant motions for compulsory revelation of confi-dential sources "without first inquiring into thesubstance of the libel allegation." °2 Looking at thefacts before it, the court said the plaintiff hadproduced "little more than a series of self-servingaffidavits" to support his claim."t ° The court con-cluded that to compel disclosure when a defama-tion plaintiff "has not produced a scintilla ofproof" would constitute precisely the unjustifiableharassment of the press which Justice Powell hadwarned against in Branzburg. 10

4

In three other civil cases decided by federalcircuit courts of appeal, journalists were not ac-tually parties to the litigation and the courts ac-

Judicial Court, in Dow Jones & Co. v. Superior Court,364 Mass. 317, 303 N.E.2d 847 (1973), and the SupremeCourt of Idaho in Caldero v. Tribune Publishing Co., 98Idaho 288, 562 P.2d 791, cert. denied, 434 U.S. 930 (1977),in factual situations not dissimilar from that of Carey,ruled that reporters must reveal their sources. The Mas-sachusetts court cited Branzburg and Garland and distin-guished Baker v. F & F Inv., 470 F.2d 778 (2d Cir. 1972),cert. denied, 411 U.S. 966 (1973). See note 105 & accom-panying text infra. The Idaho court cited not only Branz-burg and Garland, but Carey and Dou, Jones as well for itsconclusion. But see the spirited dissents of Justices Don-aldson and Bakes, 98 Idaho at 298, 562 P.2d at 801-12,both of whom distinguished Branzburg and Garland alongthe same lines followed by many federal courts. A lowerIdaho court recently followed Caldero in imposing a $1.9million libel judgment against a newspaper ihat refusedto reveal confidential information after the court orderedits disclosure. See Sierra Life Ins. v. Magic Valley News-papers, 4 MED. L. REP. (BNA) 1689 (Idaho Dist. Ct.1977h.

After the New Mexico Supreme Court had struckdown its state's shield law as unconstitutional (see note46 supra), the Court of Appeals of New Mexico, in asubsequent case stemming from the same cause of action,ruled that the first amendment also provided no privilege,either absolute or qualified, in defamation actions. Thecourt cited DowJones and Carey in reaching its conclusion.See Ammerman v. Hubbard Broadcasting, Inc., 91 N.M.250, 572 P.2d 1258 (Ct. App.), cert. denied, 91 N.M. 249,572 N.M. 1257 (1977), cert. denied, 436 U.S. 906 (1978).

Two reported trial rulings that held against privilegeclaims in defamation actions were Linsey v. Kelman, No.15,396 (D. Conn. March 19, 1975), and Dunn v. MorkapPublishing Co., No. 7250 (Md. Cir. Ct. 1974) (bothreported in Goodale, supra note 45, at 331-33).

10 464 F.2d 986 (8th Cir. 1972). In this case, the mayorof St. Louis sued the publisher and a reporter for Lifemagazine after Life printed a story linking the mayorwith organized crime.

'02 Id. at 993.13 Id. at 994.1o4 Id. at 994-95 & n.12.

[Vol. 70

THE FALLACY OF FARBER

cordingly established a higher standard for disclo-sure. In Baker v. F & F Investment,s the SecondCircuit recognized a public interest in a reporternot being forced to reveal his sources and then heldthat, in this particular case, that public interestoutweighed the public and private interest in com-pelled testimony. The Baker court ruled that theplaintiffs had not shown that they had exhausted

'05470 F.2d 778 (2d Cir. 1972), ter. denied, 411 U.S.966 (1973). This case involved a civil rights class actionbrought on behalf of black home buyers against realestate agents who were alleged to have discriminated intheir sales practices. The journalist who was deposed bythe plaintiffs had written a story based on an interviewwith one real estate agent, but the information was givenonly after the reporter promised confidentiality. Thereporter made it apparent during his deposition that hewas sympathetic to the plaintiffs' cause, but he would notreveal his source.

Several cases on the federal and state levels have citedBaker for the proposition that newsmen are entitled to aqualified privilege and should not be required to discloseconfidential sources when they are not parties to the civillitigation being contested. In Democratic Nat'l Comm.v. McCord, 356 F. Supp. 1394 (D.D.C. 1973), a civilaction arising out of the Watergate burglaries, represent-atives of President Nixon's Committee for the Re-Elec-tion of the President subpoenaed a large number ofjournalists from several major newspapers and news-magazines for depositions and to obtain all of their notes,photographs, and tapes relating to the break-ins. Inquashing the subpoenas, the court distinguished Branzburgas a criminal case, said the plaintiffs had not met theGarland "heart of the claim" test, and cited Baker asprecedent for a qualified privilege.

Cases that have since adopted either the Baker orMcCord standards or both explicitly include: Poirier v.Carson, 537 F.2d 823 (5th Cir. 1976) (no disclosure ofsource); Gulliver's Periodicals Ltd. v. Charles Levy Cir-culating Co., 455 F. Supp. 1197 (N.D. Il. 1978) (nodisclosure ofsource or information); Citicorp v. InterbankCard Ass'n, 4 MED L. REP. (BNA) 1429 (S.D.N.Y. 1978)(no disclosure of source); Altemose Constr. Co. v. Build-ing & Constr. Trades Council, 443 F. Supp. 489 (E.D.Pa. 1977) (no disclosure of unpublished information);Loadholtz v. Fields, 389 F. Supp. 1299 (M.D. Fla. 1975)(no disclosure of published or unpublished information);Apicella v. McNeil Laboratories, Inc., 66 F.R.D. 78(E.D.N.Y. 1975) (no disclosure of source or information);Connecticut State Bd. of Labor Relations v. Fagin, 33Conn. Supp. 204, 370 A.2d 1095 (Super. Ct. 1976) (nodisclosure of source); Spiva v. Francouer, 39 Fla. Supp.49 (Cir. Ct. 1973) (no disclosure of source or information);Opinion of the Justices, 2 MED. L. REP. (BNA) 2083(N.H. Sup. Ct. 1977) (no disclosure of sources); MacKayv. Driscoll, 3 MED. L. REP. (BNA) 2582 (N.Y. Sup. Ct.1978) (no disclosure of information); and Dallas Oil &Gas, Inc. v. Mouer, 533 S.W.2d 70 (rex. Ct. Civ. App.1976) (no disclosure of source). For a decision contrawhich adopted Baker/McCord standards and still re-quircd disclosure, see Winegard v. Oxberger, -Iowa-,258 N.W.2d 847 (1977), cert. denied, 436 U.S. 905 (1978).

alternative sources of information to learn thename of a confidential news source, nor had theydemonstrated that the source's identity went to the

heart of their claim.6

In Silkwood v. Kerr-McGee Corp.,10 7 the Tenth Cir-

cuit extended Baker protection to an independentproducer preparing a documentary film, ruling

that one did not have to be a reporter on a news-paper to qualify for a journalist's privilege.ls

The 1975 contempt convictions of two WestVirginia reporters were first overturned, then lateraffirmed by the Fourth Circuit in United States v.Steelhammer,'° though the court vacated the jour-nalists' unserved sentence of six months in jail. Thedecision grew out of a civil contempt hearing heldto determine whether members of a coal miners'union had violated a court order prohibiting wild-cat strikes. Two reporters for the Charleston Gazette

were held in contempt of court for refusing totestify about what they had seen or heard at aunion rally. The convictions were initially reversedby the appellate court on the ground that theinformation could have been obtained from otherpersons who-had attended the rally," 0 but on a

rehearing en banc, the contempt judgments werereinstated by a four-to-three vote. The full courtadopted the reasoning of the dissenting judge in

the-earlier case, who said that since the reportersadmitted their information came not from confi-dential sources, but from an open meeting, theyshould be required to testify. The judge said hereached this conclusion by applying Justice Pow-eli's Branzburg balancing test."'

In all, twenty-eight reported post-Branzburg civil

cases in which information was sought from anonlitigant journalist have been decided in thestate and federal courts." 2 In only three cases were

'6 470 F.2d at 783. Interestingly, the Baker court,reaching its decision just a few months after Branzburg,said that federal law did not recognize either an absoluteor conditional newsman's privilege, id. at 781, but thatsame Second Circuit, in deciding Herbert v. Lando fiveyears later, cited both Branzburg and Baker in its accept-ance of a conditional protection for the press. See 568F.2d at 977-78, 986.

107 563 F.2d 433 (10th Cir. 1977).'8Id. at 436-37.'o"539 F.2d 373 (4th Cir. 1976), aFfden bane, 561 F.2d

539 (4th Cir. 1977)."o 539 F.2d at 375.". Id. at 376."

2 Sixteen of these cases are discussed in notes 105, 107& 109 supra. Twelve other civil cases have not utilized theBaker/MeCord standards in dealing with subpoenas di-rected to journalists who were not parties to the litigation.

19791

the reporters required to testify. In addition to theSteelhammer decision, a second case involved aninterpretation of a state shield law, with an Ohiocourt holding that sources were protected, but

confidential information was not. t" 3 The third case,

decided by the Iowa Supreme Court, resulted

in an order to a reporter to reveal both her news

source and confidential information." 4 Althoughthe court said it was "persuaded there exists a

fundamental newsperson privilege,"" 5 it con-cluded that the plaintiff had shown "an undiluted

compelling state interest of such persuasive force as

to subordinate" the privilege.1 1 The plaintiff had

brought a defamation and invasion of privacy

Concern for a "chilling effect" on the first amendmentinterests involved was the reason given in three cases forquashing subpoenas. See Coira v. Depoo Hosp., 4 MED.

L. REp. (BNA) 1692 (Fla. Cir. Ct. 1978) (no disclosure ofpublished or unpublished information); Hendrix v. Lib-erty Mutual Ins. Co., No. 75-1616 (Fla. Cir. Ct. Dec. 11,1975) (no disclosure of nonconfidential information);Schwartz v. Almart Stores, No. 74-35547 (Fla. Cir. Ct.,June 18, 1975) (both reported in Goodale, supra note 45,at 321-22) (no disclosure of information, whether or notfrom confidential source); Amato v. Fellner, 4 MED. L.REP. (BNA) 1552 (Wis. Cir. Ct. 1978) (also citing stateconstitution for nondisclosure of information sought).

Carey v. Hume, a defamation case, see note 97 andaccompanying text supra, was cited as authority for thequashing of subpoenas in two nondefamation cases. SeeIn re Consumers Union, 4 MED. L. REP. (BNA) 2119(S.D.N.Y. 1978) (no disclosure of information); Gilbertv. Allied Chem. Corp., 411 F. Supp. 505 (E.D. Va. 1976)(no disclosure of confidential sources).

State shield laws were relied upon successfully bynonparty newsmen in four cases. See Dumez v. HaumaMun. Fire & Police Civil Serv. Bd., 341 So. 2d 1206 (La.Ct. App. 1976) (no disclosure of source); Davis v. Davis,88 Misc. 2d 1, 386 N.Y.S.2d 992 (Fam. Ct. 1976) (nodisclosure of information); Greenwood Village, Inc. v.First Fed. Say. & Loan, Bankruptcy No. 73-996 (N.D.Ohio, Feb. 2, 1976) (no disclosure ofsources), and Taylorv. Tennessee Democratic Executive Comm., No. 79507-1R.D. (Tenn. Chancery Ct., Mem. Opinion June 24, 1975)(no disclosure ofsources) (both reported in Goodale, supranote 45, at 323, 327). But see Forest Hills Util. Co. v. Cityof Heath, 37 Ohio Misc. 30,302 N.E.2d 593 (Ct. CommonPleas 1973) (shield law protected only sources and notinformation).

In another case, In re Nomination Paper of Tracy, No.75-8108-01-6 (Pa. Ct. Comm. Pleas Sept. 3, 1975) (re-ported in Goodale, supra note 45, at 322.), the courtquashed a subpoena that would have required disclosureof confidential sources, but no opinion was issued.

113 See Forest Hills Util. Co. v. City of Heath, 302N.E.2d 593 (Ohio Ct. Comm. Pleas 1973).

14 See Winegard v. Oxberger, -Iowa-, 258 N.W.2d847 (1977), cert. denied, 436 U.S. 905 (1978).

's-Iowa at -, 258 N.W.2d at 850."

6 Id. at -, 258 N.W.2d at 852.

action against an attorney who had provided areporter with facts from which she had written astory about the plaintiff. Since the reporter was theonly witness to what the lawyer had actually said,the Iowa court ruled the plaintiff had met what itdefined as the three Garland, Baker, and Cervantestests: (1) the information was necessary or criticalto the involved cause of action or defense pleaded;(2) other reasonable means available by which toobtain the information sought had been exhausted;and (3) it did not appear from the record that theaction or defense was patently frivolous.1 17

2. Grand Jury Proceedings

Grand jury proceedings were the context inwhich the four Branzburg cases arose and on thebasic question of whether newsmen can be com-pelled to appear and testify before grand juries,Branzburg still controls. In the seven years since theSupreme Court's 1972 decision, at least elevenfederal and state court decisions have been handeddown which cite Branzburg as their authority forrejecting privilege claims in the grand jury con-text.

