Amicus brief in Weinburger v. Maplewood Review
Urging the Minnesota Supreme Court to find the state shield law protects against subpoenas in libel suits.
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Case No. C7-01-2021 STATE OF MINNESOTA IN SUPREME COURT Richard Weinberger, Appellant, and Independent School District No. 622, et al., Defendants, vs. Maplewood Review, et al., Respondents. AMICI CURIAE BRIEF OF THE REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS; SOCIETY OF PROFESSIONAL JOURNALISTS; THE NEWSPAPER GUILD-CWA; AND THE MINNESOTA NEWSPAPER GUILD TYPOGRAPHICAL UNION IN SUPPORT OF RESPONDENTS
November 27, 2002 (Attorneys for each party to the appeal listed on inside cover) ATTORNEYS FOR THE PARTIES Stephen W. Cooper 800 Ceresota Building 155 Fifth Ave., South Minneapolis, MN 55401 Phone: (612)338-3533 (Attorney for Appellant Richard Weinberger) Lawrence J. Hayes, Jr. 1155 Centre Pointe Drive, Suite 10 Mendota Heights, MN 55120 Phone: (651)222-2811 (Attorney for Defendants Independent School District No. 622, et al.) Mark R. Anfinson 3109 Hennepin Ave. South Minneapolis, MN 55408 Phone: (612)827-5611 (Attorney for Respondent) TABLE OF CONTENTS STATEMENT OF THE CASE AND FACTS ARGUMENT
A. Minnesota favors broad press freedoms
B. Allowing disclosure of confidential sources presents serious threats to journalists and the public
3. Burden on time and resources
4. Intrusion into editorial process
B. Appellant's position would lead to an absurd and unreasonable interpretation of the Act
2. Appellant’s reading would lead to an unreasonable result
C. Disclosure may be compelled only to show actual malice
III. Conclusion Amici curiae 1 will address the following issue: In a libel action brought by a public figure, does the defamation exception to the Minnesota Free Flow of Information Act require a non-party reporter to disclose the identity of confidential sources consulted for a newspaper article, when the primary purpose of disclosure is not relevant to obtaining evidence of actual malice? The Court of Appeals decided it did not.
Apposite constitutional provisions, statutes and cases:
STATEMENT OF THE CASE AND FACTS In January of 1997, the Maplewood Review weekly newspaper published an article written by Wally Wakefield explaining why Richard Weinberger had been fired as football coach at Tartan High School. Weinberger v. Maplewood Review, 648 N.W.2d 249, 251 (Minn. App. June 18, 2002). The article quoted confidential sources. Id. Weinberger sued the school district and four school officials for defamation, but he did not sue Wakefield or the newspaper. Id. Weinberger subpoenaed Wakefield to obtain the identities of the sources quoted in the news story. Id. at 252. Ramsey County District Judge Dale B. Lindman ordered Wakefield to comply with the subpoena on October 9, 2000. Order of Judge Lindman, Oct. 9, 2000. Wakefield and the newspaper appealed, and the Court of Appeals remanded the case back to Judge Lindman, requiring the District Court to balance the factors set out in Bauer v. Gannett Co., Inc., 557 N.W.2d 608 (Minn. App. 1997). Weinberger, 648 N.W.2d at 253. After rehearing, Judge Lindman concluded that Wakefield had to comply with the subpoena and identify the confidential sources quoted in the news story. Id. On November 6, 2001, Judge Lindman held Wakefield in contempt of the order and imposed a fine of $200 per day if Wakefield did not comply with the order or file an appeal on or before November 23, 2001. Order of Judge Lindman, Nov. 6, 2001, p. 2. Wakefield appealed to the Court of Appeals on November 21, 2001, staying the fine. The Court of Appeals reversed Judge Lindman’s order, holding: “In a defamation action brought by a public official, Minn. Stat. § 595.025 does not require a non-party reporter to disclose which defendant, if any, is the source of one or more of the specific statements that appeared in a newspaper article if the primary purpose of disclosure is not relevant to obtaining evidence of actual malice but rather to make the reporter a witness against defendants, and there is no prima facie showing that the statements are false or were made with actual malice.” Weinberger, 648 N.W.2d at 260. Weinberger appealed to this Court.
