I. Defamation actions
In defamation actions, a federal court is required to apply the substantive law of the forum state, including statutory privileges. See Fed. R. Evid. 501. Accordingly, in libel cases, media defendants can invoke any applicable state shield law. See, e.g., Tilton v. Capital Cities/ABC, Inc., 95 F.3d 32, 33 (10th Cir. 1996) (affirming trial court's order denying plaintiff's motion to compel media defendants to disclose identity of confidential source) (applying Oklahoma's press shield statute); Quigley v. Rosenthal, 43 F. Supp. 2d 1163, 1173-74 (D. Colo. 1999) (granting motion to quash) (applying Colorado's press shield statute).
In defamation action where the forum state does not have a statutory shield law, media defendants must invoke the First Amendment as a basis for a claim of privilege, since the United States Constitution operates as a limitation upon the governmental actions of all courts of law, state or federal. (Note: In Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 437 (10th Cir. 1977), the Tenth Circuit cited with approval Cervantes v. Time, Inc., 464 F.2d 486 (8th Cir. 1972), which was a defamation case where the media defendant successfully asserted the reporter's privilege.)
In an unreported decision, the United States District Court for the District of Kansas applied the First Amendment reporter's privilege in the context of a defamation action. In Hart v. Playboy Enter., Inc., 6 Media L. Rptr. (BNA) 2571 (D. Kan. 1981) modifying 6 Media L. Rptr. (BJNA) 2567 (D. Kan. 1980), Dennis Hart, a former drug enforcement agent, sued Playboy magazine and Frank Browning, a reporter for the magazine, for libel. After Browning conceded that certain published statements complained of by Hart were, in fact, false, the court found the identity of Browning's confidential source was central to plaintiff's libel claim (to prove actual malice) and unavailable from any other source. Accordingly, the Court granted plaintiff's motion to compel and ordered Browning to disclose his confidential source. However, the court limited the disclosure to certain individuals, and if any subpoenas were issued for the confidential source the depositions would be sealed when filed. [The plaintiff's original motion to compel had been denied until alternative sources of the information were exhausted. See Hart v. Playboy Enter., Inc., 4 Media L. Rptr. (BNA) 1616 (D. Kan. 1981).]
A reporter’s privilege exists where a subpoena seeks the identity of a journalist's confidential source in a civil case, including a defamation case in which the reporter or media organization is a party. Miller v. Transamerican Press, Inc., 621 F.2d 721, 726, as modified, 628 F.2d 932 (5th Cir. 1980). The party seeking the information must demonstrate with substantial evidence that the information is relevant, not available elsewhere, and the need for the information is compelling. Id.
The privilege is available in defamation as well as in non-defamation cases. Where a court determines that the identity of the source will not further the plaintiff’s case, it will not be compelled. Howard v. Antilla, 191 F.R.D. 39 (D.N.H. 1999). In Howard, the court held that the identity of sources of false rumors that Antilla reported in a newspaper article were not essential to the libel suit brought by the subject of those rumors because the identities of the sources shed no light on the question of Antilla’s defamatory intent. Id. In Alharbi v. TheBlaze, Inc., 199 F. Supp. 3d 334 (D. Mass. 2016), Alharbi sued radio and television commentator Glen Beck and the owner and distributor of his shows for defamation on grounds they falsely claimed Alharbi was involved in recruiting the Tsarnaev brothers, that he gave the “go-order” for the Boston Marathon bombings and that he was the money man behind the attack. Id. at 340. Alharbi moved to compel the defendants to identify the confidential government sources they relied upon in developing the broadcasts. Id. While recognizing the First Circuit’s heightened sensitivity to First Amendment concerns and its balancing of interests, the court ordered the defendants to disclose the identities of two of their six confidential sources. Id. at 349-50. As to these two confidential sources, the court found Alharbi had demonstrated his claim of need and relevancy was not frivolous and that he could not obtain information to verify the truth of what the confidential source told the defendants from a less sensitive source. Id. at 350.
The same formulation of the test to determine if a qualified privilege exists in non-libel suits applies in libel suits, but the privilege is weaker in a libel suit. See Aequitron Med. Inc. v. CBS, Inc., 24 Med. L. Rptr. 1025, 1995 U.S. Dist. Lexis 9485 (S.D.N.Y. 1995). For example, in Aequitron, journalists for "CBS This Morning" asserted the privilege to withhold non-confidential documents requested by plaintiffs in a trade libel and defamation case. Plaintiff corporation, which manufactured infant heart rate and respiration monitors that are used to protect infants from SIDS, accused defendant CBS of making false, deceptive and defamatory statements about the monitors. The court applied the three-prong qualified privilege test for CBS, but the court emphasized that the privilege is weaker in a libel case against a media defendant where the plaintiff seeks non-confidential information. Id. at *8. The court held that the plaintiff overcame the privilege because the plaintiff met all three prongs of the privilege test. Id. at *9. (For more discussion of Aequitron see Section VI.B.1.)