18

117 Id.118 Decisions following Branzburg include: In re .Lewis,

501 F.2d 418 (9th Cir. 1974), cert. denied, 420 U.S. 913(1975) and Lewis v. United States, 517 F.2d 236 (9th Cir.1975) (two cases involving a Los Angeles radio stationgeneral manager who refused to turn over the originalsof tape recordings from various radical groups, includingthe Symbionese Liberation Army, concerning bombingsand the Patty Hearst kidnaping, even though he hadprovided police with copies of the tapes. In both cases,the Ninth Circuit ruled the manager had no first amend-ment right to refuse the grand jury's subpoena ducestecum); In re McGowan, 298 A.2d 339 (Del. Super. Ct.1972), rev'don other grounds, -Del.-, 303 A.2d 645 (1973)(newspaper photographer was ordered to turn over pic-tures of an antibusing demonstration to state attorneygeneral's office, the lower court holding that the attorneygeneral had full investigative powers and was in the sameposition as the grand jury in Branzburg); In re Tierney, 328So. 2d 40 (Fla. Dist. Ct. App. 1976) (reporter could notrefuse to testify about source of grand jury "leaks");Lightman v. State, 15 Md. App. 713, 294 A.2d 149, aff'd,266 Md. 550, 295 A.2d 212 (1972), cert. denied, 411 U.S.951 (1973) (neither state shield law, nor the first amend-ment permitted a reporter to refuse to disclose a newssource's identity to a grand jury investigating drug use;also discussed at note 45 supra); In re Suffolk CountyGrand Jury, (Mass. Super. Ct. 1976) (reported in Good-ale, supra note 45, at 306) (editors had to turn overtranscript of interview with the mayor of Boston to agrand jury investigating alleged bribery); Grand Jurorsfor Middlesex County v. Wallace, (Mass. Super. Ct., Nov.21, 1974) (reported in Goodale, supra note 45, at 310),aff'd on other grounds, 343 N.E.2d 844 (Mass. 1976), (re-porters could not on first amendment grounds refuse to

COMMENTr [Vol. 70

THE FALLACY OF FARBER

Beyond the basic holding of Branzburg however,two other problems concerning grand juries andjournalists have emerged to confront the courts.The first is a direct outgrowth of the Branzburgposition. Assuming that the first amendment doesnot free a newsman from his responsibility to ap-pear before a grand jury, to what extent, if any,might it limit the scope of questioning to which heis required to respond? Bursey v. United States,119 a

Ninth Circuit decision announced just one dayafter Branzburg, provides the most comprehensivetreatment of this issue.

The second problem arises out of the grandjury'straditional obligation to keep its proceedings secret.In recent years, "leaks" by insiders to reportershave occasionally resulted in newspaper stories thatrevealed what had occurred during secret grandjury sessions. Courts have attempted to punish thepersons responsible for these leaks, but to do so, itusually is necessary to question the newsmen in-volved and to order disclosure of confidential

testify about the source of a grand jury "leak," althoughthey could plead the fifth amendment); In re Bridge, 120NJ. Super. 460,295 A.2d 3 (App. Div.), aff'd, 62 NJ. 80,299 A.2d 78 (1972), cert. denied, 410 U.S. 991 (1973)(neither state shield law, nor the first amendment per-mitted a reporter to refuse to answer grand jury questionson unpublished information from known news source;also discussed at note 45 supra); People by Fisher v. Dan,41 App. Div. 2d 687, 342 N.Y.S.2d 731, appeal dismissed,32 N.Y.2d 764, 344 N.Y.S.2d 955 (1973) (neither stateshield law, nor the first amendment permitted newscasteror cameraman to refuse to answer grand jury questionsconcerning their personal observations during a prisonriot, though they were not compelled to identify newssources; also discussed at note 45 supra); Andrews v.Andreoli, 92 Misc. 2d 910, 400 N.Y.S.2d 442 (Sup. Ct.,400 1977) (discussed at note 45 supra); and In re Powers,4 Med. L. REP. (BNA) 1600 (Vt. Dist. Ct. 1978) (reporterscould not refuse to testify as to sources and informationbefore an inquest investigating drug law violations).

But see In re Bensky, Misc. 75-18-OJC (N.D. Cal. April14, 1975) (reported in Goodale, supra note 45, at 305), inwhich a grand jury had subpoenaed a tape recording ofreading by fugitive Weather Undeiground radicals thathad been sent to a California radio station. Respondingto a factual situation substantially similar to that in theLewis cases, 517 F.2d 236 (9th Cir. 1975) and 501 F.2d418 (9th Cir. 1974), a federal court quashed thesubpoena,holding that, given the nature of the recording, it wastoo speculative as to whether the tape would lead toinformation about criminal activities.

People v. Dillon, No. 70-4 (N.Y. Sup. Ct. June 25,1971) (Reported in Goodale, supra note 45, at 305 as In reCBS) was a pre-Branzburg ruling in which ajudge quashedas overbroad a subpoena for videotapes issued by aspecial prosecutor investigating campus disturbances.

19 466 F.2d 1059 (9th Cir. 1972).

sources. Several reporters and editors have beenheld in contempt of court for refusing to identifytheir insider sources, but in one instance, a re-porter's conviction was overturned after the courtapplied a balancing test to the case.12°

As to the scope of grand jury questioning, judgesin at least two cases have suggested that the Branz-burg holding has been augmented by the tests enun-ciated in Bursey. 2' That case involved two membersof the Black Panther Party, Sherrie Bursey andBrenda Presley, who also worked as reporters andeditors for the party's national newspaper. Theywere called several times to appear before a federalgrand jury that was investigating an alleged threaton the life of President Nixon and rumored BlackPanther interference with American militaryforces. During their grand jury appearances thegovernment also sought to question Bursey andPresley about the operation and staff of the party'snewspaper, but they refused to answer. The NinthCircuit held that the questions dealing withthreatened violence and the military interferencewere legitimate, but ruled the two women couldnot be compelled to testify about the publicationand distribution of Black Panther newspapers orpamphlets because those inquiries violated the firstamendment rights of free association and freedomof the press.I

22

The Bursey court did not conclude that journal-ists could never be questioned about their work,but it did hold that "[w]hen governmental activitycollides with First Amendment rights, the Govern-ment has the burden of establishing that its inter-ests are legitimate and compelling and that theincidental infringement upon First Amendmentrights is no greater than is essential to vindicate itssubordinating interests. 3Is

In the grand jury context, the court said thegovernment would be unable to meet this burdenunless it demonstrated that:

the Government's interest in the subject matter ofthe investigation is "immediate, substantial, andsubordinating," that there is a "substantial connec-tion" between the information it seeks to have thewitness compelled to supply and the overridinggovernmental interest in the subject matter of theinvestigation, and that the means of obtaining the

120 See Morgan v. State, 337 So. 2d 951 (Fla. 1976).12l See United States v. Liddy, 478 F.2d 586 (D.C. Cir.

1972) (Leventhal,J., opinion for extending stay); Morganv. State, 325 So. 2d 40 (Fla. Dist. Ct. App. 1975), rev'd onother grounds, 337 So. 2d 951 (Fla. 1976).

'2 466 F.2d at 1086-88.'23 Id. at 1083.

19791

information is not more drastic than necessary toforward the asserted governmental interest.' 24

In those cases where newspapers have published"leaked" reports of grand jury proceedings, courtsnormally have ordered disclosure of the confiden-tial source, though even in this area of concededjudicial supremacy, judges have evinced some con-cern for the competing first amendment interest.

In a 1977 case involving the New York Times andthe sealed results of a grand jury's investigationinto the Internal Revenue Service's "OperationLeprechaun," involving alleged probes by IRSagents into the drinking and sexual habits of prom-inent taxpayers, a federal judge, while holding that"there is no constitutional right to withhold sourcesof grand jury leaks," did permit the disclosure tobe made in camera. 12

5

A California appellate court ruled that a defend-ant's right to a fair trial justified sealing a grandjury report until after the completion of the trial,and outweighed a conditional first amendmentprivilege which it said was granted by Branzburgand Farr v. Pitchess.1 26 The court did concludehowever, that under the California shield law, thenewspaper was only obligated to disclose its sourceif that person had been directly subject -to the

court's gag order.127

'24 Id., relying on standards set in Gibson v. FloridaLegislative Investigation Comm., 372 U.S. 539, 551, 557(1963).

A state court decision which dealt with the scope ofgrand jury questioning was In re Tierney, 328 So. 2d 40(Fla. Dist. Ct. App. 1976). In that case, the court heldthat a journalist could claim a first amendment privilegeto refuse to answer grand jury questions only if she coulddemonstrate that the questions were not relevant andmaterial to a good faith investigation. In Tierney, thereporter was unable to satisfy that requirement.

,2 5 See In re Disclosure of Grand Jury Report, 2 MED.

L. REP. (BNA) 1225, 1231, 3 MED. L. REP. (BNA) 1161,'1163 (S.D. Fla. 1977). The benefit of such an in camerainspection will be analyzed further in the examination ofthe Farber case infra.

The New York Times also was involved in a similarcase decided two years before Branzburg in In re GrandJury, 315 F. Supp. 681 (D.Md. 1970). The court heldthat while it had the power, under the first amendment,to inquire into the source of a grand jury leak of a sealedindictment that the Times had published, it did not feelsuch an action was warranted in this case because therewas no indication that anyone under the court's directauthority was responsible for the leak.

'26 522 F.2d 464 (9th Cir. 1975), cert. denied, 427 U.S.912 (1976).

'2, Rosato v. Superior Court, 51 Cal. App. 3d 190, 124Cal. Rptr. 427 (1975), cert. denied, 427 U.S. 912 (1976).See also Farr v. Superior Court, 22 Cal. App. 3d 60, 99Cal. Rptr. 342 (1971), cert. denied, 409 U.S. 1011 (1972);note 45 supra.

The one case that contradicts this general trendpresented a factual situation that will not often berepeated. After investigating charges of local gov-ernmental corruption, a Florida grandjury decidednot to hand down any indictments, though itsreport did criticize several city officials. Under thatstate's law, disclosure of such critical reports isforbidden until the unindicted persons have hadtime to file a motion to repress. A reporter whowrote a story revealing the grand jury's decisionwas found guilty of criminal contempt after sherefused to disclose her source. However, the Florida

Supreme Court reversed the conviction, holdingthat the persons criticized in the report, who mightnot have succeeded in suppressing the documentin any case, were the only ones affected by pre-mature disclosure. The court concluded that theirinterest did not outweigh the conditional privilegewhich it detected in Branzburg.'

28

3. Criminal Cases

As in the area of civil litigation, courts in crimi-nal cases generally seem to be acknowledging theexistence of a conditional or qualified privilege forthe press. Most courts attribute the initial recog-nition of this privilege to Branzburg,129 although atleast two judges have ruled that Branzburg providesno foundation for either an absolute or qualified

privilege in criminal cases.130

Admitting the existence of a constitutional news-man's privilege is one thing; permitting its use ina specific situation is another. Since Branzburg,courts have granted immunity to journalists infifteen of twenty-seven of the reported criminal

"z Morgan v. State, 337 So. 2d 951, 954-55 (Fla.1976). The Morgan balancing test was followed in Stateex. re. Bradenton Herald v. Garst, County Judge, No. 76-223-7F (Fla. Cir. Ct. 1976) (reported in Goodale, supranote 45, at 311).

'2' Decisions that have cited Branzburg as the source forrecognition of a qualified privilege in criminal casesinclude: Farr v. Pitchess, 522 F.2d 464, 467 (9th Cir.1975), cert. denied, 427 U.S. 912 (1976); United States v.Orsini, 424 F. Supp. 229, 232 (E.D.N.Y. 1976), aff'dwithout opinion, 559 F.2d 1206 (2d Cir.), cert. denied, 434U.S. 997 (1977); State v. Sandstrom, 224 Kan. 573, 576,581 P.2d 812, 814 (1978), cert. denied, 99 S. Ct. 1265(1979); People v. Marahan, 81 Misc. 2d 637, 642, 368N.Y.S.2d 685, 691 (Sup. Ct. 1975); State v. St. Peter, 132Vt. 266, 269-70, 315 A.2d 254, 255 (1974); Brown v.Commonwealth, 214 Va. 755, 757, 204 S.E.2d 429, 431,cert. denied, 419 U.S. 966 (1974); Zelenka v. State, 83 Wis.2d 601, 619, 266 N.W.2d 279, 287 (1978).

