Reporter faces $200-a-day penalty for refusing to disclose sources

From the Winter 2002 issue of The News Media & The Law, page 39.

By Monica Dias

When a high school football coach in suburban St. Paul, Minn., was fired without any explanation from school officials, Wally Wakefield did something he considered routine. The sports reporter for the weekly Maplewood Review called his sources to find out why.

Those phone calls led Wakefield to a courtroom, where he has fought to protect the confidentiality of his sources while a judge threatens him with a $200-a-day fine.

“There’s no way I can afford $200 a day,” said Wakefield, a 71-year-old retired elementary school teacher who says he makes about $10 an hour covering sports part-time for Lillie Suburban Newspapers Inc.

Wakefield’s sources told him that Richard Weinberger, the head football coach at Tartan High School for 10 years, had been fired because of accusations of misconduct and maltreatment of the team’s players. They told Wakefield that the coach intimidated the players. Wakefield put those statements in the story he wrote five years ago.

Weinberger sued the school district and four school officials for defamation, but he did not sue Wakefield or the newspaper. Instead, the ex-coach subpoenaed Wakefield to identify the sources quoted in the story. Ramsey County District Court Judge Dale B. Lindman ordered Wakefield to comply with the subpoena and found Wakefield in contempt of court on Nov. 6 when he refused.

The threatened $200-a-day fine has been suspended while Wakefield appeals to the Minnesota Court of Appeals.

Wakefield’s refusal to reveal his sources and the judge’s insistence that Wakefield do so has called into question the strength of Minnesota’s shield law. That law, called the Minnesota Free Flow of Information Act, grants reporters a “substantial privilege” not to reveal confidential sources or unpublished information.

However, the privilege can be overcome in certain criminal cases and in defamation cases.

The defamation exception allows a court to order a reporter to name a confidential source if two conditions are met. First, there has to be probable cause to believe that the source has information clearly relevant to defamation. Second, the information cannot be obtained by any means other than the reporter’s testimony.

The shield law has not protected Wakefield so far. Lindman ruled that under the defamation exception, Wakefield must name the sources.

“This is one of those remarkably rare cases where he falls smack into the twilight zone of this defamation exception,” said Wakefield’s attorney, Mark Anfinson.

The Reporters Committee for Freedom of the Press and several other media groups argued in a friend-of-the-court brief filed Dec. 21 with the Minnesota Court of Appeals that Wakefield should be allowed to keep his sources’ identities secret because he isn’t a party in the case.

The media organizations argued that the Minnesota Legislature intended the defamation exception to apply only when a journalist is sued for defamation. The order, they warned, could damage journalism throughout Minnesota by impeding the quality of information that the public receives on important issues.

Minnesota media groups are considering asking the Legislature to rewrite the state’s shield law to make it clear that the defamation exception applies only when a reporter is a party in a libel case, said Anfinson, also the attorney for the Minnesota Newspaper Association.

Meanwhile, about 200 reporters and broadcasters in Minnesota have signed a petition that supports Wakefield and urges that no legal action be taken against him. The petition drive, organized by the Minnesota Newspaper Guild Typographical Union, might be delivered to the courts, said Jon Tevlin, a union steward.

Wakefield does not know what he will do if the appellate court orders him to name his sources. One problem is that he is not certain he can recall the source for each of the 10 statements that Lindman wanted identified. However, the court could order him to name everyone he talked to for the story, including confidential sources, even if he cannot link the sources to the statements.

His decision to defy the trial judge was not an easy one, but he said he remains convinced he made the right choice.

“Once I made the decision that this is the route I was going to go, that this was important enough of an issue to not back down on the thing, I really felt good about it,” he said. “I quit losing sleep.” (Weinberger v. Independent School District No. 622)