Amici curiae respectfully request that this Court grant appellee’s request to affirm the June 18, 2002 decision of the Court of Appeals, upholding Wakefield’s claim of privilege under the Minnesota Free Flow of Information Act and relieving Wakefield of the necessity of identifying the sources of statements published in his article in the Maplewood Review on January 27, 1997.
ARGUMENT This Court has an opportunity to affirm Minnesota’s strong commitment to freedom of the press and the unfettered flow of information to the public. At stake in this case is a critical tool of journalism: the ability to promise confidentiality to sources who help to inform and educate readers on matters of public concern. The Court of Appeals, recognizing the importance of the relationship between a reporter and his source, properly struck a balance between the needs of a litigant in a defamation case to which the journalist being subpoenaed is not a party, and the interests of the media and the public in maintaining a free and unfettered press. Appellant’s position, which favors a broad interpretation of the defamation exception to the Minnesota Free Flow of Information Act, is both unreasonable and inconsistent with the law and policy goals of this state. Amici ask this Court to affirm the appeals court’s ruling and hold that where a non-party reporter is subpoenaed in a defamation case, and the information sought would not be relevant to the issue of actual malice, Minnesota’s strong shield law protects the reporter from revealing confidential source materials.
I. Appellant’s position presents serious threats to Minnesota’s goal of maintaining a free and unfettered press
A. Minnesota favors broad press freedoms The Minnesota legislature enacted the Free Flow of Information Act -- also called the Minnesota shield law -- to protect journalists from compelled disclosure of confidential sources. The Act was passed in 1973, one year after the U.S. Supreme Court held that reporters could be compelled to disclose their confidential sources to a grand jury. Branzburg v. Hayes, 408 U.S. 665, 667 (1972). In response to Branzburg, the Minnesota legislature created a powerful right of the news media to shield their sources. Section 595.022 states the public policy of the Act: In order to protect the public interest and the free flow of information, the news media should have the benefit of a substantial privilege not to reveal sources of information or to disclose unpublished information. To this end, the freedom of press requires protection of the confidential relationship between the news gatherer and the source of information. The purpose of sections 595.021 to 595.025 is to insure and perpetuate, consistent with the public interest, the confidential relationship between the news media and its sources. Minn. Stat. § 595.022 (2000) (emphasis added). As indicated by the title of the Minnesota Free Flow of Information Act, the legislature’s foremost concern was to maintain the free flow of unbiased, unregulated and uninhibited information to the public by protecting the independent role of the press. Confidential sources would be protected except for those rare occasions when, “consistent with the public interest,” constitutional rights and interests collide. Thus, in both the language and tone of the public policy embodied in § 595.022, the legislature created strong protection for the news media while at the same time conceding that sometimes a competing societal interest would rise to a level that would justify overriding the shield law. Minnesota’s goal of maintaining a free and unfettered press is consistent with the law of the majority of U.S. states and several federal circuits. 2 In this case, the Court of Appeals cited the D.C. Circuit’s decision in Zerelli v. Smith, holding that a Detroit News reporter was justified in refusing to reveal his sources for a series on organized crime, as paralleling the policy of Minnesota. In Zerelli, the court stated: In general, when striking the balance between the civil litigant’s interest in compelled disclosure and the public interest in protecting a newspaper’s confidential sources, we will be mindful of the preferred position of the First Amendment and the importance of a vigorous press ... Indeed, if the privilege does not prevail in all but the most exceptional cases, its value will be substantially diminished.
