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Contempt order overturned due to invalid seal

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From the Summer 2000 issue of The News Media & The Law, page 13.

From the Summer 2000 issue of The News Media & The Law, page 13.

A civil contempt conviction against a reporter for refusing to identify his sources was overturned because the lower court’s interest in obtaining the identity of the source was not compelling, a unanimous panel of the U.S. Court of Appeals in Richmond (4th Cir.) held July 6.

The court’s order sealing a settlement agreement was invalid, and so it did not have an interest in finding out who leaked details to reporter Cory Reiss.

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Wilmington, N.C., Morning Star reporter Cory Reiss was covering an environmental torts lawsuit between oil company Conoco, Inc., and residents of a neighborhood in Wilmington who alleged that Conoco’s oil supply had contaminated their drinking water. The suit ended in a confidential settlement agreement reached after the jury found Conoco liable for punitive and compensatory damages but before the jury determined the amount of punitive damages.

On September 18, 1997, the federal district court in Wilmington sealed the settlement agreement “for good cause shown” at the request of the parties, without giving public notice or an opportunity for outside parties interested in the case, such as the Morning Star, to voice objections. The district court then dismissed the case.

Reiss interviewed a number of the residents involved, learned through two confidential sources that the settlement amount was $36 million and reported that figure on October 15, 1997. Conoco moved that Reiss be held in civil contempt by the district court, while the U.S. Attorney moved that Reiss be charged with criminal contempt. An independent counsel was appointed to pursue the criminal charge after Attorney General Janet Reno refused to authorize the prosecution.

Another Morning Star reporter, Kirsten Mitchell, and the newspaper itself were held in criminal and civil contempt for reading the sealed settlement agreement in court files. (See related story, p. 37)

At the hearing on the contempt motions, Reiss was found not guilty. Conoco then moved that Reiss be compelled to identify his sources, and Reiss refused to do so. The district court noted that in the Fourth Circuit, a reporter can only be compelled to disclose a source if the information is relevant, if it cannot be obtained by alternative means, and if there is a compelling interest in the information. The court found that the sources’ identities were irrelevant to the contempt order and that Conoco had not exhausted all other avenues in learning the identities of those who had divulged the settlement to Reiss, and so denied the motion.

Three months later, on April 13, 1998, Conoco renewed its motion to compel Reiss to identify his sources. The compelling interest in the information, according to the oil company, was the district court’s own interest in learning who had violated the court-approved confidentiality agreement. The court agreed, saying it had an “obligation” to discover the sources and “hold them accountable.” It also found that Conoco had now exhausted all alternative means for learning the information. Reiss again refused to identify his sources and was held in civil contempt of court.

The civil contempt order was appealed to a panel of the federal Court of Appeals in Richmond, which in July 2000 unanimously overturned the contempt citation.

The Court of Appeals held that the district court had not presented, and could not present, a compelling interest to compel disclosure of Reiss’ sources because, in the companion case involving Mitchell and the newspaper decided the same day, the appellate court had held the order sealing the settlement agreement was invalid.

“Under other circumstances, enforcement of a validly entered confidentiality order might well provide a compelling interest,” the Court wrote. “However, the sealing order entered in this case is invalid. . . . Enforcement of an invalid confidentiality order cannot serve as a compelling interest justifying disclosure of a reporter’s confidential sources.”

For the confidentiality order to have been valid, the district court would have had to have given public notice of its intent to seal the decision and given “interested parties” an opportunity to voice objections, considered “less drastic alternatives” to sealing the settlement, and provided specific reasons in writing for sealing the settlement, according to the appellate court.