10 See People v. Dupree, 88 Misc. 2d 791, 795, 388N.Y.S.2d 1000, 1002-03 (Sup. Ct. 1976); People v. Mon-roe, 82 Misc. 2d 850, 854, 370 N.Y.S.2d 1007,.1011 (Sup.Ct. 1975).

COMMENT [Vol. 70

THlE FALLACY OF FARBER

cases in which it was sought; disclosure has beenordered in only nine of the cases.' 3 ' No singleclearly enunciated test has emerged from the opin-ions, though the issues of "relevancy" and "mate-

131 Those reported criminal cases in which courts haveaccepted first amendment claims of newsman's privilegethrough early 1979 are: United States v. Pretzinger, 542F.2d 517 (9th Cir. 1976) (news source's identity soughtby defendant); United States v. DePalma, 4 MED. L.REP. (BNA) 2499 (S.D.N.Y. 1979) '(defendant's motionfor mistrial denied and subpoena to learn source ofmagazine photograph used as trial exhibit quashed);United States v. Orsini, 424 F. Supp. 229 (E.D.N.Y.1976), afl'd without opinion, 559 F.2d 1206 (2d Cir.), cert.

denied, 434 U.S. 997 (1977) (news source's identity soughtby defendant); United States v. Calvert, No. 74-107 CR(E.D.Mo. Apr. 26, 1974) (reported in Goodale, supra note45, at 308) (news source's identity sought by defendant);Laughlin v. State, 323 So. 2d 691 (Fla. Dist. Ct. App.1975) (news source's identity sought by defendant); Flor-ida v. Morel, 4 MED. L. REP. (BNA) 2309 (Cir. Ct. 1979)(published and unpublished information sought by de-fendant); Florida v. Beattie, 4 MED. L. REP. (BNA) 2150(Cir. Ct. 1979) (videotape of broadcast and unpublishedinformation sought by defendant); Florida v. Petrantoni,4 MED. L. REP. (BNA) 1554 (Cir. Ct.1978) (publishedand unpublished information sought by defendant); Flor-ida v. Hurston, 3 MED. L. REP. (BNA) 2295 (Cir. Ct.1978) (taped interviews with defendant sought by prose-cution); State v. Stoney, 42 Fla. Supp. 194 (Cir. Ct. 1974)(unpublished information sought by defendant for im-peachment purposes); People v. Monroe, 82 Misc. 2d850, 370 N.Y.S.2d 1007 (Sup. Ct. 1975) (reporters' notesand television tapes sought by defendants); People v.Marahan, 81 Misc. 2d 637, 368 N.Y.S. 2d 685 (Sup. Ct.1975) (news source's identity and confidential informa-tion sought by defendant); People v. Barnes, Indict. No.3194/74 (N.Y. Sup. Ct., Bronx Cty. 1975) (reported inGoodale, supra note 45, at 318) (unpublished informationsought by defendant for impeachment purposes); Brownv. Commonwealth, 214 Va. 755, 204 S.E.2d 429, cert.denied, 419 U.S. 966 (1974) (news source's identity soughtby defendants); and Zelenka v. State, 83 Wis. 2d 601,266 N.W.2d 279 (1978) (news source's identity sought bydefendant). -

Reported criminal cases in which courts have rejectedfirst amendment privilege claims (not including the Farbercase) are: Farr v. Pitchess, 522 F.2d 464 (9th Cir. 1975)(news source's identity sought by court policing its ownproceedings); United States v. Liddy, 354 F. Supp. 208(D.D.C.), affd, 478 F.2d 586 (D.C. Cir. 1972) (tape ofinterview with news source sought by defendants); Statev. Sandstrom, 224 Kan. 573, 581 P.2d 812 (1978), cert.denied, -U.S.-, 99 S. Ct. 1265 (1979) (news source'sidentity sought by defendant); Michigan v. Smith, 4MED. L. REP. (BNA) 1753 (Cir. Ct. 1978), leave to appealdenied, 4 MED. L. REP. (BNA) 1761 (Mich. 1978) (recordsof conversations with defendant sought by state); Statev. De La Roche, 3 MED. L. REP. (BNA) 2317 (NJ. Super.Ct. 1977) (tape of interview with defendant sought bystate); New York v. LeGrand, 4 MED. L. REP. (BNA)1897 (Sup. Ct.), affd, 4 MED. L. REP. 2524 (App. Div.1979) (confidential information sought by defendant-no privilege found because former journalist had become

riality" are mentioned most often by judges. Thismeans that in cases where a court feels that eitherthe identity of a news source or the confidentialinformation in a reporters possession is relevantand material to the guilt or innocence of the ac-cused, or to the classification of the offense, it willdeny the privilege claim and order the name ormaterial disclosed.It 2 If, however, the newsman'sconfidential information is only "collateral ' ' t33 or"tangential ' '134 to the case, the court will acceptthe first amendment argument and uphold thereporter's refusal to testify. This is another appli-cation of post-Branzburg "balancing" of privilegeclaims.

In addition to the question of relevancy andmateriality, state supreme courts in Vermont andVirginia have added a second test: whether theinformation sought is otherwise available from analternative source.1ss These two standards taken

a free-lance author); New York v. Zagarino, 4 MED. L.REP. (BNA) 1693 (Sup. Ct. 1978) (notes of interview withnews source sought by defendant); People v. Dupree, 88Misc. 2d 791, 388 N.Y.S.2d 1000 (Sup. Ct. 1976) (pho-tographs of scene of crime sought by state); In re Dan, 80Misc. 2d 399,363 N.Y.S.2d 493 (Sup. Ct. 1975) (personalobservations at prison riot sought by state).

Other reported cases did not involve a final appellatedetermination as to the reporter's privilege: United Statesv. Nuccitelli, No. 18-187 (D.NJ. 1978) (reported in Good-ale, supra note 45, at 316) (all notes, documents andrecords compiled by reporters sought by defendants);CBS v. Superior Court, 4 MED. L. REP. (BNA) 1568 (Cal.Ct. App. 1978) (filmed outtakes sought by defendants);and State v. St. Peter, 132 Vt. 266, 315 A.2d 254 (1974)(news source's identity sought by defendant). Though thecourt in St. Peter did not decide whether the reporterwould be permitted to exercise his newsman's privilege,it did acknowledge a first amendment basis for such aclaim. The Nuccitelli court refused to quash the subpoena,but also said it would not enforce the defendant's overlybroad "fishing expedition."

'32 See State v. Sandstrom, 224 Kan. 573, 577, 581 P.2d812, 815 (1978), cert. denied, 99 S. Ct. 1265 (1979).

33 See Brown v. Commonwealth, 214 Va. 755, 758,

204 S.E.2d 429, 431, cert. denied, 419 U.S. 966 (1974);.People v. Monroe, 82 Misc. 2d 850, 854, 370 N.Y.S. 2d1007, 1013 (Sup. Ct. 1975).

"" See Zelenka v. State, 83 Wis. 2d 601, 620, 266N.W.2d 279, 287 (1978).135 The Virginia Supreme Court has provided the most

complete enunciation of the "materiality/alternativesources" test to date. Justice Poff described it in Brownv. Commonwealth, 214 Va. 755, 204 S.E.2d 429, cert.denied, 419 U.S. 966 (1974):

We are of opinion that when there are reasonablegrounds to believe that information in the possessionof a newsman is material to proof of any element ofa criminal offense, or to proof of the defense assertedby the defendant, or to a reduction in the classifi-cation or gradation of the offense charged, or to a

together are easily recognized as a criminal trialvariant on the first two disclosure criteria recom-mended by Justice Stewart in his Branzburg dis-sent. 1' The Justice's third suggested requirement,demonstration of "a compelling and overridinginterest in the information," has not been explicitlyadopted in subsequent state criminal decisions,though the tone of several of the opinions suggeststhat such a standard is to be implied."3 7

Most of the criminal cases involving privilegeclaims have been decided in state, rather thanfederal courts, and most of the original disclosuremotions have been made on behalf of defendantswho were seeking either the identity of witnesses orinformation for impeachment purposes. The Su-preme Court of Virginia has said that:

The Sixth Amendment rights of a citizen accusedof crime ... to "call for evidence in his favor" arerights of no less dignity than the right of the gov-ernment to prosecute. Nor are society's demandsthat the privilege yield to the legitimate needs oflaw enforcement superior to the demands of dueprocess that the privilege yield to the legitimateneeds of the accused to defend himself. 38

It is worth noting, however, that defendants

have had significantly less success than prosecutorsin securing court orders for disclosure. In reported

cases between 1972 and 1979,judges directed news-men to turn over information to defendants in onlyfour of seventeen instances, while the state wonfavorable rulings in four of five cases.'38 Anotherdecision requiring disclosure involved a court's or-

mitigation of the penalty attached, the defendant'sneed to acquire such information is essential to afair trial; when such information is not otherwiseavailable, the defendant has a due process right tocompel disclosure of such information and the iden-tity of the source; and any privilege of confidentialityclaimed by the newsman must, upon pain of con-tempt, yield to that right.

214 Va. at 757, 204 S.E.2d at 431 (emphasis in original).This explanation drew upon the Supreme Court of Ver-mont's test in State v. St. Peter, 132 Vt. 266, 315 A.2d254 (1974) and was adopted by the Kansas SupremeCourt in State v. Sandstrom, 224 Kan. 573, 581 P.2d 812(1978), cert. denied, -U.S.-, 99 S. Ct. 1265 (1979).

2db See 408 U.S. at 743; note 75 & accompanying textsup ra.

137 References to "overriding" need or concern arefound in State v. St. Peter, 132 Vt. at 271, 315 A.2d at256, and Zelenka v. State, 83 Wis. 2d at 616, 618, 266N.W.2d at 286-87, though in neither case is it made anexplicit standard for disclosure.

38 Brown v. Commonwealth, 214 Va. 755, 757, 204S.E.2d 429, 431, cert. denied, 419 U.S. 966 (1974).

139 See note 131 supra.

der on its own behalf where the judge sought tolearn the source of a "leaked" deposition.140

One commentator explaining the trend towardfavoring prosecution requests noted that "Itihefault lies not in deficient protection of the criminaldefendant's interest, but in an overgenerous awardof prosecutorial discretion in determining whencompulsory disclosure of press confidences is war-ranted.'14' Another possible explanation for thispattern favoring the prosecution appears to lie inthe "materiality" standard. Defense attorneys oftenseek evidence from newsmen that has little bearingon the actual guilt or innocence of their clients.When this occurs, courts have not been inclined torevoke the reporter's privilege.

In cases where either the defendant or the pros-ecution has sought information, notes, tape record-ings, or video outtakes, courts occasionally haveagreed to order disclosure when the identity of thesource is known. The first post-Branzburg case toadopt this approach was United States v. Liddy.1

42

Alfred Baldwin, a member of the infamous WhiteHouse "Plumbers Unit," had agreed to become agovernment witness against the Watergate burglarsin return for a grant of immunity. Prior to trial, hegave an interview to reporters from the Los AngelesTimes which resulted in several stories appearing inthat newspaper. The defendants then subpoenaed"all papers, recordings and transcripts" of the in-terview, hoping to use them to impeach Baldwin'stestimony at trial. The court noted that the news-paper was not seeking to protect the identity of anynews source: "Mr. Baldwin's name is emblazoi~edon the pages of the Los Angeles Times ... for theworld to see. 143 The court then discussed theimpact of Branzburg and concluded: "If impeach-ment evidence is available, it is critical that thedefendants have access to it. If the 'striking of aproper balance' is required, as Mr. Justice Powellsuggests, this Court will always strike the balancein favor of due process.' The opinion did notmention the materiality, alternative sources, orcompelling need tests recommended by JusticeStewart. But the focus on the previous disclosureof the news source as a rationale for requiring thenewspaper to turn over its information has been

140 See Farr v. Superior Court, 22 Cal. App. 3d 60, 99Cal. Rptr. 342 (1971), cert. denied, 409 U.S. 1011 (1972).

:41 Murasky, supra note 69, at 898.242 354 F. Supp. 208 (D.D.C.), affd, 478 F.2d 586 (D.C.

Cir. 1972). This was one of the several Watergate-relatedcases presided over by District Judge John Sirica.

143 354 F. Supp. at 212..4Id. at 215.

COMMENT [Vol. 70

THE FALLACY OF FARBER

cited or otherwise followed by a few courts.1,45

Other judges however, have chosen to apply onlythe materiality or relevancy tests to situationswhere the source already was known and thus haveignored the Liddy approach.

