Court finds no federal privilege to protect NBC video outtakes

SECOND CIRCUIT–NBC must turn over outtakes from a “Dateline NBC” segment on biased police stops because no reporter’s privilege exists under federal law for non-confidential information, a unanimous panel of the U.S. Court of Appeals in New York City (2nd Cir.) held in late September.

The court stated that it continues to recognize a qualified privilege for reporters under the First Amendment that allows them to protect confidential sources and information, at least in civil cases. But the “balance of interests is crucially different” when “the information sought to be protected is not confidential,” the court held. The appellate court upheld lower court orders directing NBC to produce the unbroadcast videotape and holding NBC in contempt for failing to turn it over.

In refusing to recognize a privilege for non-confidential information, the court noted that there was “no persuasive argument, much less any empirical evidence, as to how disclosure of non- confidential material after a news story has been published will interfere with journalists’ editorial decisions.”

The original subpoenas were issued in a civil rights claim brought by Albert and Mary Gonzales against a Louisiana deputy sheriff. The network is not a party to the case.

The Gonzaleses claimed that the deputy pulled them over on an interstate without probable cause or reasonable suspicion and that the deputy exhibited a “pattern and practice” of similarly discriminatory behavior toward Hispanics and other minorities.

The Gonzaleses sought copies of unedited, unbroadcast videotape from NBC because a January 1997 episode of “Dateline” contained a segment in which it reported on abuses of power by law enforcement officers during traffic stops. The “Dateline” videotape was obtained by a reporter with a hidden camera and focused on unwarranted stops, particularly of out-of-state travelers, in Louisiana.

After the Gonzaleses subpoenaed NBC for unbroadcast tape, the deputy sheriff served a subpoena on NBC that requested the same videotape. NBC objected to both subpoenas on the grounds that they were unduly burdensome and that they sought information that is protected by a reporter’s privilege under the First Amendment.

The trial court, in response to NBC’s objection, recognized a qualified privilege for reporters under federal law, but held that the privilege was overcome in this case by the need for disclosure after applying a three-part balancing test that considered whether the material sought was “highly material and relevant,” whether it was “necessary or critical” to the claim, and whether it was available from other sources.

After determining that the reporter’s privilege would yield to the Gonzaleses’ and the deputy’s interests in obtaining the unbroadcast tape, the trial court ordered disclosure and ultimately found NBC in contempt for failing to turn over the requested tape.

NBC subsequently appealed to the U.S. Court of Appeals in New York City, which upheld the contempt order and directed the network to produce the tape. The court refused to recognize a reporter’s privilege and, therefore, found the three-part balancing test applied by the trial court unnecessary. “Our holding today,” the court stated, “is that there is no journalists’ privilege for non-confidential information.”

The court not only rejected the argument that forced disclosure of non-confidential information will hinder the press, it stated that “if anything, such scrutiny is likely to enhance the reliability and truthfulness of newsreporting.”

NBC will seek to have the three-judge panel’s ruling reheard by the entire appellate court. (Gonzales v. National Broadcasting Co., Inc.; Media Counsel: Susan Weiner, New York)