Separate look at each charge needed to overcome privilege

Kristen Rasmussen | Reporter's Privilege | Feature | May 9, 2011

A West Virginia trial judge erred when she ordered a newspaper to reveal the identities of anonymous sources and documents in a defamation suit against the paper, the state’s highest court recently ruled.

The Supreme Court of Appeals of West Virginia returned the case to the lower court, which must identify and analyze each allegedly defamatory statement and the confidential source who made the statement separately.

Cabell Circuit Judge F. Jane Hustead failed to undertake this specific analysis when she ordered The Lincoln Journal to reveal anonymous sources referred to in a series of articles alleging that the owner of a rival newspaper and other individuals illegally contributed money to local candidates in the 2008 primary elections, the Supreme Court of Appeals held last week in Lincoln Journal v. Hon. Jane F. Hustead, Judge.

But this time around, the paper could have the benefit of the state's new shield law, which goes into effect June 10. Acting Gov. Earl Ray Tomblin signed the legislation in April, making West Virginia the 40th state, along with the District of Columbia, to provide statutory protection for subpoenaed reporters.

The measure provides journalists with a nearly absolute reporter’s privilege to refuse to disclose the identity of confidential sources, and documents and other information that could identify confidential sources, in civil, criminal, administrative and grand jury proceedings. A court may compel disclosure of such information only if “necessary to prevent imminent death, serious bodily injury or unjust incarceration.”

“This is a prospective-looking law, and going forward, after the 10th of June, a court cannot compel testimony,” said David A. Barnette, The Lincoln Journal’s lawyer and general counsel for the West Virginia Broadcasters Association, a driving force behind passage of the state shield law.

The allegedly defamatory newspaper articles cited several anonymous sources and Lincoln County Prosecuting Attorney William J. “Jackie” Stevens II. It also referred to copies of two criminal complaints that had reportedly been submitted to Stevens and the paper with the name of the law enforcement officer who prepared them blacked out. Lawyers for the now-defunct Lincoln Standard sued the Journal for libel in 2008.

Originally, the plaintiffs filed Freedom of Information Act requests and served subpoenas on the Lincoln County prosecutor’s office, the West Virginia secretary of state and the U.S. Attorney’s Office for information about who prepared the complaints. All three offices refused to disclose information and the plaintiffs then argued that the Journal should reveal the information. Last September, Hustead ordered the paper to reveal the anonymous sources referred to in the articles and to turn over related documents.

Although West Virginia did not have a shield law until recently, the 1989 state Supreme Court ruling in Hudok v. Henry protected journalists from having to testify and provide the names of sources or other information gathered while reporting unless the subpoenaing party could make a clear and specific showing that the information is highly material and relevant, necessary or critical to the maintenance of the claim and not obtainable from other available sources.

The trial court must apply this standard to each specific statement the speaker of which the subpoenaing party is trying to identify, the Supreme Court ruled in the Journal case.

“An analysis of the circuit court’s order reveals that, in a summary fashion, the court merely references a ‘number of articles’ that contain allegations of criminal conduct and/or other wrongful activities related to the 2008 Lincoln County Primary Election, and orders the [paper] to ‘fully and completely respond to [respondents’] . . . discovery requests, including providing information as to the identity and sources of persons and information relied upon in publishing the subject articles and defamatory statements and allegations contained therein,’” the court said.

“Based upon the fact that respondents have referenced eleven separate articles containing various disclosed and/or confidential source information and varying allegations are at issue herein, we conclude that in order for the Hudok factors to be properly applied in this case, it is first necessary for the circuit court to separately identify each alleged defamatory article with specificity, identify each source therein that the respondents seek, and thereupon conduct a separate Hudok analysis for each.”

Barnette said the high court opinion seems to anticipate the case returning to it for further review after the lower-court judge “does what she’s supposed to do.”

However, if her review occurs after June 10, the state shield law, in perhaps its first application, will likely protect the paper from the compelled disclosure and could avoid the Hudok analysis altogether, although a specific provision in the shield law allows a reviewing judge to consider those factors if he or she chooses, Barnette said. That’s because the Hudok holding ensures that journalists are privileged to withhold their newsgathering materials, a protection not provided under the shield law, which is limited to information about confidential sources only.

“The court [in applying the Hudok test] can go beyond what the Legislature can do,” Barnette said.