While courts in the Third Circuit do not appear to have created a formal "libel exception" to the reporter's privilege, the Court of Appeals at least has raised the question whether the privilege would apply where the reporter or a media organization is a defendant in a libel action and the publication is alleged to have been made with constitutional malice. Riley, 612 F.2d at 716 (reversing contempt citation against journalist who declined to comply with disclosure order, but observing that case before it was not "a situation in which the journalist and/or publisher are defendants in a suit brought for damages caused by publications alleged to have contained knowing or reckless falsehoods").
On the other hand, federal courts in the Third Circuit sitting in diversity have applied Pennsylvania's shield law to bar discovery of a reporter's sources and notes even in a libel action in which the defendant has been granted summary judgment on the basis of an absence of actual malice, at least where the plaintiff is a public official. See, e.g., Coughlin v. Westinghouse Broad. & Cable Inc., 780 F.2d 340, 342 (3d Cir. 1985); Lal, 551 F. Supp. at 366. The district court in New Jersey has done likewise with respect to that state's "comprehensive and absolute" shield law. Prager v. ABC, Inc., 569 F. Supp. 1229, 1239 (D.N.J. 1983), aff'd, 734 F.2d 7 (3d Cir. 1984) (table); see also Downey v. Coal. Against Rape & Abuse, Inc., No. Civ. 99-3370 (JBS), 2001 WL 34379465, at *5-7 (D.N.J Dec. 6, 2001) (quashing deposition notice to media defendant because “the need of a defamation plaintiff to prove her claim must give way” to absolute privilege provided by New Jersey Shield Law), aff’d, No. Civ. 99-3370 (JBS), 2003 WL 23164082 (D.N.J. Apr. 10, 2003).
The Fourth Circuit constitutional privilege is applicable to libel and non-libel cases. The circuit’s three-part balancing test originated in a defamation case. LaRouche, 780 F.2d at 1139. In at least one regard, the privilege seems stronger in libel cases than otherwise: Where a libel defendant concedes the authenticity of the allegedly libelous statement, the court has been inclined not to require disclosure of unpublished information surrounding the alleged libel. In both Church of Scientology and Penland, the courts reasoned that since the statement being sued upon was public, notes on the published statement were not sufficiently relevant and the need for disclosure not sufficiently compelling. Church of Scientology, 992 F.2d at 1329; Penland, 922 F. Supp. at 1084. Where the statement being sued upon was not public but made only to a reporter during an interview, a district court found that, in order for the court to consider the defamatory statement in the context in which spoken, the reporter’s interview notes with the speaker, but no others, must be disclosed. Gilbertson v. Jones, 2016 WL 6518659, *3-6 (E.D. Va. Sept. 22, 2016); 2016 WL 6518631 (E.D. Va. Nov. 1, 2016) (order adopting report and recommendation).
The application of a qualified reporter’s privilege in a defamation action over disclosure of confidential sources and unpublished notes was addressed in two related orders of the same case: Hatfill v. N.Y. Times Co., 459 F. Supp. 2d 462 (E.D. Va. 2006) and Hatfill v. New York Times Co., 242 F.R.D. 353 (E.D. Va. 2006) (“Hatfill I” and “Hatfill II” respectively). In Hatfill I the reporter’s privilege did not bar compelled disclosure of a newspaper columnist’s confidential sources in an action against the columnist and the newspaper. The columnist published information alleging the plaintiff was involved in anthrax attacks that killed five people. Hatfill, 459 F. Supp. 2d at 464. Having promised confidentiality, the columnist refused to reveal his sources. Id. The plaintiff sought to compel disclosure of the identities of the sources to develop evidence of their lack of reliability. Id. After consideration of the LaRouche factors, the court concluded that the balance tipped in favor of disclosure. Id. at 467. The information needed to ascertain the reporter’s state of mind and verify certain statements was not available by means other than compelled disclosure; this was a sufficiently compelling interest in the information. Id.
