Reporter’s privilege in place unless plaintiff shows ‘probably false’ statement

From the Fall 2000 issue of The News Media & The Law, page 24.

A Denver radio talk show host’s $5,000 fine for failing to reveal confidential sources in a libel case against him was reversed by the Colorado Supreme Court on Sept. 12. The court reversed the trial court’s contempt order and remanded the case for further fact finding.

Radio talk show host Peter Boyles was accused of making defamatory statements about a Denver police officer, Bryan Gordon. During one of his programs on KHOW-AM, Boyles said Gordon and another police officer had a fight at a Denver club over a woman. Boyles accused the Denver police of covering up the incident because Gordon is the son of a high-ranking police official.

Boyles, who relied on confidential sources for his information, refused to name them in a lawsuit initiated by Gordon and his wife. Colorado District Court Judge Herbert Stern granted the plaintiff’s motion to compel Boyles to name his sources. When Boyles continued to refuse to name his sources, the judge held him in contempt and issued the fine.

Boyles appealed the contempt order and the state supreme court ruled, in defamation cases where the news media is the defendant, the trial judge must determine whether a defendant’s allegedly defamatory statements are probably false before the reporter’s privilege is overcome.

Justice Michael Bender, writing for the court, agreed with a trial court’s interpretation of the state Newsperson’s Privilege, holding a party seeking to defeat the privilege in a defamation case must meet the three-part statutory test. Under the third, and most disputed, part of the test, the court must weigh whether the interest of the party seeking the information is stronger than the news media’s First Amendment interests. In the balancing test, the plaintiff must prove the statements were probably false.

Even if the information was false, however, the court ruled a reporter can still protect the source’s confidentiality by “demonstrat[ing] that there was a reasonable basis to believe that a source’s information was true at the time it was reported.”

The court emphasized that compelled disclosure should only occur as a last resort after other attempts to promote effective administration of justice have failed. — DB