146

In only one case prior to Farber did a defendantseek both a reporter's confidential notes and theidentity of his source. That occurred in People v.Marahan,147 a 1975 New York case in which the twodefendants sought to impeach the testimony ofpolice officers following an arrest for illegal posses-sion of weapons. A county supreme court quashedsubpoenas directed to a New York Daily Newsreporter, holding that the information sought wascollateral to the question of guilt. The court heldthat requiring the reporter to divulge either theidentity of the source or the information undersuch circumstances would violate his rights underboth the first amendment and the New York shieldlaw.

148

IV. THE COMPLICATED CASE OF MYRON FARBER

For Myron A. Farber, the trail that would leadhim to his confrontation between journalist andjurist began in August 1975. Farber, a reporterwith the New York Times since 1966, was assignedby his editors in August 1975 to follow up on a tipconcerning a ten-year-old unsolved mystery, thesuspicious, but never explained deaths of thirteenpersons at a small hospital in Oradell, New Jer-sey.149 Farber spent the next four months trying topiece' the puzzle together. Finally, on January 7and 8, 1976, the results of his, investigation ap-peared in print.'5W In two dramatic front-page sto-ries, Farber laid out a carefully researched casethat strongly suggested a doctor on the hospital's

14 See CBS v. Superior Court, 4 MED. L. REP. (BNA)1568 (Cal. Ct. App. 1978) (Liddy not cited, but similarrationale followed in rejecting state shield law claim);State v. De La Roche, 3 MED. L. REP. (BNA) 2317 (N.J.Super. Ct., 1977). Contra People v. Marahan, 81 Misc. 2d637, 368 N.Y.S.2d 685 (Sup. Ct. 1975) (distinguishedLiddy). See also New York v. Zagarino, 4 MED. L. REP.(BNA) 1693 (Sup. Ct., 1978) (distinguished Marahan).

1'6 See Florida v. Morel, 4 MED. L. REP. (BNA) 2309(Cir. Ct. 1979); Florida v. Hurston, 3 MED. L. REP.(BNA) 2295 (Cir. Ct. 1978); People v. Monroe, 82 Misc.2d 850, 370 N.Y.S.2d 1007 (Sup. Ct. 1975).

14' 81 Misc. 2d 637, 368 N.Y.S.2d 685 (Sup. Ct. 1975).'48Id. at 643-44, 650-51,368 N.Y.S.2d at 692, 699.149 For one account of how both the Jascalevich and

Farber cases developed out of the reporter's initial inves-tigation and stories, see N.Y. Times, Nov. 28, 1978, § B,at 8, col. 1.

See id., Jan. 7, 1976, at i, col. 1; id., Jan. 8, 1976, at1, col. 5.

surgical staff had murdered patients with injectionsof a muscle relaxant drug called curare. Becauseno official accusations had ever been brought con-cerning the deaths, Farber identified the physicianonly as "Dr. X."'51

In the first of the "Dr. X" articles, BergenCounty, New Jersey, prosecutor Joseph Woodcockannounced the state had reopened its own investi-gation into the deaths. The evidence uncovered bythat probe was presented to a grand jury. Farberwas not called as a witness before the grand jury,nor were any of his notes subpoenaed. 5 2 On May19, 1976, the grand jury indicted Dr. Mario E.Jascalevich, former chief of surgery at RiverdellHospital, charging him with the murder by poison-ing of five patients."ss The alleged motive was adesire to discredit other physicians on the hospitalstaff.

In November 1977, the defense counsel for Jas-calevich submitted a list of his prospective defensewitnesses, including Farber.15 TheJascalevich trialbegan on February 27, 1978. A subpoena ad testi-ficandum was served on Farber two days later andhe appeared in court on May 24 to testify briefly,outside the jury's presence, about the access he hadbeen given to the state's ten-year-old records on theRiverdell deaths. He declined, however, to answerquestions about how he had obtained a copy of apreviously missing deposition of Dr. Jascalevich,claiming the protection of the New Jersey shieldlaw.1ss

This testimony did not satisfy defense counsel.The attorney insisted that he would have to see theentire file that Farber had amassed during his four-month investigation. According to the defense, thedeaths had resulted from incompetent treatmentprovided by other doctors on the hospital staff.The charges against .Jascalevich, the lawyer ar-gued, had been "concocted" by Farber and prose-cutor Woodcock for "financial gain" and were partof a conspiracy "to advance their careers.""i Thistheory was based on three facts: (1) Prosecutor

151 See id.1s2 Id., July 25, 1978, § B, at 6, col. 4. Also, author's

interview with Sybil Moses, assistant prosecutor, BergenCounty, New Jersey.

163 See State v. Jascalevich, Indictment No. S-495-76;N.Y. Times, May 20, 1976, § A, at 1, col. 2.l' State v. Jascalevich, 158 NJ. Super. 488, 386 A.2d

466 (1978)."' State v. Jascalevich, No. S-495-76, oral opinion oh

motion to quash subpoena duces tecum (NJ. Super. Ct.June 30, 1978). See also N.Y. Times, May 25, 1978, § B,at 4, col. 3.

1w See note 149 supra.

19791

Woodcock had given Farber permission to examinethe state's files on the deaths; (2) Farber haddiscovered, during his research, a copy of the miss-ing 1966 Jascalevich deposition and then turned itover to the prosecutor; and (3) Farber had signeda contract to write a book about the case. Thedefense argued that the conviction of Jascalevichwould stimulate sales of the book and would thusenrich the reporter. 157

Farber had repeatedly denied any collusion withthe prosecutor and also had insisted that there wasnothing in his files that would prove either thedefendant's guilt or innocence." But, because hisfiles contained the names of persons who had beenpromised confidentiality in return for their agree-ment to be interviewed, Farber said he would notpermit his notes to be examined.'5 9

In May, in an ex parte action, the defense ap-plied to the trial court for a subpoena duces tecumdirected against Farber and the New York TimesCo. The defense affidavit requested "all statements,pictures, memoranda, recordings and notes of in-terviews of witnesses for the defense and prosecu-tion ... as well as information delivered to theBergen County Prosecutor's office and contractualinformation relating to the above which are in thepossession, custody or control of" Farber and theTimes.160 In effect, the defense was asking for every-thing Farber had compiled in the course of hisinvestigation. The defense argued that Jascalevichwould be deprived of his sixth amendment right tocompel testimony and confront his accusers if Far-ber were not required to produce all the informa-tion.1

61

The trial court accepted the defense argumentsand agreed to seek the subpoenas. Since Farberlived in New York State and his newspaper's prin-cipal place of business was there, it was necessaryfor the judge to issue a certificate of materialityunder the Uniform Act to Secure the Attendanceof Witnesses from Without a State in CriminalProceedings.'62 This certificate was submitted tothe New York Supreme Court.

Attorneys for Farber and the Times appearedbefore the New York County Supreme Court on

157 id.15

8Id.

159

Id.160 See In re Superior Court, subpoena duces tecum No.

8867/78 (N.Y. Sup. Ct. 1978). See also New York TimesCo. v. Jascalevich, -U.S.-, -, 99 S. Ct. 6, 11 (1978).

161 See note 10 supra.'62 See NJ. STAT. ANN. §§ 2A:81-18 to -23 (West 1976);

N.Y. CRIM PROC. LAw § 640-10 subd. (2) (McKinney1971).

May 31, 1978, to contest the application for thesubpoenas. They argued that the defense affidavitprovided insufficient legal grounds for the trialcourt's certificate of materiality and that the filessought were privileged under both the first amend-ment and the New York and New Jersey shieldlaws.5 The New York court would not permit anoffer of proof of these contentions"8 an - three dayslater, issued the subpoenas duces tecum.65 Theopinion accompanying the subpoena indicatedthat the responsibility for hearing Farber's substan-tive constitutional and statutory objections lay withthe New Jersey courts which were bound to allowfull faith and credit to the laws of New York toprotect the statutory entitlements of New Yorkcitizens.'66

The order was appealed to the appellate divisionof the supreme court and then to Judge Fuchsbergof New York's highest judicial body, the court ofappeals, but the court at both levels held that suchan order could not be appealed under New Yorklaw." 8 The motion to quash a subpoena ducestecum had to be made in the court in which thesubpoena was returnable-in this case, the NewJersey Superior Court.

Attorneys for Farber and the Times argued in theNew Jersey Superior Court that the subpoenasshould be quashed because (1) they were over-broad, especially in light of the first amendmentconsiderations involved; (2) there had been noshowing of materiality or necessity for the docu-ments sought; and (3) Farber's files were protectedfrom compelled disclosure by the Constitution andNew York and New Jersey shield laws." The courtrefused to hear the appellants' arguments or ruleon the merits of the motions to quash until it hadan opportunity to examine the subpoenaed mate-rials in camera.5 One of the Times' attorneys onthe case responded that submitting Farber's notes,even for an in camera inspection, would be "invad-ing the very rights we seek to protect" because thejudge, as a representative of the judiciary, was also

'" See Brief for Appellants at 4-5, In re Farber, No. A-4741-77 (NJ. App. Div. 1978).

164 id.'

5 See Superior Court v. Farber, 94 Misc. 2d 886, 405N.Y.S.2d 989 (Sup. Ct. 1978).

'66 Id. at 886, 405 N.Y.S.2d at 989.67 See N.Y. Civ. PRAC. LAw § 2304 (McKinney 1974).

See also Brief for Appellants at 5.'5 9 See Brief for Appellants at 6.'6 9 See State v. Jascalevich, No. S-495-76, oral opinion

on motion to quash subpoena duces tecum (N.J. Super.Ct.June 30, 1978).

COMMENT [Vol. 70

TIE FALLACY OF FARBER

an agent of the government.'"0 The appellantsurged a threshold determination by the court ontheir arguments, prior to the in camera examina-tion, but the judge refused to do this and insteadset a deadline for compliance with his order toproduce.'

7'

In the next week, both the Appellate Division ofthe Superior Court and the New Jersey SupremeCourt refused to hear appeals of the judge's ruling.The case was then taken before Justices of theUnited States Supreme Court for the first time andon July 11 and 12, 1978, both Justice White andJustice Marshall refused applications for a stay ofthe trial court's order, holding that the case wasnot yet ripe for review. 72 Justice White, the authorof the Branzburg plurality opinion, found reason torefer to that case in his ruling:

Motions to quash subpoenas are not usually ap-pealable in the federal court system.... The appli-cants insist that as a constitutional matter, the rulemust be different where, as here, the subpoena runsagainst a reporter and the press.... There is nopresent authority in this Court that a newsmanneed not produce documents material to the prose-cution or defense of a criminal case, cf. Branzburg v.Hayes..., or that the obligation to obey an other-wise valid subpoena served on a newsman is condi-tioned upon the showing of special circumstances.17

Farber and the Times still refused to turn theirrecords over to the court without a full hearing onthe substantive challenges to the subpoena. Anorder returnable before a different Bergen CountySuperior Court judge was issued directing the ap-pellants to show cause why they should not be heldin criminal contempt of court for their failure tocomply with the order to produce.17

4

During the initial hearing on the criminal con-tempt order, attorneys for Farber argued that theorder had been served on him illegally in NewYork rather than New Jersey. The court thenordered the defense to apply to the trial court foran additional order to show cause in aid of alitigant.'7 5 A failure to comply with this order

"T Statement by Eugene Scheiman; N.Y. Times, July

7, 1978, § B, at 3, col. 3.1' See State v. Jascalevich, No. S-495-76, oral opinion.

on motion to quash subpoena duces tbcum (NJ. Super.'Ct.June 30, 1978).

12 See New York Times Co. v. Jascalevich, -U.S.-,98 S. Ct. 3058, 3060 (1978).

'73 -U.S.-, id. at 3059-60."7 4 See In re Farber, 78 N.J. 259, 394 A.2d 330, 332

(1978). See also Brief for Appellants at 8-9.'17 Brief for Appellants at 8-9.

would mean an additional penalty for the appel-lants, this time for civil contempt of court.