In Hatfill II, the reporter’s privilege protected from disclosure a reporter’s unpublished notes related to his investigation of the anthrax attacks. Hatfill, 242 F.R.D. at 355. The reporter and the newspaper columnist, whose confidential sources were ordered disclosed in Hatfill I, shared and edited common work product as the columnist drafted his column. Id. However, the columnist was never directly privy to the reporter’s extensive investigative notes. Id. The Court applied the LaRouche factors to the unpublished notes and found that because the confidentiality of the notes was maintained and the columnist never viewed them, there was no evidence that they were relevant to the columnist’s state of mind and, thus, could not have a bearing on the actionability of the alleged defamatory statements. Id. at 356. Therefore, even though the notes were unavailable by any alternate means, no compelling need was demonstrated and disclosure was not required. Id. at 357-358.
There is no explicit "libel exception" precluding the application of the privilege. Indeed, Miller v. Transamerican Press, Inc., 621 F.2d 721, as modified, 628 F.2d 932 (5th Cir. 1980), the leading case adopting the qualified privilege in the Fifth Circuit, was a libel case against the media.
In Miller, the court considered a libel suit against a magazine's editor and publisher as well as the corporation that published the magazine. The plaintiff, Miller, was a public figure, and accordingly faced the burden of demonstrating that the media defendants published with "actual malice," that is, with knowledge of the falsity of their publication or reckless disregard for its truth. Id. at 724. To help him meet that burden, Miller sought the identity of the confidential source of the allegedly defamatory passage. Id. at 723. The journalist asserted his reporter's privilege as a bar to identifying his confidential source. The court distinguished Branzburg v. Hayes, 408 U.S. 665 (1972), holding that the reporter's First Amendment interest in protecting his confidential sources in a libel case is stronger than in the context of a grand jury proceeding. Miller, 621 F.2d at 725. The Miller court also distinguished the Supreme Court's decision in Herbert v. Lando, 441 U.S. 153, 169-70 (1979), which had permitted discovery of the media's editorial process in a libel case in which a public figure had to prove actual malice, recognizing that a journalist's confidential sources enjoy greater First Amendment protection than a journalist's thought processes. Miller, 621 F.2d at 724-25.
Miller applied a three-part test to determine the scope of the qualified privilege not to reveal confidential source material: (1) is the information relevant; (2) can the information be obtained by alternative means, and (3) is there a compelling interest in the information? Id. at 726 (citing Garland v. Torre, 259 F.2d 545 (2d Cir. 1958)). On rehearing, the court supplemented its opinion, explaining that a plaintiff must present substantial evidence to overcome the privilege. Miller, 628 F.2d 932, 932 (5th Cir. 1980). Specifically, a plaintiff must provide "substantial evidence that the challenged statement was published and is both factually untrue and defamatory; that reasonable efforts to discover the information from alternative sources have been made and that no other reasonable source is available; and that knowledge of the identity of the informant is necessary to proper preparation and presentation of the case." Id. at 932.
Nevertheless, although Miller adopted the qualified reporter's privilege for libel cases in the Fifth Circuit, under the facts of that case the court held that the privilege did not protect the identity of the confidential informant, because the plaintiff could not prove actual malice except by examining the reliability of the journalist's confidential informant. Id. at 726.
No reported Fifth Circuit case addresses the question whether courts will assess different penalties -- such as instructing the jury to presume the reporter had no source, or presuming actual malice, or entering judgment against the media defendant -- for a reporter's failure to comply with compulsory process in libel cases.
Federal courts within the Sixth Circuit have granted summary judgment to libel defendants while refusing to require those libel defendants to disclose the identities of the confidential sources who had supplied the information alleged by the plaintiff to be false and defamatory. Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996); Schultz v. Reader's Digest Ass'n, 468 F. Supp. 551 (E.D. Mich. 1979).
Those courts have acknowledged that they would require a libel defendant to reveal a confidential source's identity if the plaintiff had produced concrete evidence demonstrating the central relevance of the source's identity to a legal and factual issue in the case. Where those circumstances exist, those courts apparently would not require the libel plaintiff to try to exhaust other means of learning the identity of the source, a requirement often recognized in non-libel contexts.
In defamation actions in which the plaintiff must demonstrate the defendant's malice, the reporters' privilege cannot be invoked. In Desai v. Hersh, 954 F.2d 1408 (7th Cir. 1992), the former Prime Minister of India brought a defamation action against Seymour Hersh. During the dispute, the plaintiff sought the identities of Hersh's sources for his book. When Hersh did not respond, plaintiff sought an order precluding the author from referring to his unidentified sources. In denying the plaintiff's motion, the trial court relied on the Illinois Reporter’s Privilege Law. On appeal, the Court of Appeals held that the trial court had committed error by treating the privilege as absolute. Id. at 1412. The court said that the district court eliminated the plaintiff's ability to test the reliability or existence of the author's unnamed sources. See also Liebhard v. Square D Co., No. 91 C 1103, 1992 WL 193558, at *3 (N.D. Ill. August 4, 1992) (agreeing, in dicta, with Desai).