Zerelli v. Smith, 656 F.2d 705, 712 (D.C. Cir. 1981) (emphasis added). See also Bauer v. Gannett Co., Inc., 557 N.W.2d 608 (Minn. App. 1997). Appellant’s position, which advocates for compelled disclosure of confidential source information in a defamation case in which the reporter being subpoenaed is not a party, threatens to disrupt this mission of maintaining the privilege in all but “exceptional” situations. Allowing disclosure in this case would be against the law and public policy of this and many other states and would set a dangerous precedent of easing litigants’ ability to pierce the intentionally strong shield law. B. Allowing disclosure of confidential sources presents serious threats to journalists and the public
There are many reasons to enact and maintain a strong shield law to protect journalists and their sources. As the Court of Appeals recognized in its June 18, 2002 opinion in this case, “[c]ompelling disclosure of confidential sources of statements in an article about a public official, for the purpose of making the reporter a witness against sources, has significant potential to interfere with a reporter’s ability to gather news.” Weinberger, 648 N.W.2d at 258. Subpoenas requesting confidential source information affect the press in at least five significant ways: 1. Deterrent effect The most obvious effect of a subpoena for confidential sources is the likelihood that sources will be deterred from confiding in journalists for fear of being discovered. The Court of Appeals recognized, in its June 18, 2002 decision, that “[u]nless potential sources are confident that compelled disclosure is unlikely, they will be reluctant to disclose any confidential information to reporters.” Weinberger, 648 N.W.2d at 259, (quoting Zerelli, 656 F.2d at 712). Amici attest that the deterrent effect is a real and serious concern for journalists. A great deal of reporting is done with the aid of sources who, for one reason or another, provide information on matters of public interest on the condition of confidentiality. See Bauer v. Gannett Co., Inc., 557 N.W.2d at 610. The invaluable relationship between reporter and confidential source has been recognized by the U.S. Supreme Court as well as countless other courts around the nation. See Branzburg v. Hayes, 408 U.S. at 693-95; see, e.g., Zerelli, 656 F.2d at 711; Riley v. City of Chester, 612 F.2d 708, 714 (3d Cir. 1979). Both the press and the public suffer if sources are discouraged from confiding in reporters. Public awareness and discussion of matters of concern depends on the willingness of sources to provide information to the press. This is especially true with respect to issues that beg an explanation for the actions of government and other public bodies, such as school boards. In order to maintain the “free flow of information” anticipated by the Minnesota legislature, the identities of reporters’ confidential sources should be protected to the greatest degree possible. Minn. Stat. § 595.022; see Zerelli, 656 F.2d at 712. 2. Loss of neutrality When litigants have access to reporters’ source materials, the public begins to see the media as a conduit or investigative tool of government instead of a neutral entity. This undermines public confidence in the press and restricts the media’s newsgathering efforts. A national survey of news organizations shows that civil litigants see the media as an investigative tool for discovery. See Agents of Discovery, Reporters Committee for Freedom of the Press, (Lucy A. Dalglish, ed., 2001) (attached as Appendix B). Results of the survey showed that 38 percent of the 1,326 subpoenas issued to news organizations in 1999 related to civil litigation. Id. at 5. Respondents to the survey reported 512 subpoenas that were served on the media as “third parties” to the litigation. Id. A media organization was a party to the civil litigation in only 24 instances. Id. As the study concludes, “[t]his burden on newsgathering strikes at the very notion of the press as an independent, impartial watchdog that has provided an essential service in this country for centuries.” Id. at 15. The autonomy of the press, which is essential to its basic watchdog function, is clearly threatened if journalists are forced to take part in litigation to which they are not a party. Subpoenas, if complied with, “can cast the media as sympathetic to one side in the litigation, or worse, as an active participant on one side.” Id. at 2. In order to save the press from being viewed as biased, courts must dispel the notion that media materials may be discovered on a regular basis, particularly in civil litigation. 