With this directive, the entire process begananew. Again the trial court issued a certificate ofmateriality directed to the New York County Su-preme Court. The certificate included a provision,as required by the Uniform Witness AttendanceAct, that "Myron Farber, upon coming into theState of New Jersey, will be given protection fromarrest or service of process upon him, civil or crim-inal, as set forth in the New Jersey Statute Anno-tated 2A:8-18 et. seq."'176 Again without addressingthe substantive issues, the supreme court orderedFarber to appear.177

Farber returned to New Jersey. While he wasappearing in regard to the civil order in aid of alitigant, a deputy state attorney general soughtpermission to serve the earlier issued criminal con-tempt order. Although attorneys for the reporterargued that he was appearing pursuant to therequirements of the Uniform Witness AttendanceAct and was immune from service under both theexplicit language of the Act and the trial court'scertificate, the judge still permitted the order to beserved upon Farber.17

8

On July 24, the Bergen County Superior Courtfound both Farber and the Times guilty of criminaland civil contempt. The newspaper was fined$100,000 for criminal contempt and Farber wassentenced to six months in jail and fined $1,000 forthe criminal conviction. In an effort to compelproduction of the subpoenaed documents for Jas-calevich, the court also ordered a civil contemptfine of $5,000 a day for the Times and another$1,000 for Farber. The reporter was sentenced toremain in jail until he complied with the civilorder." a The jail sentence for criminal contemptwould not begin until after Farber produced hisfiles, and the time served for civil contempt wouldnot be applied to the criminal sentence.

Later that day, the appellate division of thesuperior court granted a stay of the criminal con-tempt orders, but denied a stay of the orders forrelief of a litigant. Farber spent seven hours in jailJuly 24 and was freed only after a member of thestate's supreme court ordered his release pendingfurther consideration of the case.18°

On July 25, the New Jersey Supreme Court, byidentical five-to-one votes, declined to stay the civil

'76 1d. at 10.'7Id. at 11.'78 M.d at 11-12.'7 78 N.J. -, 394 A.2d at 332.8'°See N.Y. Times, July 26, 1978, § A, at 1, col. 1.

19791

contempt conviction and denied a motion for directcertification, thus refusing to speed up the stateappellate process. Thejustices did permit, however,a temporary stay so that once again, Farber andthe Times could appeal to the United States Su-preme Court.'

The case again went before Justice White. Hedeclined to intervene. This time, the Justice citednot only Branzburg, but also Zurcher v. StanfordDaily, 82 apparently for the proposition that thepress was not entitled to any special protectionunder the first amendment.

There is no present authority in this Court eitherthat newsmen are constitutionally privileged towithhold duly subpoenaed documents material tothe prosecution or defense of a criminal case or thata defendant seeking the subpoena must show ex-traordinary circumstances before enforcementagainst newsmen will be had. Cf. Branzburg v. Hayes... ; see Zurcher v. Stanford Daily.... 18

The Times next took its appeal to Justice Mar-shall, but he also refused to intervene. The Justiceexpressed support on the merits for the positionstaken by the appellants, but said they had not metthe criteria for the granting of a stay since they hadnot demonstrated "a balance of hardships in theirfavor," nor had they shown that "the issue was sosubstantial that four Justices ... would likely voteto grant a writ of certiorari.'1

8 4

Justice Marshall did, however, express seriousreservations about the way in which the case hadbeen handled in the New Jersey courts. He notedthat the appellants had been found guilty of con-tempt and sentenced without any hearing on thesubstantive issues raised by Farber and the Times.Then, citing United States v. Nixon, s5 Carey v.

Hume, s's Baker v. F & F Investment, 8 7 and DemocraticNational Committee v. McCord,t88 the Justice indicatedthat he felt some threshold showing of materiality,relevance, and necessity ought to have been madeby the trial judge before he issued a certificate orbefore he ordered in camera inspection. The single

181 See id.'82 436 U.S. 547 (1978).'s3 New York Times Co. v. Jascalevich, -U.S.-,

99 S. Ct. 6, 10 (1978) (White, J., denial of stay).184 New York Times Co. v. Jascalevich, -U.S.-, -,

99 S. Ct. 11, 15 (1978) (Marshall, J., denial of stay).i 418 U.S. 683 (1974).188492 F.2d 631 (D.C. Cir.), cert. dismissed, 417 U.S. 938

(1974). See note 97 & accompanying text supra.18 470 F.2d 778 (2d Cir. 1972), cert. denied, 411 U.S.

966 (1973); see note 105 & accompanying text supra.188 356 F. Supp. 1394 (D.D.C. 1973); see note 105 supra.

defense affidavit, asserting only a general need forthe materials subpoenaed, did not provide an ad-equate factual basis upon which the trial courtcould have determined materiality, necessity, orrelevance.'

8 9

Following the refusal of the Supreme Court jus-tices, Myon Farber returned to jail on August 4.

On August 18, Farber turned over the incom-plete and unedited manuscript of his book on theJascalevich case to the trial court. The Times alsosurrendered all of the newspaper's files on the case.Farber indicated in a letter to ,the judge that hewas making the manuscript available merely todisprove charges that he was profiteering from themurder trial and its release was not intended as awaiver of his right to protect his files. t9° The news-paper's records only dealt with contractual ar-rangements which had been made public throughother sources.1

91

On August 30, the New Jersey Supreme Courtagreed to hear the reporter's case without priorreview by the appellate division.' 92 Farber wasfreed after twenty-seven days in jail and the fineswere stayed temporarily. Oral argument was heardSeptember 5, and on September 21, the courtannounced its decision. By a vote of five-to-two,the contempt convictions of the newspaper and thereporter were upheld.' 93 The opinions in that caseare examined and analyzed in the next sections ofthis comment.

Farber was to return to jail the next day, butJustice Stewart granted a temporary stay pendinga decision by the U.S. Supreme Court on a motionfor certiorari. 94 Meanwhile, the Jascalevich trialwas nearing a conclusion and defense counsel askedthe Supreme Court to end the stay because thetime for forcing compliance with the subpoena wasrunning out. Without reaching any decision onwhether it would hear the case, the Court vacatedthe stay. 95

Farber went to jail for the third time on October12. Eleven days later, the Jascalevich murder trial

189 - U.S. at -, 99 S. Ct. at 14-15.90 4 MED. L. REP. (BNA) 1 5 (Aug. 29, 1978) (News

Notes section, back cover, Farber Turns Over Manuscript,Times Yields Files). See also Reply Brief for Appellants atAppendix, In re Farber, No. A-4741-77 (N.J. Sup. Ct.1978).

191 Id.'9 78 N.J. at -, 394 A.2d at 332. See also note 149

supra.19' In re Farber, 78 N.J. 259, 394 A.2d 330, cert. denied,

-U.S.-, 99 S. Ct. 598 (1978)."" See New York Times Co. v. New Jersey, -U.S.-,

99 S. Ct. 241 (1978) (memorandum opinion).9

aId.

COMMENT [Vol. 70

THE FALLACY OF FARBER

ended and the case went to the jury. The next day,the Bergen County Superior Court ordered thereporter released on the civil contempt penaltybecause his notes were no longer needed. The judgealso suspended the six-month criminal contemptsentence.19

An hour after Farber's release, the jury reachedits verdict: Dr. Jascalevich was found not guilty onall charges. Medical experts called to testify at trialhad disagreed on the critical question of whethercurare could be detected in a body ten years afterdeath. The jurors had heard thirty-four weeks oftestimony, but had deliberated less than threehours.'

97

On November 28, the United States SupremeCourt added the final note in the case, declining,without comment, to review the New Jersey Su-preme Court's decision in In re Farber, 19 thus leav-ing the contempt convictions intact.' 99 The NewYork Times had paid $285,000 in fines.2 MyronFarber had spent forty days in jail, the secondlongest incarceration for a reporter claiming theprotection of a newsman's privilege, but had neversurrendered his confidential files.

V. WHAT THE NEW JERSEY SUPREME COURT

DECIDED

The New Jersey Supreme Court heard oral ar-gument in the Farber case on September 5, 1978.Just sixteen days later, the seven-member courtannounced its decision, in four separate opinions. 2

01

Writing for a five-to-two majority, Justice Moun-tain announced that both the criminal and civilcontempt judgments against Farber and the Timeswere to be upheld. The Court held that neither thefirst amendment nor the state's news media shieldlaw would sanction Farber's refusal to turn overhis files when a defendant's constitutional rights ina murder trial were at stake. 20

A. THE OPINION OF THE COURT

1. The First Amendment

The majority opinion initially addressed theclaim of first amendment protection. The opinion

"a Washington Post, Oct. 25, 1978, § A, at 1, col 2;Washington Star, Oct. 24, 1978, § A, at 1, col 2.

197 See note 149 supra.

" New York Times Co. v. New Jersey, -U.S.-, 99S. Ct. 598 (1978) (certiorari denied).

"'See N.Y. Times, Nov. 28, 1978, § A, at 1, col. 5.200ld

2" In re Farber, 78 NJ. 259, 394 A.2d 330, cert. denied,-U.S.-, 99 S. Ct. 598 (1978).

_ Id. at -, -, 394 A.2d at 334, 337.

outlined the journalist's argument that the gath-ering and dissemination of news would be "seri-ously impaired" without a press privilege to keepinformation and sources confidential, because in-formants would be less willing to confide in report-ers. This would result in a "substantial lessening"of the flow of news on issues of public concern andthe ensuing injury to the public interest wouldviolate the first amendment's guarantee of a freepress.2w The court rejected this argument. Refer-ring to Branzburg, the opinion indicated that "[inour view the Supreme Court of the United Stateshas clearly rejected this claim and has squarelyheld that no such First Amendment right exists."' 4

Furthermore, the court emphasized that the Branz-burg decision had since been "underscored andapplied directly to this case by Justice White in abrief opinion filed.., upon ... his denial of a staysought by these appellants."

' M

Having rejected the first amendment claim, themajority opinion suggested the press was not with-out first amendment protections, including theright "to refrain from revealing its sources exceptupon legitimate demand. Demand is not legitimatewhen the desired information is patently irrelevantto the needs of the inquirer or his needs are notmanifestly compelling."

206

Farber and the Times had urged the court toconsider Justice Powell's concurring opinion inBranzburg as supporting a balancing test underwhich the validity of subpoenas would be deter-mined on a case-by-case basis. The New Jerseycourt rejected that approach:

The particular path that any Justice may havefollowed becomes unimportant when once it is seenthat a majority have reached the same destination.

... [W]e do no weighing or balancing of societalinterests in reaching our determination that theFirst Amendment does not afford appellants theprivilege they claim. The weighing and balancinghas been done by a higher court. 07

Finally, the majority concluded, Branzburg mustbe binding here because "the obligation to appearat a criminal trial on behalf of a defendant who isenforcing his Sixth Amendment rights is at least ascompelling as the duty to appear before a grandjury.

' 's°2

' Id. at -, 394 A.2d at 333.2Nid.

2 Id. at -, 394 A.2d at 334."W Id.W7 id.M Id.

2. The Shield Law and the Sixth Amendment

The court next addressed the claims raised under

the New Jersey shield law.2°9 The opinion notedthat no shield law had been involved in the reso-lution of the Branzburg cases, but acknowledged

that the state law invoked here was "said to be asstrongly worded as any in the country.', 210 The

court then emphasized that it was "abundantly

clear" Farber and the Times came fully within the

protection of the law and that "[vliewed on its face,

considered solely as a reflection of legislative intent

to bestow upon the press as broad a shield as

possible to protect against forced revelation of con-fidential source materials, this legislation is entirely

constitutional.,21

However, the shield law had to be examined in

light of the sixth amendment to the United States

Constitution 21 2 and article 1, paragraph 10, of the

New Jersey Constitution. 213 Dr. Jascalevich based

his demands for information on these constitutionalprovisions. "He invokes the rather elementary but

entirely sound proposition that where Constitution

and statute collide, the latter must yield.... [Wiefind this argument unassailable."

214

The majority opinion emphasized that the sixth

2' The New Jersey Newspaperman's Privilege Law,provides, in pertinent part:

Subject to Rule 37, a person engaged on, engagedin, connected with, or employed by news media forthe purpose of gathering, procuring, transmitting,compiling, editing or disseminating news for thegeneral public or on whose behalf news is so gath-ered, procured, transmitted, compiled, edited ordisseminated has a privilege to refuse to disclose, inany legal or quasi-legal proceeding or before anyinvestigative body, including, but not limited to,any court, grand jury, petit jury, administrativeagency, the Legislature or legislative committee, orelsewhere.

a. The source, author, means, agency or personfrom or through whom any information was pro-cured, obtained, supplied, furnished, gathered,transmitted, compiled, edited, disseminated, or de-livered; and

b. Any news or information obtained in thecourse of pursuing his professional activities whetheror not it is disseminated.NJ. STAT ANN. § 2A:84A-21 (West Supp. 1979-80).210 78 N.J. at -, 394 A.2d at 335.21 Id. at -, 394 A.2d at 336.212 See note 10 supra.213 N.J. CONsT. art. 1, T 10, provides, in pertinent part:

"In all criminal prosecutions the accused shall have theright ... to be informed of the nature and cause of theaccusation; to be confronted with the witnesses againsthim; [and] to have compulsory process for obtainingwitnesses in his favor...."