The Eighth Circuit's decision in Cervantes involved a defamation action. The Cervantes court held that it was proper to grant summary judgment for the defendant in a defamation case even though the court had not resolved the plaintiff's motion to compel testimony from a reporter claiming privilege. The court said that lower courts should not be forced to breach reporter confidentiality before passing on the merits of the case in the context of summary judgment.
A later decision from the Western District of Arkansas, however, states that: "the newsman's privilege, . . whether based upon common law or the First Amendment, must give way, even as to confidential sources, in a libel case where such is necessary to establish actual malice or reckless disregard of the truth on a given Defendant's part." Williams v. ABC Inc., 96 F.R.D. 658, 665 (W.D. Ark. 1983).
Within the Ninth Circuit, “[i]n the context of a civil libel action brought by a public figure plaintiff, courts have noted that the balance shifts somewhat more in favor of disclosure when the privilege is asserted by a media defendant.” Dangerfield, 817 F. Supp. at 836. This is because “[t]he plaintiff faces a heavy burden to prove that the defendant acted with ‘actual malice’ by publishing the material knowing it was false or with reckless disregard of whether it was false,” and “[i]n certain situations, the identity of a reporter’s sources may be essential to prove this element.” Id. Even so, “compelled disclosure by a journalist should be a last resort in keeping with the First Amendment requirement to show a compelling interest.” Id.
The factors that a court considers in determining whether the reporter’s privilege applies in a defamation action have been articulated several different ways, all similar. Dangerfield, for instance, stated that “[t]he factors considered fall into three categories: (1) the litigant’s need for the information sought—does it go to the heart of the plaintiff’s claim; (2) the availability of alternative sources for the information; and (3) the plaintiff’s showing that the claim is not frivolous or without merit.” 817 F. Supp. at 836-37. Earlier, in DeRoburt v. Gannett Co., Inc., a court looked at: “First and foremost, is the information sought a ‘critical element’ of the plaintiff’s cause of action?; does it ‘go to the heart’ of the plaintiff’s case? Second, has the plaintiff ‘demonstrated specific need’ for the evidence?; is the information otherwise not reasonably available to him? Third, has the plaintiff made a showing that his claim is not ‘without merit’?” 507 F. Supp. 880, 886 (D. Haw. 1981). Finally, in Shoen II, also a libel case, the court explained that “a civil litigant is entitled to requested discovery notwithstanding a valid assertion of the journalist’s privilege by a nonparty only upon a showing that the requested material is: (1) unavailable despite exhaustion of all reasonable alternative sources; (2) noncumulative; and (3) clearly relevant to an important issue in the case.” 48 F.3d at 416.
Some federal courts examining libel and defamation actions have applied state law to evaluate whether a privilege should apply. See, e.g., Rogers, 73 F. Supp. 2d at 1142-43 (applying the Mitchell test to determine that California’s qualified reporter’s privilege had not been overcome); Newton v. Nat’l Broad. Co., Inc., 109 F.R.D. 522, 527, 530 (D. Nev. 1985) (determining that the federal privilege would be overridden in this case but that the state shield law applied, despite that it “may significantly impair Plaintiff’s ability to meet his burden of proving ‘actual malice’”).
There are no cases in Arkansas that discuss whether failing to disclose a confidential source in the context of a defamation case subjects the non-compliant reporter or the reporter's news organization (when the organization is a party) to a greater punishment than defamation. Failure to testify upon service of a subpoena is considered contempt of court. Ark. R. Civ. P. 45(g). Sanctions for that failure are within the discretion of the trial court.
The statute's language contemplates that the privilege will not apply in any case, defamation or otherwise, in which the party seeking disclosure makes the requisite showing that the article was written in bad faith, with malice, and not in the interest of the public welfare.
There is no citable statute or case law addressing the issue of whether the application of the privilege in defamation actions is treated differently than in other types of cases. At least one unpublished decision from the Court of Appeal suggests that trial courts may require defamation plaintiffs to make a prima facie showing of falsity in accordance with Mitchell v. Superior Court, 37 Cal. 3d 268, 690 P.2d 625, 208 Cal. Rptr. 152 (1984), before requiring newsperson defendants to respond to discovery requests. Bohl v. Pryke, 35 Media L. Rep.2189, 2007 WL 1301006 (Cal. Ct. App. May 4, 2007) (unpub. dec.).
