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Search the Reporter's Privilege Compendium
In an unpublished decision, the United States District Court for the District of Colorado quashed a grand jury subpoena that had been issued on an UPI reporter as part of a federal investigation to determine whether a particular Secret Service agent had "leaked" a photograph obtained from the home of John Hinckley's parents to the press. In re Grand Jury Subpoenas, 8 Media L. Rptr. (BNA) 1418, 1419 (D. Colo. 1982). Although the District Court did not mention the Silkwood ruling, it found that the information sought did not go "to the heart of any pending criminal investigation," and therefore did not overcome the reporter's First Amendment privilege.
10th Cir.
In In re Grand Jury Subpoenas, 8 Media L. Rptr. (BNA) 1418, 1419 (D. Colo. 1982), the United States District Court for the District of Colorado quashed a grand jury subpoena that had been issued on an UPI reporter as part of a federal investigation to determine whether a particular Secret Service agent had "leaked" a photograph obtained from the home of John Hinckley's parents to the press. See supra Section III. C. The subpoena in that case sought to have the reporter divulge the identity of the source of information published.
In Bottomly v. Leucadia National Corp., 24 Media L. Rptr. (BNA) 2118 (D. Utah 1996), the United States District Court for the District of Utah quashed a subpoena on an Associated Press reporter that sought to have her disclose whether she had obtained certain published information from two attorneys in violation of a court protective order.
10th Cir.
In Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977), a documentary film maker investigating the death of Karen Silkwood was subpoenaed to give a deposition in a suit by Silkwood's estate against Silkwood's employer for civil rights violations. The district court denied the non-party, film maker's motion for protective order during pretrial proceedings. At the deposition the film maker refused to answer any questions involving the disclosure of information he felt was confidential. The Tenth Circuit's opinion reversing and remanding recognizes that confidential information is subject to a First Amendment qualified privilege.
District Courts within the Tenth Circuit have agreed that the First Amendment privilege applies as well to non-confidential information. They have disagreed over whether the burden on a party seeking to compel testimony about or production of non-confidential information is any lower than that for a party seeking to obtain confidential information.
In United States v. Foote, No. 00-CR-20091-01-KHV, 2002 WL 1822407 (D. Kan. Aug. 8, 2002), the United States District Court for the District of Kansas denied the non-party reporter's motion to quash subpoena. The court extended the reporter's privilege to non-confidential information. Applying the Silkwood balancing factors, the court found that the government "has made a sufficient showing regarding the relevancy, need and nature of the proposed testimony to defeat [the reporter's] Motion to Quash." The court noted that it was unable to apply the Silkwood balancing test to specific testimony from the reporter that may be privileged in nature, "[w]ithout knowing the specific information that will be sought." Id. at *3.
In Re/Max Int'l v. Century 21 Real Estate Corp., 846 F. Supp. 910, 911 (D. Colo. 1994) (Babcock, J.), the United States District Court for the District of Colorado held that the First Amendment reporter's privilege extends to non-confidential information (quoting Loadholtz v. Fields, 389 F. Supp. 1299, 1302-03 (M.D. Fla. 1975)). Where the non-confidential information was found not to be centrally relevant to the party's claim (because it was intended to be used only for impeachment purposes), the privilege was not overcome.
In Weathers v. American Family Mut. Ins. Co., 17 Med. L. Rptr. 1534 (D. Kan. 1989) and 17 Media L. Rptr. (BNA) 1846 (D. Kan. 1990), the court denied non-party reporters' motion to quash subpoena and motion for protective order. The reporters wrote an article about charges of arson brought against Weathers, the plaintiff. Later, American Family sought the reporter's 274 photographs of the plaintiff to defend against a libel claim. In the 1989 opinion, the court decided the references to the information sought were too vague to perform the Silkwood four-factor balancing test. The reporters were ordered to appear at the deposition, and during their appearance the reporters' invoked their privilege. Next, the insurance company sought to compel disclosure of the photos. In the 1990 decision, the court applied Silkwood's four-factor balancing test and found that the photographs were relevant to defend against the plaintiff's claim for physical and emotional injuries, somewhat necessary for a defense, and unavailable from any other sources. Finally, since the photographs were not confidential the court granted the motion to compel.
