A Chink in the Shield

Minnesota Supreme Court orders 73-year-old reporter to reveal sources

From the Fall 2003 issue of The News Media & The Law, page 18.

By Kirsten Murphy

A veteran of the Korean War and father of five children, Wally Wakefield spent nearly 30 years as an elementary school teacher in suburban St. Paul, Minn., before retiring in 1987. Never one to sit around the house, Wakefield decided to continue his “other” career, covering high school sports for a group of weekly newspapers in the area. Now 73, Wakefield still works as a part-time reporter for Lillie Suburban News.

This is the journalist who tested the limitations of the state’s shield law, and lost.

On Sept. 11, 2003, the state Supreme Court ruled 5-2 that Wakefield must reveal the confidential sources he used to co-author a story in 1997 about a fired high school football coach. Even though he wasn’t named in the ensuing defamation suit filed by the coach, the court ruled, overturning an appellate court decision, Wakefield is still legally required to divulge his secret sources.

At issue in the case, Weinberger v. Maplewood Review, is the exception within the state’s shield law that says the law’s protections of journalists may not apply in defamation cases. But in interpreting the law, the state appellate court reversed a Ramsey County District Court judge’s order, holding that the state shield law does not require a non-party reporter to disclose confidential sources if the main purpose of the disclosure is to make the reporter a witness against his sources. The appeals court also held that Weinberger had not shown sufficient evidence of actual malice. The state’s Supreme Court disagreed.

There’s “no question that the ruling has put everyone on guard,” says Anders Gyllenhaal, editor of the (Minneapolis) Star Tribune, because it “indicates a shift in the way courts are looking at these kinds of cases. It’s of great concern.”

Writing for the majority, Justice Alan Page wrote that the Minnesota statute exception applies in any defamation action, regardless of whether the media is a party to the action. Furthermore, the court held, it was “self-evident” that the identity of the speakers would lead to relevant evidence of actual malice.

Minnesota’s shield law prevents litigants from subpoenaing a journalist in any civil case. However, an exception to the shield law for defamation cases says that reporters must reveal their confidential sources if: a plaintiff proves that disclosure of the reporter’s sources will lead to relevant evidence on the issue of actual malice; there is probable cause to believe that the source has clearly relevant information; and the information cannot be obtained by other means.

The trial court had already determined that the published statements were defamatory. The Supreme Court decided that Wakefield’s sources could provide relevant evidence on the issue of actual malice, and there was probable cause to believe Wakefield’s sources held information relevant to the case that could not be obtained elsewhere.

Several other states have shield laws that contain a defamation exception, including Oregon, Tennessee and Colorado. Unlike Minnesota, however, the exceptions only apply when the reporter is a party in the lawsuit.

Writing for the dissent, Justice Helen Meyer, joined by Justice Paul Anderson, criticized the court for failing to recognize the First Amendment dimensions of its decision. The shield, wrote Meyer, “was intended to give more protection to reporters than is available under the First Amendment.”

A straightforward application of the First Amendment, she said, would allow the media to protect confidential sources and carry out the intent of the statute. Meyer applied a balancing test used by federal circuit courts in reporters’ privilege cases, and determined that the plaintiff had not proven that disclosure was “necessary or critical to his case.” Balanced with reporters’ interest in confidentiality and the public’s “legitimate interest in issues surrounding public education,” the plaintiff’s claim fails, Meyer wrote.

Meyer went on to conclude that even under the Minnesota statute, the plaintiff failed to meet the requirements of the three-part test. The plaintiff did not prove that disclosure would lead to relevant evidence of actual malice, and the “majority’s broad interpretation of this prong dilutes it to the point where it is meaningless, because any defamation plaintiff could satisfy it,” wrote Meyer.

Furthermore, the plaintiff did not show the statements to be false, and therefore had not proven defamation.

“A defamation plaintiff cannot transform a reporter from a neutral observer into an informant for the plaintiff when the information sought is not necessary to maintain the plaintiff’s case,” Meyer concluded.

The Reporters Committee for Freedom of the Press and several other media groups filed a friend-of-the-court brief in the case, arguing that Wakefield should be allowed to maintain his sources’ confidentiality because he is not a party in the lawsuit.

The case arose following the firing of Richard Weinberger, a former football coach at Tartan High School. Maplewood Review sports reporter Jason Tarasek wrote an article about the firing, using anonymous quotes gathered by Wakefield. His confidential sources said Weinberger was fired for using foul language and being abusive toward players.

Weinberger brought a defamation suit against the school district and four school officials, but not the Maplewood Review or Wakefield. Weinberger then subpoenaed Wakefield to learn the identities of the anonymous sources. District Court Judge Dale Lindman ordered Wakefield to comply and slapped him with a fine of $200 per day until he revealed the names of his sources.

Mark Anfinson, Wakefield’s attorney, says he still believes there is a chance the trial court will reevaluate the case. He says he plans to show that nothing will be gained by forcing Wakefield to divulge his sources. “It’s clear [Weinberger] will lose because he can’t prove actual malice,” Anfinson said.

Minnesota enacted its shield statute in 1973, one year after the U.S. Supreme Court failed to provide definitive support for a constitutional reporter’s privilege in Branzburg v. Hayes. In State v. Turner in 1996, the Minnesota Supreme Court also rejected the argument for a qualified constitutional reporter’s privilege under the First Amendment in criminal cases, and limited the reach of the shield law to confidential information. Amendments passed in 1998 broadened the scope of the protection under the shield law to include nonconfidential information.

In light of Turner, Anfinson says he was wary the court would not accept the argument for a reporter’s privilege under the First Amendment in civil cases. Anfinson says that Minnesota Rep. Joe Atkins is working on legislation to amend the shield law once again, but worries that “putting the law in play” before the Minnesota legislature could have negative consequences for the law as a whole.

John Borger, a partner at Faegre & Benson in Minneapolis, says Weinberger is a narrow decision, noting that the court “tries to cabin the effect of the decision to cases where there is already a named defendant and an attempt to confirm the source of the statements.”

As for Wakefield, he believes the ruling will have a negative effect on Minnesota reporters. He half-jokes that he will have to go to Wisconsin from now on to speak with sources who want an enforceable promise of confidentiality, but has no doubts about his decision to protect his sources.

“All along I thought I was correct about this,” Wakefield said, “and I still think I am.”