In Bohl, the trial court found that the publisher defendant “could not hide behind the California reporter’s shield law”; after ordering the defendant to respond to discovery requests seeking unpublished information, the trial court issued a terminating sanction (and judgment in plaintiff’s favor) because defendant failed to respond quickly enough. Id. at *2. The Court of Appeal held that this was an abuse of the trial court’s discretion. Id. at *7-8. The court explained that the publisher defendant “had a legitimate argument as to why he was not required to reveal the information, namely, the California reporter’s shield law.” Id. at *8. Because the trial court required plaintiffs to make a Mitchell prima facie showing before ordering the publisher to respond, and because the trial court still had not ruled on the publisher’s SLAPP motion, the defendant publisher was justified in refusing to disclose his source. Id. at *7. The Court of Appeal went on to note that “[a]lthough [p]laintiffs would characterize [publisher defendant’s] actions as brazen violations of the court’s discovery order, there is a strong argument that they amounted to no more than the use of legitimate means for a reporter to protect his or her sources.” Id. at *8.
Section 13-90-119(5) governs cases where the newsperson is a party to the proceeding, i.e., defamation and privacy suits, and prevents the jury from being informed that the newsperson has exercised the privilege.
This issue was addressed in Gordon v. Boyles, 9 P.3d 1106 (Colo. 2000). In Gordon, a radio talk show host was sued for statements made on the air about an alleged altercation outside a bar involving two off-duty police officers. The host invoked the privilege when asked who he had relied upon in gathering and verifying his information. The Supreme Court found that, when a newsperson is sued for defamation and relies upon a confidential source as a basis for a defense that the statements were not published with actual malice, the newsperson will not be compelled to disclose the identity of the confidential source unless the defamation plaintiff demonstrates the probable falsity of the defendant's statements. If the court agrees that, based on the evidence, the three factors listed in § 13-90-119(3) have been established, including a determination that the evidence available at the time of the allegedly defamatory broadcasts demonstrated the probable falsity of the defendant's statement, the source must be revealed.
As a consequence, under Gordon, where a newsperson defendant can provide evidence that a confidential source's information was probably truthful, the court should not order the newsperson to disclose the source's identity. Although the statute, on its face, extends equal protection against disclosure of confidential source information and any other unreported news information, the Tenth Circuit Court of Appeals has held that the defamation plaintiff’s burden to show “probable falsity” applies only to cases involving confidential sources. Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1143 (10th Cir. 2014). This ruling is not binding in Colorado state courts.
As with news information, the Shield Law may protect information about the editorial process if it is not directly relevant. Colorado courts have not specifically addressed the discoverability of editorial processes; however, Colorado courts will likely follow the rationale of Herbert v. Lando, 441 U.S. 153 (1979). See Burns v. McGraw-Hill Broadcasting Co., 659 P.2d 1351, 1365 (Colo. 1983).
As an aside, the court in Gordon held that, where the newsperson is a party to the case, a subpoena is not required. Gordon, 9 P.3d at 1117, n. 13.
Even in defamation cases involving a media defendant, the Circuit’s general balancing test should be used to determine whether the reporter’s privilege bars the compelled disclosure of sources or other information. Zerilli v. Smith, 656 F.2d 705, 714 (D.C. Cir. 1981) (“disclosure is by no means automatic in libel cases”). Thus, a defamation plaintiff, as in any other case, must show the relevance of the sources’ identities to the plaintiff’s case—particularly as it affects plaintiff’s burden of proof—as well as the absence of alternative means of obtaining the information or the exhaustion of every reasonable alternative source of information. Dowd v. Calabrese, 577 F. Supp. 238, 244 (D.D.C. 1983). If the plaintiff fails to satisfy this burden, the privilege will prevail.
The privilege, however, may not be used as a sword and a shield: The courts will not permit a journalist-defendant to use the existence of unidentified sources as evidence of truth or lack of actual malice. Id. at 244. By contrast, if the disclosure would go only to a facet of the case that would, at most, involve a collateral matter, and result in cumulative evidence undermining the reporter’s credibility, the privilege will prevail. E.g., Liberty Lobby, Inc. v. Rees, 111 F.R.D. 19, 22 (D.D.C. 1986); Dowd, 577 F. Supp. 238. Mere speculation that a source does not exist or will say the reporter published inaccurate information is not sufficient to overcome the privilege. Liberty Lobby, 111 F.R.D. at 22 n.3; Dowd, 577 F. Supp. at 241. Conversely, if the unidentified source is the basis for the statement at the heart of the libel action, i.e., the only source of the story, the equities generally weigh in favor of disclosure. Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974) (privilege overcome because identity of source was central to plaintiff’s proof); Liberty Lobby, 111 F.R.D. at 21; Dowd, 577 F. Supp. at 243 n.17.