214 78 N.J. at -, 394 A.2d at 336.

amendment's compulsory process clause is bindingupon the states. 2 15 The opinion pointed out that

the New Jersey state constitution contained "ex-

actly the same language" on compulsory process as

the federal constitution.

We interpret it [Article 1, paragraph 101 as affordinga defendant in a criminal prosecution the right tocompel the attendance of witnesses and the produc-tion of documents and other material for which hemay have, or may believe he has, a legitimate needin preparing or undertaking his defense. It alsomeans that witnesses properly summoned will berequired to testify and that material demanded bya properly phrased subpoena duces necum will be forth-coming and available for appropriate examinationand use .... We hold that Article 1, 10 of ourConstitution prevails over this statute.2

1 6

The majority conceded that other unspecified

testimonial privileges, whether derived from com-mon law or statute, would appear to conflict with

the same constitutional provision. The court ven-

tured no further opinion on such privileges, butsaid it was confining its consideration to the media

shield law only.2

17

3. Procedural Mechanism for Disclosure

Having determined that neither the first amend-

ment nor the state shield law could shelter Farber

from the subpoena's demands, the court next ad-

dressed the problem of procedural mechanisms for

disclosure. Attorneys'for the Times had repeatedlyinsisted that their clients were entitled to a full

hearing on the issues of relevance, materiality, and

overbreadth of the subpoena before contempt pen-

alties could be imposed. The court agreed that

such a hearing was necessary, but said the appel-lant had "aborted" it by refusing to submit the

subpoenaed materials for in camera inspection. 2 8

The majority saw the in camera examination in

a completely different light than the Times. While

the newspaper contended there must be a full

showing and definitive judicial determination of

need, relevance, and the absence of less intrusive

means of obtaining the information prior to the

trial judge's inspection, the state supreme court felt

such a rule would "effectively stultify" the judicial

criminal process.2 9 The court maintained that in

2'5 The court cited Washington v. Texas, 388 U.S. 14(1967), as authority for this proposition.

216 78 N.J. at -, 394 A.2d at 337.2 7 Id.218

Nd.2'9 78 N.J. at -,394 A.2d at 338.

COMMENT JVol. 70

THE FALLACY OF FARBER

camera inspection "is no more than a proceduraltool [and] ... is not in itself an invasion of thestatutory privilege. Rather it is a preliminary stepto determine whether, and if so to what extent, thestatutory privilege must yield to the defendant'sconstitutional rights."22

'

Despite this view, however, the court still agreedthe appellants ought to be afforded a preliminarydetermination before being compelled to submittheir materials for in camera examination. Thecourt did not base this conclusion upon any firstamendment considerations, but rather upon an"obligation to give as much effect as possible,within... constitutional limitations, to the verypositively expressed legislative intent" manifestedin the shield law.Y'

To meet this threshold determination, the courtsaid a defendant seeking disclosure would have tosatisfy the trial judge "by a fair preponderance ofthe evidence, including all reasonable inferences,"that he had met the requirements of a three-parttest. The defendant must show: (I) there was areasonable probabiliiy or likelihood that the infor-mation sought was material and relevant to hisdefense; (2)" the materials could not be securedfrom any less intrusive source; and (3) the defend-ant had a legitimate need to see and use theinformation.2 This three-part test is derived fromJustice Stewart's dissent in Branzburg.m

The Farber court emphasized that its opinion wasnot to be taken as "license for fishing expeditions"in every criminal case, nor as permission for "in-discriminate rummaging" through newspaperfiles.224 However, the majority concluded it stillwas unnecessary in this case to remand for a formal"threshold determination."' 25 Instead, the court,operating under state rules that permitted it toexercise limited original jurisdiction for factfindingpurposes," examined the record before it andruled that there was sufficient evidence to meet itstest. The majority noted that the Jascalevich casehad been in progress eighteen weeks at the time thein camera inspection was challenged. The trialjudge's knowledge of the issues and facts involvedafforded a "more than adequate factual basis uponwhich to rest a conclusion" that the prerequisites

I-0 Id. at -, 394 A.2d at 337-38.22' Id. at -, 394 A.2d at 338.= Id.

223 A number of other states have adopted similar tests.See notes 75 & 135 & accompanying text supra.

T24 78 NJ. at -, 394 A.2d at 339.2 2 Id.2m NJ. Sup. CT. R. 2:10-5.

established by the court had been fully met-eventhough he had not articulated them in the specificfashion prescribed by the court.2 7 The majorityfound support for this conclusion in its review ofthe trial record and of documentation filed onbehalf of defendant Jascalevich. Considered partic-ularly significant was the trial judge's knowledgeof the "close association" Farber had allegedlyenjoyed with the prosecutor's office since before theindictment of the doctor. "This glaring fact of theirclose working relationship may well serve to distin-guish this case from the vast majority of others inwhich defendants seek disclosure from newsmen inthe face of the Shield Law."m

The other three opinions in the case focused, forthe most part, on this final procedural issue. ChiefJustice Hughes, in a brief concurrence, concededthat it would have been better for the trial court tohave made a formal threshold determination of thecompeting claims. But the trial court's failure todo so "should not be conclusive in the face of[appellants'] intransigence."

'

B. DISSENTING OPINIONS

Two dissenting opinions were filed. Justice Han-dler dissented "with misgivings" because he foundhimself in "substantial accord" with much of themajority's reasoning. He agreed with the Branzburgview that the existence of a newsman's privilegewas not to be inferred from the first amendmentand he also felt the state's shield law should not beinterpreted as providing absolute or unqualifiedprotection. In camera inspection of confidentialmaterials might be necessary to settle a "legal tugof war," but, a remand should have been orderedin this instance because of "the inadequacy of thepresent record to justify" the contempt judg-ments.z ° In his view, the certificates of materialityissued by the trial court disclosed some likelihoodthat some of the material sought was relevant, butyielded only "a bare conclusion" as to its necessity.Furthermore, they were silent as to alternativesources and "indifferent as to matters of over-breadth, oppressiveness and unreasonableness."3

1

Such findings were insufficient for contempt judg-ments because the trial court's "insistence upon therequisite showing of need should be unyielding andmeticulous."

' -2

227 78 NJ. at -, 394 A.2d at 339.22 id.m Id. at -, 394 A.2d at 341 (Hughes, CJ., concur-

rin'd at - 394 A.2d at 348 (Handler, J., dissenting).230 Id. at -,394 A.2d at 353 (Handler, J., dissenting).

212 id.

Justice Pashman's dissent was more vehement,but still focused on the procedural issue and urgeda remand so that the appellants might have ahearing on the merits of their objections.

The majority's assertion that appellants were indeedaccorded a due process hearing prior to in camerainspection is simply without foundation in the rec-ord .... I find it totally unimaginable that the ma-jority can even consider allowing a man to be sentto jail without a full and orderly hearing at whichto present his defenses.2

Justice Pashman saw no need to deal with theappellants' first amendment claims because theirclaim of privilege under the state shield law wasmeritorious.2-' The statute was amended after theSupreme Court had announced in Branzburg thatstate legislatures were free to set their own stan-dards as to testimonial privileges for the press. Thenew law was thus "New Jersey's response to theCourt's invitation." It reflected the "legislature'sjudgment that an uninhibited news media is moreimportant to the proper functioning of our societythan is the ability of either law enforcement agen-cies, the courts or criminal defendants to gainaccess to confidential news data."2 - He concludedthat the shield law granted journalists absoluteimmunity from disclosure, including in camerainspection. Courts were given no discretion to de-cide in an individual case that the societal impor-tance of a free and robust press was outweighed byother interests. The "weighing and balancing" al-ready had been done by the state legislature whichhad decided that the right to nondisclosure wasparamount in every instance.=

However, the justice conceded that no statutecould be applied so as to abridge an individual'sconstitutional rights and so he too urged a remandfor the purpose of a formal hearing. His opinioncontained detailed recommendations as to the pro-cedure that should be followed, including sugges-tions that the trial judge prepare findings of factand conclusions of law at each stage of the pro-ceedings and that all parties be permitted to appealthe judge's decisions, either as to the necessity forin camera inspection, or the release of informationafter the judge's examination.s 7 He stressed thatthroughout the entire process the trial court must"constantly keep in mind the strong presumption

2' Id. 343 (Pashman, J., dissenting).234 Id. at 345.2'Id. at 344.26 id.23

7 Id. at 347.

againstediscl6sure of protected materials. All doubtsconcerning disclosure should be resolved in favorof non-disclosure."

'

VI. ANALYSIS OF THE FARBER DEcISION

The procedures followed by the New Jersey andNew York courts, taken as a whole, resulted in asignificant deprivation of the constitutional dueprocess protections to which Farber and the NewYork Times were entitled. Important distinctionsmay be drawn between Farber and other criminalcases involving claims of newsman's privilege.

When the New York County Supreme Courtinitially ruled on the application for subpoenasduces tecum sought against the reporter and hisnewspaper, the court made it clear that it wasissuing the subpoenas with the full expectation,based upon the Uniform Act to Secure the Atten-dance of Witnesses from Without a State in Crim-inal Proceedings and the certificate of materialitysubmitted by the New Jersey trial court, that a fullhearing would be held in the New Jersey court "atwhich all issues of privilege, statutory and consti-tutional, may be raised." The New York courtdid not permit offers of proof as to the allegedinsufficiency in law and fact of the certificate2 40

since absent an abuse of discretion or evidence ofarbitrariness on the part of the issuing judge, thecourt was bound to allow the certificate "full faithand credit. '24 By the terms of the Act, the certifi-cate of the requesting state was prima facie evi-dence of the materiality and need allegedtherein.242

The New York appellate courts refused to reviewthe order because under state law, the motion toquash the subpoenas has to be made iii the court

= Id.239 Superior Court v. Farber, 94 Misc. 2d 886, 405

N.Y.S.2d 989, 991 (Sup. Ct. 1978).2'o It should be noted that the constitutionality of the

entire Uniform Act to Compel Witnesses from Withoutthe State in Criminal Proceedings was sharply attackedby two Justices on'the only occasion in which the UnitedStates Supreme Court has considered the law. See NewYork v. O'Neill, 359 U.S. 1, 12 (1959) (Douglas, J.,dissenting, in an opinion in which Black, J., concurred).The Supreme Court, in a narrow holding, ruled that theAct was not unconstitutional on its face and upheld itsapplication in the particular case, in part, because of thestringent procedural safeguards it was designed to pro-vide.

241 405 N.Y.S.2d at 991. U.S. CONsr. art. IV, § 1,provides in pertinent part: "Full Faith and Credit shallbe given in each state to the public Acts, records, andjudicial Proceedings of every other State."

"2 See N.Y. CraM. PROc. LAW § 640.10 subd.(2)(McKinney Supp. 1978), cited in 405 N.Y.S.2d at 990.

COMMENT [Vol. 70

THE FALLACY OF FARBER

to which the subpoenas are returnable 24a-even ifthat means an appearance in a court outside thestate. Since Hackensack, New Jersey, was justacross the state line, the court concluded therewould be no inordinate hardship involved in re-quiring Farber to seek his relief there.

Unfortunately, the expectations of the New Yorkjudges who ordered Farber and the Times to complywith the subpoenas were never realized. Farberand the Times were never permitted to brief or toargue the substantive challenges to the subpoenas.

To satisfy the requirements of due process, theappellants were entitled to, and should have beengranted, "a full hearing on the issues of relevance,materiality and overbreadth of the subpoenas."2"

No one on any side of this conflict ever questionedthat conclusion. Farber and the Times continuallysought such a hearing. The New York judges as-sumed they would receive it. Justice Marshall em-phasized its necessity in his August 4th ruling onthe Times' application for a stay.245 The state attor-ney general charged with prosecuting the criminalcontempt judgment on appeal also acknowledgedthe obligation in his appellate division brief and inhis oral argument before the New Jersey SupremeCourt. 6 Both dissenting New Jersey justices ar-gued that the denial of a hearing was violative offourteenth amendment due process rights.247 In-deed, the majority opinion of the New Jersey Su-preme Court recognized that the trial court had aresponsibility to conduct such a hearing, but con-cluded that the newspaper and its reporter hadwaived their right to the hearing by refusing toturn the subpoenaed files over for in camera inspec-tion.24 That judgment was in error.

The issue in dispute was not whether such ahearing was required, but when it had to be held.Five members of the New Jersey Supreme Courtdid not believe that it was necessary to conduct thehearing until after the trial judge had been giventhe opportunity to examine Farber's files privatelyin chambers. That conclusion, however, disregardsa crucial component of the due process problemsince one of the issues being contested, prior to an

2' N.Y. Civ. PRAc. LAW § 2304 (McKinney Supp.1978).