3. Burden on time and resources Subpoenas to reporters impose a heavy burden on news organizations by taking away staff time and resources. In its study of the incidence of subpoenas served on the news media in 1999, The Reporters Committee for Freedom of the Press explained this burden on the news media: “Every minute and every dollar spent responding to subpoenas, or developing policies to avoid future subpoenas, were time and money taken from the newsgathering process.” Id. at 2. This burden is especially heavy for small newspapers, such as the Maplewood Review, where juggling schedules to allow a reporter to respond to a subpoena can be particularly difficult. Most reporters, especially at smaller newspapers, cover several stories in the course of a day. If a reporter must respond to a subpoena, appear at a deposition or testify at trial, his duties must be covered by another reporter. At smaller newspapers, there may be no one to fill in for the reporter who is answering the subpoena. This burden on the news organizations’ resources, of course, has a direct effect on the public’s receipt of news. Moreover, the practical effect of allowing journalists to be subpoenaed is that reporters become the source of first resort for litigants seeking evidence to bolster their cases. Newsgatherers are subpoenaed more than other citizens and, as such, are burdened far more than any other segment of society. See id. at 14 (describing the “lazy lawyer” phenomenon: litigation attorneys using journalists as fact chasers for their cases). 4. Intrusion into editorial process The use of subpoenas can also affect the functioning of the press. The prospect of government review inhibits certain newsgathering. Rather than risk having their credibility with sources tainted and their resources diverted to answering subpoenas, news organizations may decide not to cover certain stories that depend on confidential sources. See id. at 13-14 (reporting that several news outlets around the country have created newsroom policies, in response to the threat of subpoenas, limiting the use of confidential sources). The threat of subpoenas may also discourage journalists from compiling and retaining information on stories they do follow -- an effect that ultimately could affect the accuracy and depth of coverage of important events. See id. (many news organizations have instituted policies requiring rapid destruction of unpublished materials, including reporters’ notes and raw film footage); see also United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980) (“[T]he compelled production of a reporter’s resource materials can constitute a significant intrusion into the newsgathering and editorial processes”); J.J.C. v. Fridell, 165 F.R.D. 513, 515 (D. Minn. 1995) (“Federal courts are motivated to cultivate a reporter’s privilege to prevent judicial intrusion into the editorial process, and to ensure the free flow of information to the public”). This result is not only detrimental to the public’s right to know, it also undercuts the meaning and spirit of the state’s shield law. 5. Safety and protection Finally, compelled disclosure of sources may, in some circumstances, threaten the safety or well being of both journalists and their sources. Sources who have provided information on governmental or corporate misconduct, for instance, could face retaliation from employers or others if their identities are revealed. In addition, some sources risk their lives to tell reporters about criminal activity they have taken part in or witnessed. In such instances, compelled disclosure can have grave consequences. Courts construing shield law statutes should be aware of the threat of retaliation against sources and reporters. See, e.g., Hopewell v. Midcontinent Broadcasting Corp., 538 N.W.2d 780, 782 (S.D. 1995) (noting, in the process of determining the scope of South Dakota’s reporters privilege, that “news sources may be subject to harassment or more serious danger if their identity is disclosed”). Thus, confidential sources and source material should be disclosed only in extraordinary circumstances, when it is determined that the interests of the litigant seeking disclosure clearly outweigh the threats to freedom of the press. Both the media and the public will suffer if the press is constrained in the way Appellant advocates.
A. The Act favors protection of confidential sources and carves out only narrow exceptions to reporters privilege
The Court of Appeals holding -- that Minn. Stat. § 595.025 does not require a non-party reporter to identify confidential sources if the primary purpose of disclosure is not relevant to obtaining evidence of actual malice, and there is no prima facie showing that the statements are false or were made with actual malice -- is consistent with the goals of the Act. As the legislature made clear, the Act is intended to “insure and perpetuate, consistent with the public interest, the confidential relationship between the news media and its sources.” Minn. Stat. § 595.022. The legislature recognized that there are extremely limited instances in which the public interest in obtaining the identities of a reporter’s confidential sources is so great that a reporter’s rights under the Act are outweighed. The law includes an exception, by which the news media may be compelled to reveal their sources in certain criminal cases. Minn. Stat. § 595.024 (2000). Indeed, in 1998 the legislature amended this section, clarifying that the exception would apply only when particular crimes -- not all crimes -- were involved. 1998 Minn. Sess. Law Serv. Ch. 357, § 2 (West). 