District of Columbia
The District’s shield law applies in defamation actions as it does in any other action. Prentice v. McPhilemy, 27 Med. L. Rptr. 2377 (D.C. Super. Ct. 1999). In Prentice, the D.C. Superior Court noted that nothing in the plain language of the Free Flow of Information Act or its legislative history suggests that the D.C. Council intended to carve out an exception to the Act’s coverage for libel defendants. The court noted that, in its official report, the Council’s Judiciary Committee recognized that “[t]wenty-eight states have adopted report shield laws, with varying degrees of qualified and absolute immunity from disclosure of sources and/or disclosure of information.” Id. at 2383 (citation omitted). Based on this language, the court reasoned the Council was well aware that some states had enacted statutes limiting the protection afforded to libel defendants. Id. Consequently, the court determined that the absence of such a provision in the District’s shield law demonstrated an intent by the Council not to exempt defamation cases or libel defendants from the Act’s scope. Id.; cf. Braden v. News World Commc’ns, Inc., 18 Med. L. Rptr. 2040 (D.C. Super. Ct. 1991) (holding, prior to passage of the Free Flow of Information Act, that libel plaintiff could not compel a newspaper’s disclosure of source where plaintiff had not exhausted all alternative sources for such information).
As a general rule, the privilege operates no differently in defamation actions than it does in any other. There is no "libel exception" that operates to preclude the invocation of a journalist's privilege in a libel action, whether or not the journalist is a party, and the three-part test applies. See, e.g., Fancher v. Lee Co. Humane Society Inc., 27 Media L. Rep. 1447 (Fla. Cir. Ct. Dec. 14, 1998) (applying three-part test to quash subpoena to non-party journalist in defamation case); Gadsden County Times, Inc. v. Horne, 426 So. 2d 1234, 1242 (Fla. 1st DCA 1983) (same); Overstreet v. Neighbor, 9 Media L. Rep. 2255, 2256 (Fla. 13th Cir. Ct. Sept. 13, 1983) (privilege sustained in defamation action because subpoenaing parties failed to demonstrate that they had exhausted alternative sources for the information); Coira v. Depoo Hosp., 4 Media L. Rep. 1692, 1593 (Fla. 16th Cir. Ct. Nov. 6, 1978) (upholding privilege in libel action against doctors who were featured in newspaper article).
Further, penalties for noncompliance with a subpoena in a libel case are no different than the general penalties for noncompliance that operate in all cases. There is no added threat of "presumed malice" based on noncompliance with a subpoena in a defamation case.
Georgia's statutory privilege does not apply in cases where a reporter is a party, but other provisions of Georgia law afford protection to reporters. In Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808, 813 (2001), cert. denied. 2002 Ga. Lexis 103 (2002), cert. denied, 537 U.S. 814 (2002), the Georgia Court of Appeals held that although a newspaper could not invoke Georgia's statutory privilege in requesting protection for its confidential sources in discovery, it could invoke the protection afforded by Georgia law against sensitive discovery of any sort. Based on the longstanding protection Georgia courts have afforded to sensitive information, the Court of Appeals reversed the trial court and required it to take significant protective measures with respect to confidential sources:
To properly perform this balancing test in a libel case, the trial court must require the plaintiff to specifically identify each and every purported statement he asserts was libelous, determine whether the plaintiff can prove the statements were untrue, taking into account all the other available evidentiary sources, including the plaintiff's own admissions, and determine whether the statements can be proven false through the use of other evidence, thus eliminating the plaintiff's necessity for the requested discovery. In other words, if [plaintiff] cannot succeed on a specific allegation of libel as a matter of law, or if [plaintiff] is able to prove his specific allegation through the use of available alternative means, then the trial court's balancing test should favor nondisclosure of confidential sources. If, on the other hand, a specific allegation of libel is determined to be legally viable, or if it cannot be determined whether the allegation is legally viable given the current state of the record, and if the identity of the sources either is relevant and material in and of itself or is the only available avenue to other admissible evidence, then the trial court's balancing test should favor disclosure of the confidential sources.
251 Ga. App. at 813. Performing the balancing test set forth by the Court of Appeals on remand, the trial court properly declined to compel the newspaper's confidential sources. Bryant v. Cox Enterprises, 311 Ga. App. 230 (2011) (affirming summary judgment for newspaper), cert. denied, 2012 Ga. LEXIS 37 (2012).
In DeRoburt v. Gannett Co., 507 F. Supp. 880 (D. Haw. 1981), a libel action brought by a public official against a newspaper, the court held that a reporter's refusal to disclose the identities of his sources for the news stories that were the subject of the lawsuit would lead to a presumption that the defendant had no source. This is a particularly damaging presumption because one of the elements of liability in a defamation action filed by a public official or figure is "actual malice," which could be established by proof that the reporter had no reliable sources. New York Times v. Sullivan, 376 U.S. 254 (1964); Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974).
