A Limited Privilege

Limiting the reporter’s privilege to information that would reveal a confidential source does not protect the newsgathering process

From the Winter 2004 issue of The News Media & The Law, page 22.

By Kirsten Murphy

News coverage of the shooting of a drug dealer has led to a Pennsylvania Supreme Court decision that rolls back the protections offered by the state shield law.

The court limited the reach of the shield law, ruling that only information that would reveal a confidential source is protected. But media advocates point out that there are important reasons to protect unpublished information, even if no confidential source is involved. Subpoenas of such notes, they argue, have an insidious effect on the newsgathering process.

In what appeared to be an act of vigilantism, Brian Tyson shot a local drug dealer in his North Philadelphia neighborhood in 1997. Tyson claimed he was fed up with the presence of drug dealers in his neighborhood, but later pleaded self-defense. While awaiting trial, Tyson contacted Philadelphia Inquirer reporter Mark Bowden to talk about the shooting. Bowden and Philadelphia Tribune reporter Linn Washington Jr. spoke to Tyson on several occasions and each wrote articles about the case.

After the stories were published, prosecutors subpoenaed Bowden and Washington in October 2000 to turn over all notes of their conversations with Tyson. Both reporters refused and filed motions to quash the subpoenas, arguing that the state shield law and the First Amendment protected the unpublished materials.

But in December 2000, Judge Jane Cutler Greenspan of the Philadelphia Common Pleas Court found Washington and Bowden, who is the author of the book “Black Hawk Down,” in contempt of court for refusing to produce their notes. She fined each reporter $100 a minute until they complied with the order or the case ended.

The state Court of Appeals upheld the trial court order on the grounds that Tyson was not a confidential source, but ruled that the fines imposed were harsh and excessive.

Tyson was convicted of third-degree murder in December 2000, without the reporters’ notes, and sentenced to 10-30 years in prison.

The contempt fines reached $80,000 before the state Supreme Court ruled in December 2003 that the notes were not protected by the state shield law or the U.S. Constitution.

Rejecting the reporters’ argument that the state shield law provides an absolute privilege that protects unpublished materials, the court concluded that the law only protects the identification of confidential sources. Because Tyson was the known source of the unpublished notes, the information was not protected.

“Disclosure here would not inhibit the free flow of information to the media through the revelation of any confidential human sources,” the court said in its opinion.

But as Chief Justice Ralph J. Cappy, joined by Justice Ronald D. Castille, pointed out in his dissent in the case, Commonwealth v. Bowden, “Tips and leads that the news media rely upon for reporting on matters of great public importance would dry up unless newsmen are able to fully and completely protect the sources of their information.”

Nonetheless, the court found that the state had overcome the reporter’s privilege by showing all other sources were exhausted, and that it needed the information to prove its case against Tyson.

Bowden’s attorney, Robert Heim, called the court’s decision “bad First Amendment policy.”

“One of the troubling things about the opinion is that it increases the likelihood that reporters will be subject to subpoenas when they interview disclosed sources,” Heim said. “But the policy of the First Amendment is to encourage reporters to pursue stories.”

Free press advocates argue that even if confidential sources are not involved, any compelled disclosure of a reporter compromises the independence of the news media and annexes the press as an “investigative arm” of the government or civil litigant seeking disclosure.

Robert Clothier, an attorney who practices media law in Pennsylvania, said an increase in the number of subpoenas to reporters will damage the image of journalists as “objective purveyors of information, and creates a public perception that reporters are not independent.”

In addition to jeopardizing the appearance of journalists as independent and objective observers, Clothier said the decision will likely deter sources who do not want to reveal information that could come out in legal proceedings, undermining the free flow of information to the public.

Reporters themselves may also be directly affected by the ruling.

“[I]t gives reporters an incentive to throw away their notes, which hurts their ability to do their jobs when they want to go back and look at their notes as they continue coverage of an issue,” Clothier said.

Another frequent problem with subpoenas of reporters’ notes is what’s known as the “lazy lawyer” syndrome. “If there is no barrier, there will be more and more fishing expeditions on a routine basis,” Clothier said.

Terri Henning, media law counsel for the Pennsylvania Newspaper Association, said she hopes that because the court distinguished between criminal and civil cases, a higher hurdle will prevent civil litigants from subpoenaing unpublished notes. However, the state Supreme Court’s decision is still troubling for reporters.

“The court,” Henning said, “has significantly eroded the protection offered by Pennsylvania’s Shield Law when a reporter is gathering information from known sources.”