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$100-a-minute fine against two reporters ruled excessive

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  1. Protecting Sources and Materials

    NMU         PENNSYLVANIA         Confidentiality/Privilege         Jun 19, 2002    

$100-a-minute fine against two reporters ruled excessive

  • A Pennsylvania appeals court upheld a contempt citation against Philadelphia newspaper reporters who refused to turn over unpublished notes to prosecutors in a murder trial, but the court overturned the $80,000 penalty.

An appeals court upheld a contempt order against two Philadelphia newspaper reporters but rejected fines totaling $80,000 as “harsh and excessive.”

The state Superior Court in Philadelphia ruled 2-1 on May 29 that a trial judge correctly held Philadelphia Inquirer reporter Mark Bowden and Philadelphia Tribune reporter Linn Washington Jr. in contempt for refusing to provide information from interviews with a murder suspect.

Philadelphia Common Pleas Judge Jane Cutler Greenspan (1st Dist.) found the reporters in contempt on Dec. 13, 2000. She ordered them to pay a fine of $100 per minute, which accumulated to $40,000 for each reporter during seven hours of the murder trial of Brian Tyson. The fines were suspended during the appeal.

“Such a steep sanction on reporters is unprecedented in Pennsylvania, and we have little difficulty in ruling this an abuse of discretion,” the appeals court ruled, sending the case back to the trial court to set a “more appropriate dollar amount.”

Bowden and Linn interviewed Tyson before Tyson’s trial for shooting and killing Damon Millner, a neighbor and drug dealer. Tyson told police he killed Millner in self-defense. He told the reporters about the problems drug dealers brought to his neighborhood and that, at the time of the shooting in 1997, he had been in a two-year feud with local drug dealers.

After the reporters published their articles, prosecutors subpoenaed them for their testimony and unpublished notes from the interviews with Tyson. The trial judge later narrowed the request to any statements Tyson made involving the shooting or his relationship with drug dealers in his neighborhood.

In upholding the contempt order, the appeals court held that the reporters had a First Amendment privilege against forced disclosure of information. But prosecutors had overcome the privilege by showing that they could not obtain the information from another source and that the information was relevant and crucial to their case, the court held.

Tyson was the only other source for the information, the ruling says. Prosecutors “cannot be expected to rely on a criminal defendant to provide it with statements on cross-examination that are inconsistent with his direct testimony,” the majority opinion written by Judge Peter Paul Olszewski said.

The reporters’ information was relevant and crucial to countering Tyson’s self-defense claim and for impeaching his credibility, the court decided.

Tyson was convicted without the information from the reporters.

Pennsylvania’s shield law, which protects reporters from forced disclosure of the source of any information, did not apply because prosecutors had an “important constitutional need” central to the criminal case, the court held.

Bob Clothier, Bowden’s attorney, described the court’s ruling on the shield law as an “extremely narrow and limited holding that should not apply to the vast bulk of subpoenas that reporters receive.” The appellate court’s holding also was preferable to the view of the trial judge, who ruled that the shield law protects only information from confidential sources, Clothier said.

In his dissenting opinion, Judge Correale F. Stevens wrote that the ruling “incorrectly further restricts the First Amendment rights which are so important to freedom of speech and of the press.” He also believed the state shield law should have protected the reporters.

The newspapers have not decided whether to appeal, Clothier said.

(Pennsylvania v. Tyson; Media counsel: Bob Clothier and Amy Ginensky, Dechert, Philadelphia; Katherine Hatton, Philadelphia Newspapers) MD

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