See discussion in paragraph III, H above. In defamation actions, substantive and negative consequences may result from a decision by a reporter or media entity to stand on principle and refuse to disclose sources or information, even if the privilege is determined to be unavailable or, after balancing, determined to give way to a greater interest served by disclosure. In Sierra Life, the trial court entered default against the media defendants on all liability issues--including those of falsity, malice and causation on which the plaintiff had the burden of proof – leaving only the issue of the amount of damages for trial. The default was entered as a sanction for the media defendants' refusal to answer discovery seeking the identity of confidential sources consulted in the preparation of newspaper articles about the plaintiff insurance company.
On appeal, the Idaho Supreme Court reversed and remanded with instructions for the trial court to consider more carefully the arguments of the media defendants that the identity of the sources was irrelevant because the articles were truthful and because the confidential sources had not provided any information actually used in the news stories. The court held that a dispute over discovery into confidential sources should not, by itself, preclude the trial court from considering an otherwise dispositive motion that did not depend upon the discovery of the confidential sources:
"Finally we consider the newspaper’s contention of error on the part of the trial court in tabling the newspaper's motion for summary judgment. If it is determined that there is no triable issue of fact as to any issue upon which the newspaper as a matter of law would be entitled to prevail, and such is an issue the proof of which is essential to Sierra's case, the motion should be granted even though factual dispute on some other issue might otherwise prevent the entry of judgment."
Sierra Life, 101 Idaho at 801, 623 P.2d at 109.
Significantly, the Sierra Life court stopped short of holding that the trial court's entry of default against the media defendants was improper regardless of the pending dispositive motion based on truth. Instead, the decision generally endorsed the concept that the trial court has discretion to impose sanctions for discovery abuse, which can include the imposition of a default judgment in some settings. Sierra Life, 101 Idaho at 799-801, 623 P.2d at 107-109.
In Illinois, the test for divesting a reporter of the privilege under the Statute differs slightly when the request arises in the course of a lawsuit for libel or slander than when the request arises in other actions. For example, in libel or slander cases, only a plaintiff may apply to the court for an order seeking privileged information from a reporter. In contrast, any person or party, body or officer, may apply to the court in any other type of action. 735 ILCS 5/8-903(b). The chief difference lies in the proof the movant must adduce concerning any “public interest” at stake in the proceedings. In a libel or slander action, the movant must convince the court that the public’s “need for disclosure of the information sought outweighs the public interest in protecting the confidentiality of sources of information used by a reporter.” 735 ILCS 5/8-907(2). In all other actions, the movant must demonstrate that “disclosure of the information sought is essential only to the protection of the public interest involved.” 735 ILCS 5/8-907(2).
For libel and slander actions involving an underlying claim of defamation, the Statute directs a party seeking access to privileged information to make a prima facie showing of defamation, and to demonstrate the necessity for disclosure of the privileged information. 735 ILCS 5/8-904. A libel or slander plaintiff must submit an application to the court that alleges falsity of the defamatory statements, and actual harm or injury due to the alleged defamation. The Seventh Circuit has stated in dicta that in cases where the plaintiff must prove actual malice, “ordinarily the reporter’s privilege must give way to disclosure.” Desai v. Hersh, 954 F.2d 1408, 1412 (7th Cir. 1992). While in Desai, plaintiff did not seek divestiture, and waived objection to the reporter testifying about his confidential sources without revealing their identity, the court made clear that admitting such testimony would be error. See id. (“by allowing Hersh to utilize reporters privilege and then permitting Hersh to vouch for the unnamed sources the district court virtually eliminated [plaintiff’s] ability to test the reliability — or even existence — of Hersh’s sources” and “in effect, treated the privilege as absolute . . . granting an absolute privilege to journalists to maintain the confidentiality of their sources in a libel case is neither required or authorized”) (citing Herbert v. Lando, 441 U.S. 153, 170, 99 S.Ct. 1635, 1645 (1979)). Compare Salamone v. Hollinger Intern., Inc., 347 Ill.App.3d 837, 842, 807 N.E.2d 1086, 1091 (2004) (innocently construing phrase “reputed organized crime figure” in defamation case, court comments that the “obvious question: ‘Reputed by whom?’ is easily deflected by the statutory privilege that protects a journalist from revealing his sources”).
Another difference lies in the application of the “relevance” prong of the Statute. In all cases, Section 8-904 of the Statute requires the party seeking to divest the reporter of the privilege to demonstrate the relevancy of the privileged information to the “proceedings.” 735 ILCS 5/8-904. Courts have interpreted the relevance standard more leniently in libel and slander cases because such privileged information is often the basis of the suit.
