|News Media Update||FIRST CIRCUIT||Confidentiality/Privilege|
First Circuit affirms civil contempt order against reporter
- A three-judge panel of the U.S. Court of Appeals in Boston upheld a lower court’s contempt finding and $1,000-per-day fine of a TV reporter who has refused to reveal the identity of a confidential source.
June 22, 2004 — A federal appeals court panel in Boston yesterday upheld a civil contempt finding against Jim Taricani, a reporter for WJAR-TV in Providence, R.I., who has refused to obey a court order to reveal the confidential source who gave him a videotape of an undercover FBI investigation.
Taricani appealed to the U.S. Court of Appeals in Boston (1st Cir.) after U.S. District Court Judge Ernest C. Torres found Taricani in contempt on March 16 and ordered him to pay a $1,000-per-day fine until he revealed the identity of his source. The circuit court granted a temporary stay of the fine, pending the outcome of the appeal.
The three-judge panel — composed of Chief Judge Michael Boudin, Judge Kermit V. Lipez and Judge Jeffrey R. Howard — found that Taricani’s “First Amendment argument is an uphill one in light of the Supreme Court’s Branzburg decision.”
The 1972 decision Branzburg v. Hayes rejected a constitutionally-based privilege for reporters not to have to testimony before a grand jury investigating criminal charges. The First Circuit rejected Taricani’s argument that Branzburg should not apply outside the grand jury context, finding that “Branzburg governs in this case even though we are dealing with a special prosecutor rather than a grand jury.”
A protective order issued by Senior U.S. Judge Ronald R. Lagueux had barred the attorneys, investigators and defendants involved in the FBI investigation from releasing any of the videotapes. When Taricani received one of the tapes under a confidentiality agreement, and WJAR-TV aired it, a special prosecutor was appointed to investigate the leak.
The videotape, aired by WJAR in February 2001, shows a former Providence City Hall official taking a bribe from an undercover FBI informant in a sting dubbed “Operation Plunder Dome.” Former Providence Mayor Vincent “Buddy” Cianci Jr. was later convicted on corruption charges and is currently serving a five-year, three-month sentence in federal prison.
Turning to First Circuit precedent, the panel found that the leading cases in the circuit require “heightened sensitivity” to First Amendment concerns and invite a “balancing” of considerations.
However, a reporter’s confidential sources may be compelled when directly relevant to a good faith investigation or claim and alternative sources of information are not available, the panel wrote.
“In all events, in this case there is no doubt that the request to Taricani was for information highly relevant to a good faith criminal investigation; and, as already noted, that reasonable efforts were made to obtain the information elsewhere,” the panel held.
Judge Torres, of federal district court, held in an October 2003 decision that the special prosecutor’s need for the name of the source outweighed any harm to the free flow of information that might be caused by compelled disclosure.
According to a story in The Providence Journal today, Clare Eckert, vice president for advertising and promotion for WJAR, said: “We are evaluating our options as to our next step in the process. We maintain our position that if the courts can compel reporters to break their promise of confidentiality, many sources will withhold newsworthy information that is important to share with the public.”
(In re special proceedings; Media Counsel: Jonathan M. Albano, Boston, Mass.) — KM
© 2004 The Reporters Committee for Freedom of the Press