3 In amending the law, the legislature delineated a narrow exception for criminal cases: a person can seek a reporter’s confidential sources only when a gross misdemeanor or felony is involved and when other conditions are met. For lesser crimes, the Act absolutely protects the confidentiality of the source. This narrow exception for criminal cases effectively bans the use of media subpoenas in non-defamation civil cases. Significantly, the 1998 amendments also clarified that the Act applied to a reporter’s unpublished information, whether or not the information would tend to identify the source. 1998 Minn. Sess. Law Serv. Ch. 357, § 1 (West). This clarification of the law was a reaction to court decisions that construed the Act to protect a reporter’s unpublished information only when the information would identify a source. See Heaslip v. Freeman, 511 N.W.2d 21, 24 (Minn. App. 1994); State v. Turner, 550 N.W.2d 622, 631 (Minn. App. 1996). The amendments made clear the legislature’s intent to provide broad protections to the news media in protecting confidential sources and unpublished information, except when the societal interest in certain types of crimes mandated disclosure. B. Appellant's position would lead to an absurd and unreasonable interpretation of the Act
1. The defamation exception is meant to address a particular situation where media is a party making a defense to actual malice
Just as it included a narrow exception in the shield law for criminal cases, the legislature included a narrow exception for defamation cases in § 595.025. The defamation exception anticipates that the media will be a defendant in a libel case. The exception allows a libel plaintiff to discover a journalist’s sources where “the person seeking disclosure can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice”; there is probable cause to believe the source has information “clearly relevant to the issue of defamation”; and the information “cannot be obtained by any alternative means or remedy less destructive of first amendment rights.” Minn. Stat. § 595.025. This exception is clearly geared towards remedying a particular conflict in reporters privilege law that courts have recognized as troubling. The conflict arises when a journalist is sued for libel, and the journalist bases his defense to actual malice on privileged confidential source material. In that situation, the journalist is attempting to defend himself on the basis of evidence he refuses to disclose. This, of course, poses problems in the adjudication of the case against the journalist, and courts have held that under those circumstances, disclosure may sometimes be compelled. In the Court of Appeals’s June 18, 2002 decision, the Court explained: When the journalist is a party, and successful assertion of the privilege will effectively shield him from liability, the equities weigh somewhat more heavily in favor of disclosure ... Proof of actual malice will frequently depend on knowing the identity of the newspaper’s informant, since a plaintiff will have to demonstrate that the informant was unreliable and that the journalist failed to take adequate steps to verify his story ... We take care to point out, however, that disclosure should by no means be automatic in libel cases.
Weinberger, 648 N.W.2d at 257 (quoting Mitchell v. Superior Court, 690 P.2d 625, 632 (Cal. 1984)). See Bauer v. Gannett, Co., Inc., 557 N.W.2d at 611 (while this factor is not dispositive, “the balance may tip more in favor of disclosure” when the reporter is a party to the litigation); see, e.g., Riley, 612 F.2d at 716 (reversing a contempt citation against a journalist but observing that the case was not “a situation in which the journalist and/or publisher are defendants in a suit brought for damages caused by publications alleged to have contained knowing or reckless falsehoods”); Lamberto v. Bown, 326 N.W.2d 305, 307 (Iowa 1982) (“[I]n civil cases where a reporter asserting the privilege is a party to the lawsuit and his actions, motivations or thought processes are integral elements of the claim, disclosure is often compelled. The most notable cases are libel cases.”). Indeed, except for the instant case, other Minnesota defamation cases that have invoked § 595.025 involved media defendants. See Bauer v. Gannett Co., Inc., 557 N.W.2d 608; Steele v. Tell, No. C2-94-981, 1994 WL 593924 (Minn. App. 1994) (unpublished opinion attached as Appendix C); McNeilus v. Corporate Report, Inc., 21 Media L. Rep. 2171 (Minn. Dist. Ct. 1993); Aerial Burials v. Minneapolis Star and Tribune, 8 Media L. Rep. 1653 (Minn. Dist. Ct. 1982). The defamation exception in Minn. Stat. § 595.025 was intended to address -- and makes sense only if it addresses -- the situation where the media is a party to a defamation suit. See Fischer v. McGowan, 585 F. Supp. 978, 987-88 (D. R.I. 1984) (finding that the defamation exception in Rhode Island’s shield law was meant to remedy the situation in which a defendant journalist claims a libelous piece was based on a reliable but privileged source, and finding no support for the conclusion that the state’s legislature meant for the privilege to apply in the context of defamation actions as a whole). This interpretation of § 595.025 is consistent with both the broad public policy expressed in § 595.022 and the narrow exception for criminal cases in § 595.024. In light of the public policy served by the statute, it makes sense for the legislature to have concluded that when a plaintiff is libeled by the media, the societal interest in allowing an injured plaintiff to hold the media accountable would outweigh the media’s interest in protecting the confidentiality of sources. 