24 78 NJ. at -, 394 A.2d at 337.See -U.S. at -, 99 S. Ct. at 15.

2 Brief for Attorney General at 31, In re Farber, No.

A-4741-77, (N.J. App. Div. 1978). Statement by AttorneyGeneral John Degnan,.Washington Post, Sept. 6, 1978,§ A, at 2, col. 2.

247 78 NJ. at 7-; 394 A.2d at 342-43 (Pashman, J.,dissenting); id. at 354 (Handler, J., dissenting).

248 78 NJ. at -, 394 A.2d at 337.

in camera inspection, was the legitimacy of, andnecessity for, that very in camera inspection. Thelanguage of the New Jersey shield law, taken on itsface, left no question that Farber and the Timeswere protected from forced disclosure not only tothe defendant, but to the trial judge as well.2 9 Dueprocess required resolution of these claims prior toan order to produce and certainly prior to theimposition of penal sanctions. Even the attorneygeneral in his brief admitted that "the wording of[the shield law] would indicate that the court offirst impression should determine the applicabilityof the rule, including a lack of waiver, beforeordering production, even in camera, of all docu-ments or items subpoenaed."'

The New Jersey Supreme Court rejected theargument because requiring a hearing before incamera inspection might "stultify the judicial crim-inal process since it is not rational to ask a judgeto ponder the relevance of the unknown." 251 In sodoing, the court ignored the important role thelegislature plays, not only in enacting the laws thatdefine and prohibit criminal conduct, but- also inestablishing the rules and guidelines that governthe adjudication and punishment of crime. Thepassage of shield laws for the press, or the estab-lishment of testimonial privileges to protect otherrelationships, is a legitimate and constitutionalexercise of legislative power and represents a priorbalancing of societal interests with the resultingconclusion that the public benefits derived fromthe privileged relationship outweigh the impact ofa restraint upon the judicial process.

Furthermore, as post-Branzburg cases have clearlydemonstrated, the trial judge is not required to"ponder the relevance of the unknown" in con-ducting a predisclosure hearing. People v.Marahan, 1 2 State v. St. Peter,253 and Brown v. Common-wealth ' in the criminal area, and Baker v. F & FInvestmentm Carey v. Hume,2 and Democratic NationalCommittee v. McCord2 5 7 in the civil area, all have

249 See note 209 supra.2 ' Brief for Attorney General at 31.251 78 N.J. at -, 394 A.2d at 338.252 81 Misc. 2d 637, 368 N.Y.S.2d 685 (Sup. Ct. 1975);

see note 147 & accompanying text supra.2 132 Vt. 266, 315 A.2d 254 (1974); see note 135 &

accompanying text supra.2,4 214 Va. 755, 204 S.E.2d 429, cert. denied, 419 U.S.

966 (1974); see notes 133, 135 & 138 & accompanyingtext supra.

255 470 F.2d 778 (2d Cir. 1972), cert. denied, 411 U.S.966 (1973); see note 105 & accompanying text supra.

2'6 492 F.2d 631 (D.C. Cir.), cert. dismissed, 417 U.S. 938(1974); see note 97 & accompanying text supra.

57 356 F. Supp. 1394 (D.D.C. 1973); see note 105 supra.

1979]

held that the initial responsibility for showing thatdisclosure of a newsman's sources or confidentialinformation is necessary lies with the party seekingthe disclosure-in this instance, with defendantJascalevich. It was he who should have been re-quired to narrow the focus and indicate to thecourt some logical and reasonably specific groundsfor believing that the reporter had informationthat was material, relevant, unavailable from al-ternative sources, and compelling. The vague, es-sentially conclusory affidavits submitted by Jascal-evich's attorney did not meet these standards.

At a hearing a newsman also would be able tosubmit evidence, thus providing the judge withadditional information upon which to base hisdecision. Then, if the party seeking disclosure hasnot met his burden, the trial court would be justi-fied in assuming that the request for revelation wasnothing more than a "fishing expedition" and wasnot sufficient to warrant an abridgement of rightsunder the first amendment or legislatively enactedshield protection. This is a far cry from "ponderingthe relevance of the unknown." Indeed, it is thebalancing test given birth to in Justice Powell'sBranzburg concurrence and nurtured by a dozencourts since then.ms

The New Jersey Supreme Court did recognizethe necessity for this sort of threshold determina-tion, but held that the test would apply to "thosewho in the future may be similarly situated",259-

but not Farber and the Times. Instead of remandingthe case and ordering a full determination of theconstitutional and statutory issues involved, asboth the Times and the state attorney general hadrecommended," the court invoked its original ju-risdiction for the limited purpose of making find-ings of fact necessary to the disposition of the case.By so doing, the justices deprived the Times ofnotice, of any opportunity for response throughbriefing, and of any chance to present evidence orwitnesses or to cross-examine defense witnesses-

• See, e.g., United States v. Pretzinger, 542 F.2d 517,520 (9th Cir. 1976); Carey v. Hume, 492 F.2d 631, 636(D.C. Cir.), cert. dismissed, 417 U.S. 938 (1974); UnitedStates v. Liddy, 478 F.2d 586, 587 (D.C. Cir. 1972);United States v. Orsini, 424 F. Supp. 229, 232 (E.D.N.Y.1976), af/'d without opinion, 559 F.2d 1206 (2d Cir.), cert.

denied, 434 U.S. 997 (1977); State v. Sandstrom, 224 Kan.573, 581 P.2d 812, 815 (1978), cert. denied, -U.S.-, 99 S.Ct. 1265 (1979); State v. St. Peter, 132 Vt. 266, 269-70,315 A.2d 254, 255 (1974); Zelenka v. State, 83 Wis. 2d601, 618-19, 266 N.W.2d 279, 287 (1978).

259 78 N.J. at -, 394 A.2d at 338.'2r Remand brief for Attorney General at 12. Reply

brief for Appellants at 13.

all possible abridgements of due process. The ma-jority's "fact-finding" was nothing more than adependence upon the conclusions of the trial judgebased "solely" on his "examination of a handful ofnewspaper articles" 26' and "conclusory allegations""taken substantially verbatim" from the brief fordefendant Jascalevich.2 "'2 As Justice Pashman con-cluded in dissent: "This amalgam of post hoc, exparte and newspaper article 'factfinding' is not myidea of what a Shield Law hearing is all about. '2 '

Another due process concern not even addressedby the New Jersey court was the manner in whichFarber was served with notice of the criminalcontempt charge. Interpretation of the UniformAct to Secure the Attendance of Witnesses fromWithout a State in Criminal Proceedings is beyondthe scope of this comment. But in light of the dueprocess problems in this case, it bears noting thatFarber was originally served with notice of thecriminal contempt charge in New York. At a laterhearing in the New Jersey Superior Court, Farber'sattorneys argued that the court lacked jurisdictionover him because the order to show cause had beenserved outside New Jersey. The court then orderedJascalevich's counsel to seek an order in aid of alitigant and to pursue this remedy in New Yorkunder the Uniform Witness Attendance Act. Underboth the language of that statute,2" and the court'scertificate of materiality in aid of a litigant, Farberwas promised immunity from service of criminalprocess while he was in New Jersey. Acting uponthose assurances, a New York Supreme Court jus-tice on July 18 ordered Farber to respond to thecivil contempt proceeding that had been initiatedin Jascalevich's behalf. And yet, while Farber wasin the New Jersey courtroom later that same day,the trial court allowed service upon Farber in thecriminal contempt matter, even though he pro-tested that he was in New Jersey only under com-pulsion and should be immune from service. Theattorney general argued that the civil and criminalproceedings were so intertwined that Farber's pres-

262 78 N.J. at -, 394 A.2d at 347 (Pashman, J., dis-

senting).262/d.

2r1 N.J. STAT. ANN. § 2A:81-21 (West 1976) provides in

pertinent part:If a person comes into this state in obedience to

a summons directing him to attend and testify inthis state he shall not, while in this state pursuantto such summons, be subject to arrest or the serviceof process, civil or criminal, in connection withmatters which arose before his entrance into thisstate under the summons.

COMMENT JVol. 70

TIlE FALLACY OF FARBER

ence in the state for one action was sufficient tovalidate service for the other, but the whole chainof events raises serious questions as to the motiva-tion for seeking a second contempt citation. Indeed,it would seem a clear violation of due process if theUniform Witness Attendance Act and a judge'scertificate were actually used to accomplish theequivalent of extradition in order to effect serviceof a criminal citation.

Finally, it should be noted that the New Yorkcourt originally issued the subpoena duces tecumonly after emphasizing that "New Jersey courts arebound to allow full faith and credit to the laws ofNew York when necessary to protect the statutoryentitlement of New York citizens." 20 Section 79-hof the New York shield law specifically providesthat, "no professional journalist ... shall be ad-judged in contempt by any court ... for refusing orfailing to disclose any news or the source of anysuch news.... ,268 People v. Marahan67 and People v.Monroe26 held that before a newsman can be de-prived of the protection of section 79-h, he must begranted a hearing on the issues, including relevancyand materiality.269 Myron Farber received no suchhearing and, despite the unequivocal language ofthe New York law, he spent forty days in jail forcontempt of court.

It is the contention of this comment that therewere several procedural errors in the Farber liti-gation at the trial level that warranted a reversalof the newsman's contempt convictions by the NewJersey Supreme Court. Furthermore, this commentargues that the state supreme court decision didnot accurately reflect the development of judicialthinking since Branzburg.

The most critical flaw of In re Farber lies in itsinterpretation of Branzburg. Responding to the ap-pellants' argument for a newsman's privilegegrounded in the first amendment, the court de-clared: "[11n our view the Supreme Court of theUnited States has clearly rejected this claim andhas squarely held that no such First Amendmentright exists." 270 The court also refused to acknowl-edge the significance of Justice Powell's concur-rence in Branzburg. "We do not read Justice Powell'sopinion as in any way disagreeing with what is

2405 N.Y.S.2d at 991.• N.Y. Civ. RGmHTs LAw § 79-h (McKinney Supp.

1978).26' 81 Misc. 2d 637, 368 N.Y.S.2d 685 (Sup. Ct. 1975).268 82 Misc. 2d 850,370 N.Y.S.2d 1007 (Sup. Ct. 1975).m 81 Misc. 2d at 643-44, 650-51, 368 N.Y.S.2d at 692,

698. 82 Misc. 2d at 856-57, 370 N.Y.S.2d at 1013-14.2'0 78 N.J. at -, 394 A.2d at 333.

said by Justice White." 271 These denials were cru-cial, for they enabled the Farber majority to ignoreJustice White's declaration that news-gathering isentitled to first amendment protection 272 and Jus-tice Powell's concluding recommendation of case-by-case balancing.2 73 Having deprived the mediaof its first amendment defense, the New Jerseycourt was no longer confronted with a clash ofcompeting constitutional values. It was able todecide the dilemma as a simple matter of statute-versus-Constitution, with the NewJersey shield lawpredictably giving way to the assertion of a para-mount sixth amendment interest.

Furthermore, the court failed to distinguish ad-equately between the different circumstances un-der which Branzburg and Farber arose. Branzburginvolved grand jury appearances by reporters whohad either witnessed actual criminal activity orwho were believed to have direct, personal knowl-edge of crimes. Because of their investigatory func-tion, grand juries are less restricted in seekingevidence and in the procedures they must follow.Farber, on the other hand, arose in the context of acriminal trial. in which the reporter was a thirdparty who had not personally witnessed the com-mission of any crime.

The court ignored the limited nature of theBranzburg holding emphasized by both JusticeWhite and Justice Powell, and disregarded JusticeWhite's suggestion in Branzburg that state legisla-tures dissatisfied with the Court's ruling were freeto enact or amend existing shield laws to providegreater protection for newsmen274-an invitationthe New Jersey State Assembly had obviously ac-cepted. 5

Since Branzburg there has been an evolution insupport of recognition of a newsman's privilege.2 7 6

In the area of criminal trials, most, though not all,courts today accept the existence of such a privi-lege, and trace its source to the first amendmentand its recognition to Branzburg.27 This is true evenin instances where the charge has been murder.The Virginia, Wisconsin, and Kansas state su-preme courts all have been faced with appeals frommurder trials in which the defendant had soughtto learn the identity of a reporter's news source,

271 Id. at -, 394 A.2d at 334.272408 U.S. at 681.2" Id. at 710.

274 Id. at 706.275 See note 235 & accompanying text supra.2 76 See notes 97, 100, 105, 112, 121, 128, & 131 &

accompanying text supra.2See note 129 supra.

