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New York judge rules reporter's personal observations are protected

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  1. Protecting Sources and Materials
A U.S. District Court judge in New York ruled that a New York Times reporter cannot be forced to testify…

A U.S. District Court judge in New York ruled that a New York Times reporter cannot be forced to testify about his personal observations in a wrongful arrest case involving two Occupy Wall Street protestors.

The judge ruled that Times freelancer Colin Moynihan's personal observations were protected by the state's strong shield law. City officials subpoenaed Moynihan to testify about whether police officers warned two protestors to move out of the park before arresting them on Jan. 10, 2012 at Zuccotti Park.

Moynihan, who covered the Occupy Wall Street protests extensively for the newspaper, wrote a blog post on the Times website the next day about the arrest of the two protestors who refused to leave the park. What was in question in the wrongful arrest suit was whether the police officer warned the pair before arresting them. City officials subpoenaed Moynihan, who was at the scene, to testify.

U.S. District Court Judge Jed S. Rakoff ruled in an 8-page opinion released Tuesday that a reporter's personal observations while newsgathering are protected just like notes, videos and photographs.

"Exempting firsthand observations from the scope of the reporter's privilege would severely chill journalists from engaging in valuable firsthand reporting, such as performed by Moynihan here," Rakoff wrote.

The City argued that Moynihan was an ordinary bystander and should not be exempt from testimony, according to court documents. In addition, the City said that Moynihan would be the best witness because he was "unbiased" and that all other eyewitnesses were unavailable because their testimony would be tainted by their associations to the defense or the plaintiffs.

Judge Rakoff wrote that just because a "journalist is a disinterested witness" is not enough to subpoena him, especially when other witnesses are available. Under the New York shield law, the city must prove that no alternative sources for the information exists before being allowed to subpoena a reporter for his testimony.

The newspaper's attorney, David McCraw, said it was a great victory for the press.

"The decision makes two things very clear: that the reporter’s privilege attaches to a journalist’s eyewitness testimony and that a litigant must try to get the information from other sources before a journalist will be dragged into court, even if the reporter’s perspective may be more objective," said McCraw, "I am sure the decision will help other journalists in the future.”