2. Appellant’s reading would lead to an unreasonable result Statutes should not be construed so that an absurd or unreasonable result is reached. Milbank Mutual Ins. Co. v. Kluver, 225 N.W.2d 230, 232 (Minn. 1974). The application of § 595.025 urged by Appellant would reach an unreasonable result. Construing the defamation exception to apply to those libel cases in which the media is not a party is nonsensical. Such an interpretation would mean that the legislature deemed the public interest in all libel cases to be so great that it justified overcoming a reporter’s shield against revealing confidential sources. Yet it makes no sense that the legislature would provide this exception in libel cases and in no other civil case. Why would the legislature choose to elevate one class of civil cases above all others? More importantly, why would the legislature, so clearly concerned with “insuring and perpetuating” the confidential relationship between reporter and source, create a wide exception to the privilege in civil cases? See, e.g., Zerelli, 656 F.2d at 711-12 (asserting that disclosure of confidential source materials is generally more likely to be compelled in criminal, rather than civil, cases); Parsons v. Watson, 778 F. Supp. 214, 218 (D. Del. 1991) (same). It is unreasonable to believe that the legislature would grant a broad shield protecting a reporter’s sources from disclosure, lift that shield in a narrow band of criminal cases in which the public interest in law enforcement outweighs the news media’s free press rights, and then allow disclosure in all defamation cases. The interpretation put forth by Appellant is inconsistent with the purposes of Minnesota’s shield law and is illogical. The only sensible interpretation of § 595.025 would apply the defamation exception only to those cases where the media is a party. C. Disclosure may be compelled only to show malice It is without dispute that a reporter’s testimony can only be compelled, under the shield law’s defamation exception, if “the person seeking disclosure can demonstrate that the identity of the [reporter’s] source will lead to relevant evidence on the issue of actual malice.” Minn. Stat. § 595.025. The Court of Appeals recognized that if the reporter in this case is forced to identify which of the defendants made the statements at issue, such disclosure will not help to prove actual malice: “[E]ven if Wakefield testifies that certain defendants were the source of certain statements, he cannot testify to a defendant’s intentions in furnishing the information ... It is clear that Weinberger seeks disclosure to make Wakefield his witness against defendants rather than to discover evidence of actual malice.” Weinberger, 648 N.W.2d at 257-58. Appellant has made no showing that mere identification of who said what in Wakefield’s article about former coach Weinberger will lead to evidence on actual malice. Without such a showing, regardless of one’s interpretation of the rest of the provision, the defamation exception in the Act is inapplicable. See McNeilus, 21 Media L. Rep. at 2174 (where disclosure will not resolve an issue of actual malice, § 595.025 is inapplicable). Appellant should not be allowed to obtain testimony from a journalist simply because he thinks it will help his case. A demonstration of malice is required to trigger the intrusion on free press values.
III. Conclusion Taking into consideration the purposes of the Minnesota Free Flow of Information Act; the threats to a free press imposed by compelled disclosure of confidential sources; the purpose and logical interpretation of the Act’s defamation exception; and the Court of Appeals’s reasoning in denying Appellant’s request for confidential materials, it is clear that compelled disclosure is not appropriate in this case. Amici respectfully request that this Court uphold the decision of the Court of Appeals and affirm Minnesota’s commitment to protecting the unfettered flow of information through newsgathering.
Dated: November 27, 2002 Respectfully Submitted,
By ____________________________________ Lucy A. Dalglish, Minn. Registration No. 257400 Counsel of Record Gregg P. Leslie Wendy W. Tannenbaum The Reporters Committee for Freedom of the Press 1815 N. Fort Myer Dr., Suite 900 Arlington, VA 22209 Phone: (703) 807-2100 Counsel for Amici Curiae
(additional counsel for amici listed on next page) ADDITIONAL COUNSEL FOR AMICI
Bruce W. Sanford, Esq. Robert D. Lystad, Esq. Bruce D. Brown, Esq. Baker & Hostetler LLP 1050 Connecticut Avenue NW Suite 1100 Washington, DC 20036 Phone: (202) 861-1500 Counsel for Society of Professional Journalists
Barbara L. Camens Barr & Camens 1025 Connecticut Avenue NW Suite 712 Washington, DC 20036 Phone: (202) 293-9222 Counsel for the Newspaper Guild-CWA
Lucy A. Dalglish 1815 N. Fort Myer Drive, Suite 900 Arlington, VA 22209 Phone: (703)807-2100 Counsel for the Minnesota Newspaper Guild and Typographical Union |