19791

but the reporters refused to testify.2 78 In each ofthose cases, the courts cited Branzburg as providingthe foundation for newsman's privilege. In two ofthe three appeals, the state court affirmed theconvictions and upheld the reporter's right to pro-tect his sources. 279 All three state supreme courtsapplied a balancing test to the defendant's demandfor disclosure and all three utilized the "material-ity/relevancy" standard in weighing the competingvalues. In the one case in which the reporter wasordered to testify, the appellate court affirmed thetrial court finding that the defendant's need for theinformation "outweighed" the claim of privilege.2

80

The approach followed in these cases is far differentfrom the indiscriminate, all-encompassing orderissued without a hearing to determine materialityor relevance in the Jascalevich trial which wasupheld by the New Jersey Supreme Court.

None of these three states had a newsman'sprivilege statute. Their recognition of a protectionfor the press was based on the first amendmentand, in the Wisconsin case, the corollary freedomof the press section of the state constitution." It isironic that in a state where the legislature hadtaken a bold statutory step specifically designed tofurther safeguard this right, the state's highest courtwould find the shield law to be an unconstitutionalabrogation of the sixth amendment. Such an inter-pretation was unnecessary, for the New Jerseyshield law as written did not have to be construedas a violation of a defendant's rights.

Myron Farber was not called to testify beforethe grand jury that indicted Mario Jascalevich, norwere any of his notes or files examined by thegrand jury. Farber also was never called as awitness by the state during Jascalevich's criminaltrial and none of his files were entered in evidenceby the prosecution. 2 The copy of the missingJascalevich deposition the reporter had uncoveredduring his investigation-the only thing he everturned over to the prosecutor2a-was available toboth state and defense counsel before and during

278 State v. Sandstrom, 224 Kan. 573, 581 P.2d 812(1978), cert. denied, -U.S.-, 99 S. Ct. 1265 (1979); Brownv. Commonwealth, 214 Va. 755, 204 S.E.2d 429, cert.denied, 419 U.S. 966 (1974); Zelenka v. State, 83 Wis. 2d601, 266 N.W.2d 279 (1978).

279 214 Va. at 758, 204 S.E.2d at 431; 83 Wis. 2d at619-21, 266 N.W.2d at 287-88.

2581 P.2d at 816.281 WIs. CONST. art. I, § 3.2'2 Author's interview with Sybil Moses, assistant

prosecutor, Bergen County, New Jersey.2'.3 Appellants' Petition for Writ of Certiorari at 4, New

York Times Co. v. New Jersey, -U.S.-, 99 S. Ct. 598(1978) (denial of certiorari). See also trial testimony of

trial, and could have been secured under discoveryrules. In this respect, the statutory privilege Farberinvoked did not violate the defendant's right "tobe confronted with the witnesses against him." Asfar as the right "to have compulsory process forobtaining [wlitnesses in his favor," the fact remainsthat Farber had never been present during any ofthe events of 1965 and 1966 that led to Dr. Jascal-evich's indictment, and there was absolutely noindication that anyone Farber had interviewedwho might be qualified to testify in the doctor'sbehalf was not otherwise available to the defensethrough application of the sixth amendment. 284

Serious questions about hearsay evidence and theadmissibility of his interview notes also would havebeen raised had the reporter been compelled toappear on behalf of the defendant. To requireFarber's testimony under such circumstanceswould be to make the reporter an arm of thedefense and certainly would constitute an infringe-ment of first amendment rights.

Although In re Farber was decided incorrectly bythe New Jersey Supreme Court, there will be noreview or reversal of that decision for the UnitedStates Supreme Court declined to grant certiorariin the case.285 Farber thus remains the law in NewJersey. Of greater concern now is the impact Farberwill have on journalists, judges, and criminal at-torneys nationwide. Because the case involved thenation's best-known and most-respected newspa-per, it attracted enormous publicity. The defeat ofthe New York Times in this case could have a muchgreater effect than the many successful newsman'sprivilege cases brought by other less well-knownnewspapers in recent years. It could result in moredemands upon reporters to testify or turn over theirnotes. Smaller, less wealthy newspapers, aware ofthe $500,000r the Times spent in fines and legalfees and of the forty days Farber spent in jail,may be reluctant to even challenge subpoenas. Italso may motivate more decisions like that madeby the editors of the Sacramento Bee, who announcedthey would no longer print information from con-fidential sources because they feared the possibilityof their reporters being jailed.28 7 Such an anounce-ment brings to mind the words ofJustice Douglas,who wrote in Branzburg that the specter of forced in

former Bergen County, NewJersey, Prosecuting AttorneyJoseph Woodcock, Washington Post, Sept. 17, 1978, § B,at 1, col. 1.

• See note 10 supra.New York Times Co. v. New Jersey, -U.S.-, 99

S. Ct. 598 (1978) (denial of certiorari).2 See note 149 supra.287 Sacramento Bee, Sept. 29, 1978, § B, at 4, col. 5.

COMMENT [Vol. 70

THE FALLACY OF FARBER

camera disclosure would "cause editors and criticsto write with more restrained pens."' ' 8

At the same time, Farber may motivate morestate legislatures to consider the adoption, oramendment, of more protective shield laws. At theappellate level, Farber may prove to be merely anaberration in what appeared to be, prior to theNew Jersey decision, a developing judicial trendtoward recognition of a qualified newsman's priv-ilege. Other jurisdictions may simply choose toignore Farber. It could, however, spark a shift in thedelicate balance between the constitutional rightsof free press and fair trial, and there is some initialsign that this is occurring. Both the New JerseySupreme Court opinion and the language ofJusticeWhite's refusal to grant a stay in the case wererecently cited in a reported lower court decisiondenying a newsman's privilege to a reporter inVermont.? And, according to the national Re-porters Committee for Freedom of the Press, Farberwas cited approvingly in an unreported federalbench decision.29

As has been noted, trial courts have tended toconstrue state shield laws strictly rather than gen-erously, even in states where legislators have at-tempted to fashion broad or "absolute" privilegestatutes. One possible response to Farber might befor legislators to formulate procedures for auto-matic or expedited appeal of mid-trial orders byjudges involving disclosure of a reporter's confiden-tial sources or information. Such a system mightnot have affected the result in Farber, but it couldhave kept the reporter out ofjail or at least reducedthe length of his incarceration.

A more comprehensive response to the entirenewsman's privilege problem might be derived byapplying a formula similar to the "exclusionaryrule" doctrine of Weeks v. United States29 1 and Mappv. Ohio2 2 to the disclosure criteria enunciated byJustice Stewart in his Branzburg dissent and sinceadooted in part by several other courts.m

Under the terms of the exclusionary rule, theSupreme Court, and the many state courts thatadopted it prior to Mapp,2 held that the fourth

mBranzburg v. Hayes, 408 U.S. 665, 721 (1972)(Douglas, J., dissenting).

' In re Powers, 4 MED. L. REP. (BNA) 1600 (Vt. Dist.Ct. 1978).

s' United States v. Digilio, No. 74-313 (D.N.J. 1978)(magistrate's opinion).

29'232 U.S. 383 (1914).2" 367 U.S. 643 (1961).*'9 See notes 75 & 135 & accompanying text supra."" 367 U.S. at 651; see, e.g., Elkins v. United States,

364 U.S. 206, 224-32 app. (1960); People v. Cahan, 44Cal. 2d 434, 282 P.2d 905 (1955); City of Chicago v.

amendment's right of privacy from arbitrary intru-sion is so essential to a free society and so worthyof protection that the courts would exclude fromtrial evidence that had been illegally obtained bythe police from a defendant in derogation of hisconstitutional protection from unreasonable searchand seizure. In reality, this often results in thedismissal of charges or the reversal of convictions,because the preservation of constitutional rights isdeemed to be more important to our society thanthe conviction and punishment of a single criminal.

It certainly can be argued that the freedomsguaranteed by the first amendment are just asessential to a free society as those of the fourthamendment. And so, when the first and sixthamendments collide, the solution might well lie inanother type of exclusionary rule. Thus, if a de-fendant were able to demonstrate with sufficientprecision that a reporter's notes or sources wereabsolutely essential to his defense, and he couldmeet the relevancy, materiality, exhaustion of al-ternative sources, and compelling need testsadopted in such cases as State v. St. Peter,s Brownv. Commonwealth,2 Zelenka v. State,2 7 and Florida v.Hurston,ns the court would be required to dismissthe charge, or upon appeal, reverse the conviction.The rationale for such an approach would be thatthe preservation of the constitutional rights of theaccused person, the press, and the public are moreimportant to our society than the conviction of asingle defendant. The factual situations and deci-sions in criminal cases involving claims of news-man's privilege since Branzburg suggest that such aconstitutional confrontation would not arise oftenand, given the burden of proof the defendantwould have to meet, it is doubtful that many guiltymen or women would go free. It might well be asmall price to pay to insure the preservation of afree press.

VII. CONCLUSION

Judicial acceptance of the newsman's privilegehas been grudging and gradual over the past 130years, but an examination of the cases decidedsince Branzburg v. Hayes in 1972 suggests that rec-

Lord, 7 11. 2d 379, 130 N.E.2d 504 (1955); People v.Castree, 311111. 392, 143 N.E. 112 (1924).

2" 132 Vt. 266, 315 A.2d 254 (1974); see note 138 &accompanying text supra.

26 214 Va. 755, 204 S.E.2d 429, cert. denied, 419 U.S.966 (1974); see notes 133, 135 & 138 & accompanyingtext supra.

2783 Wis. 2d 601, 266 N.W.2d 279 (1978); see textaccompanying note 282 supra.

'a 3 MED. L. REP. (BNA) 2295 (Fla. Cir. Ct. 1978).

1971]

ognition of a qualified or conditional privilege,grounded in the first amendment, has beenachieved in a majority of the jurisdictions wherethe issue has been considered. The fact that theprivilege is now acknowledged however, does notmean that its exercise is always permitted.

A reporter's right to refuse to disclose the identityof his sources or confidential information has beenaccepted most often in civil litigation, especiallywhen the newsman is not a party to the case. Italso has been recognized in criminal cases, includ-ing murder trials, when the defendant is unable todemonstrate that the journalist's knowledge is ma-terial and relevant to the central issue of guilt orinnocence. Other tests, including exhaustion ofalternative sources and "compelling need," havebeen employed by some judges in attempting todetermine whether disclosure should be ordered incriminal cases.

Following Branzburg, courts still require newsmento appear and testify before grand juries, especiallywhen they have witnessed a crime. But even in thisarea, some judges have suggested first amendmentlimitations on the questions a grand jury can poshto a reporter.

Since 1972, seventeen states have enacted oramended news media shield laws, bringing totwenty-six the number of states with privilege stat-utes for journalists. Despite this flurry of legislativeactivity Congress has never taken any final actionon any of the proposals for a federal shield law,and state courts sometimes interpret the local lawsquite strictly, thus depriving reporters of their pro-tection.

The most noted newsman's privilege case inrecent years has been In re Farber, the judicial battlethat resulted in the jailing of a reporter for fortydays. It is the contention of this comment that theFarber case was poorly decided at both the trial andappellate levels. The trial judge's refusal to conducta hearing on the substantive issues before orderingin camera inspection of the reporter's confidential

files or before contempt of court judgments wereentered was improper. The New Jersey SupremeCourt did not correct this serious error. That courttailed to recognize the growing legal acceptance ofa constitutional basis for the newsman's privilege.The state court also struck down one of the nation'smost comprehensive shield laws when SupremeCourt precedents did not suggest that such a rulingwas necessary.

There have been at least forty contempt judg-ments handed down against reporters in the yearssince Branzburg, resulting in at least a dozen actualjailings lasting from a few hours to several weeks.29The trend in the last few years has appeared to bemore favorable toward journalists' claims of privi-lege, but the Farber decision now raises seriousquestions about whether the pendulum is onceagain swinging away from protection for the press.

Almost forty years ago, in Bridges v. Califomia,"Mr. Justice Black wrote that "free speech and fairtrials are two of the most cherished policies of ourcivilization, and it would be a trying task to choosebetween them."3' That statement acknowledgesthe possibility of conflict between the two freedoms,but more importantly, it recognizes the constitu-tional foundations of both-a realization that hasbeen too often lacking in cases involving newsman'sprivilege. Accommodation based on balancing isthe key to preserving these rights and that can bestbe achieved through a case-by-case approach, asJustices Powell and Stewart suggested in theirBranzburg opinions. This comment supports thatapproach, but it also has attempted to advancesome alternative policies and procedures thatmight further safeguard the newsman's privilegeand the public's right to a vigorous and informativefree press.

Stephen R. H-ofer

299 N.Y. Times, July 25, 1978, § B, at 7, col. I.a" 314 U.S. 252 (1941).3' Id at 260.

COMMENT JVol. 70