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Appeals court overrules judge-made exception to shield law

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NEWS MEDIA UPDATE   ·   PENNSYLVANIA   ·   Confidentiality/Privilege   ·   Jan. 5, 2007

NEWS MEDIA UPDATE   ·   PENNSYLVANIA   ·   Confidentiality/Privilege   ·   Jan. 5, 2007

Appeals court overrules judge-made exception to shield law

  • An appeals court held this week that a court cannot create an exception to a state shield law that gives journalists absolute protection.

Jan. 5, 2007  ·   An appeals court in Pennsylvania reversed a controversial 2005 decision on Wednesday, striking down a court-made exception to the state shield law’s absolute protections.

Reporter Jennifer Henn and The Times-Tribune of Scranton, Pa., will not be compelled to disclose the identity of the source who gave Henn information about the grand jury testimony of two local government officials.

The lower court had previously ruled that since the grand jury testimony was leaked illegally, Henn could not claim the shield law’s protection. However, the appeals court held that since there are no exceptions to a journalist’s absolute right to protect his or her sources written into the statute, the court cannot simply create exceptions.

In 2004, Lackawanna County commissioners Randall A. Castellani and Joseph J. Corcoran sued reporter Henn and her former employer, the jointly-owned Scranton Times and Scranton Tribune, for defamation. The newspapers have since merged into The Times-Tribune.

The lawsuit was based on two of Henn’s stories in which she cited “an unnamed source close to the investigation” and characterized Castellani and Corcoran as “evasive” and “uncooperative” when they testified before a grand jury.

When the grand jury testimony was made public, the unnamed source’s statements were inconsistent with the official record from the proceedings.

Castellani and Corcoran asked the court to demand that Henn reveal her source. They argued that since leaking grand jury testimony is against the law, the absolute reporter’s privilege granted by the shield law should not apply.

Pennsylvania’s shield law says that no journalist “shall be required to disclose the source of any information . . . in any legal proceeding, trial or investigation” and contains no exceptions.

However, lower court Judge Robert A. Mazzoni ruled in 2005 that when the free flow of information “clashes with the need to enforce and protect the foundation of the grand jury purpose, the Shield Law should relinquish its priority.”

Pennsylvania law bars prosecutors, court officials and jurors from divulging grand jury testimony, though witnesses are allowed to discuss their own testimony.

In Wednesday’s opinion, appeals court Judge Zoran Popovich wrote for a three-judge panel that “[t]he fact that a crime may have occurred by virtue of the alleged disclosure of certain grand jury testimony does not necessitate or empower this Court to craft a new exception to the Shield Law.”

Popovich noted that both the trial court and the appeals court are “forbidden from reading into the Shield Law an exception neither enacted by the General Assembly nor found by the Supreme Court as the result of a developing body of law.”

Henn’s attorney, Donald Brobst, said he was not surprised that the lower court’s decision was reversed.

“The lower court fundamentally violated the basic principle that courts don’t amend statutes,” Brobst said. “The shield statute is clear. There is no ambiguity, and they can’t create exceptions that aren’t there.”

(Castellani v. The Scranton Times, Media Counsel: Donald H. Brobst, Rosenn Jenkins & Greenwald, Wilkes-Barre, Pa., and J. Timothy Hinton, Jr., Haggerty McDonnell and O’Brien, Scranton, Pa.)ES

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