In another case, the District Court for Kansas again suggested that the reporter's privilege is easier to overcome when the subpoenaing party seeks only non-confidential information. See Farrington v. Crupper Transp. Co., 17 Media L. Rptr. (BNA) 1781 (D. Kan. 1990). The defendants served a subpoena duces tecum on a non-party (The Topeka Capital-Journal) for production of all photographs and negatives regarding an accident reported on by the Journal. The motion to quash and motion for protective order were denied, because the defendants showed the non-confidential photographs and negatives were relevant and otherwise unavailable, and these factors outweighed the First Amendment interest of the media to refuse to release the information.
10th Cir.
In Re/Max Int'l v. Century 21 Real Estate Corp., 846 F. Supp. 910, 911 (D. Colo. 1994) (Babcock, J.), the United States District Court for the District of Colorado held that the First Amendment reporter's privilege extends to non-confidential information (quoting Loadholtz v. Fields, 389 F. Supp. 1299, 1302-03 (M.D. Fla. 1975)). Where the non-confidential information was held not to be centrally relevant to the party's claim (because it was intended to be used only for impeachment purposes), the privilege was not overcome.
Similarly, in Artes-Roy v. City of Aspen, 20 Media L. Rptr. (BNA) 1647 (D. Colo. 1992), a United States Magistrate quashed a subpoena duces tecum seeking production of all files and documents concerning a published article concerning the civil litigation in which the subpoena was issued; although the court did not state whether it was deciding the matter under the First Amendment or Colorado's press shield law, it ruled that the plaintiff had not exhausted alternate sources by deposing all of the parties who were identified in the published article.
10th Cir.
There is no case law addressing this issue. Although not a media case, in Grandbouche v. Clancy, 825 F.2d 1463, 1467 (10th Cir. 1987), the Tenth Circuit held that a plaintiff may invoke the First Amendment privilege in resisting discovery directed against the plaintiff's claims; "the fact that [plaintiff] has placed certain information into issue by his complaint is a factor that the trial court should consider under the Silkwood balancing test." (Note: In Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977), the Tenth Circuit cited with approval Cervantes v. Time, Inc., 464 F.2d 486 (8th Cir. 1972), which was a defamation case where the media defendant successfully asserted the reporter's privilege.)
10th Cir.
In defamation actions, a federal court is required to apply the substantive law of the forum state, including statutory privileges. See Fed. R. Evid. 501. Accordingly, in libel cases, media defendants can invoke any applicable state shield law. See, e.g., Tilton v. Capital Cities/ABC, Inc., 95 F.3d 32, 33 (10th Cir. 1996) (affirming trial court's order denying plaintiff's motion to compel media defendants to disclose identity of confidential source) (applying Oklahoma's press shield statute); Quigley v. Rosenthal, 43 F. Supp. 2d 1163, 1173-74 (D. Colo. 1999) (granting motion to quash) (applying Colorado's press shield statute).
In defamation action where the forum state does not have a statutory shield law, media defendants must invoke the First Amendment as a basis for a claim of privilege, since the United States Constitution operates as a limitation upon the governmental actions of all courts of law, state or federal. (Note: In Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977), the Tenth Circuit cited with approval Cervantes v. Time, Inc., 464 F.2d 486 (8th Cir. 1972), which was a defamation case where the media defendant successfully asserted the reporter's privilege.)
In an unreported decision, the United States District Court for the District of Kansas applied the First Amendment reporter's privilege in the context of a defamation action. In Hart v. Playboy Enter., Inc., 6 Media L. Rptr. (BNA) 2571 (D. Kan. 1981) modifying 6 Media L. Rptr. (BJNA) 2567 (D. Kan. 1980), Dennis Hart, a former drug enforcement agent, sued Playboy magazine and Frank Browning, a reporter for the magazine, for libel. After Browning conceded that certain published statements complained of by Hart were, in fact, false, the court found the identity of Browning's confidential source was central to plaintiff's libel claim (to prove actual malice) and unavailable from any other source. Accordingly, the Court granted plaintiff's motion to compel and ordered Browning to disclose his confidential source. However, the court limited the disclosure to certain individuals, and if any subpoenas were issued for the confidential source the depositions would be sealed when filed. [The plaintiff's original motion to compel had been denied until alternative sources of the information were exhausted. See Hart v. Playboy Enter., Inc., 4 Media L. Rptr. (BNA) 1616 (D. Kan. 1981).]
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