The Indiana shield law does not make any special provisions for libel actions. The shield law applies “in any legal proceedings or elsewhere.” Ind. Code § 34-46-4-2. Jamerson v. Anderson Newspapers, Inc., 469 N.E.2d 1243 (Ind. App. 1984), is the only reported opinion about the shield law in which the media was sued for libel. There, the court rejected the plaintiff’s argument that the shield law violated Article I, section 12 of the Indiana Constitution, which guarantees a remedy for injury to reputation. Id. at 1249–50.
Iowa has no "libel exception" to reporter's privilege, but in defamation actions where the reporter is a party, the reporter's privilege presumption is likely to be rebutted. Lamberto, 326 N.W.2d at 307. In Lamberto, the Court stated that that "in civil cases where a reporter asserting the privilege is a party to the lawsuit and his actions, motivations or thought processes are integral elements of the claim, disclosure is often compelled. The most notable examples are libel cases." Id. Thus, it is anticipated that the Iowa court would utilize a Herbert v. Lando, 441 U.S. 153, 4 Med. L. Rptr. 2575 (1979), analysis in determining that the reporter's privilege afforded by the Iowa constitution would yield to an actual malice libel case against the journalist. See Nelle, 2017 WL 7049237, at * 2-3. No reported decision discusses the sanctions that would be imposed for failure to disclose privileged information in a libel suit.
Miller held that the reporter's privilege is not absolute and may have to yield in the context of a libel case. The court also found, however, a greater interest in protecting the confidentiality of journalists' sources in libel cases than in a grand jury context. Miller, 621 F.2d at 725. To overcome the privilege in a libel case, the party seeking disclosure of a confidential informant's identity must establish by "substantial evidence that the statement attributed to the informant was published and is both factually untrue and defamatory; that reasonable efforts have been made to learn the identity of the reporter's informant by alternative means; that no other reasonable means is available; and that knowledge of the identity of the informant is necessary to proper preparation and presentation of the case." Selcraig, 705 F.2d at 792.
According to the Louisiana shield law, if the reporter's privilege is claimed in a defamation suit, the burden of proof remains with the reporter or news media to assert and sustain a legal defense of good faith. La. R.S. 45:1454. The defense of "good faith" arises in the context of the assertion of a "qualified privilege" in cases in which the defendant has an interest or duty in communicating with another person with a corresponding interest or duty. Kennedy v. Sheriff of East Baton Rouge, 935 So.2d 669 681 (La. 2006). In such cases, the plaintiff bears the burden of proof to establish abuse of the qualified privilege, i.e., that the allegedly defamatory statements "were made with reckless disregard for whether they were true or false. Id. at 683, 688. Thus, La. R.S. 45:1454, which states that the burden of proof "shall be on the reporter or news media," appears to clash with the latest state Supreme Court decision concerning the good faith defense.
Maine's courts have not addressed whether there is a "libel exception" (and thus no privilege). There are no cases where a court has allowed entry of judgment against a media defendant, or instructed the jury that it should presume that there was no source, or declared a presumption of actual malice based on the media's assertion of a privilege and unwillingness to produce sources or protected information.
The same balancing is required to determine whether a reporter's sources are protected in a libel case as in other cases. In a libel case in which the media is a party, disclosure will most likely be compelled. See Dow Jones & Co. v. Superior Court, 303 N.E.2d 847 (Mass. 1973); Ayash v. Dana-Farber Institute, 443 Mass. 367 (Mass. 2005).
However, this is not always the case. See Wojcik v. Boston Herald, 803 N.E.2d 1261 (Mass. App. 2003). In Wojcik, Court did not compel disclosure of the identities of confidential sources in a libel action where "the identities of the sources [were] largely irrelevant to [the plaintiff's] defamation claim." Wojcik, 803 N.E.2d at 1266.
In other cases, application of the privilege depends on the outcome of the balancing test. See Ayash v. Dana-Farber Institute, 706 N.E.2d 316 (Mass. App. 1999); Ayash v. Dana-Farber Institute, 30 Media L. Rep. 1825 (Mass. Super. Ct. 2001); Astra USA, Inc. v. Bildman, 13 Mass. L. Rep. 300 (Mass. 2001); Hanify v. Jacobs, News Media and the Law, June-July 1982, p. 35 (Mass. Super. Ct. 1982); Summit Technology, Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381 (D. Mass. 1992).
There are no reported cases in which the issue has arisen. Trial courts are open to the argument that the privilege should be the same regardless of the media's status as a defendant.
In a federal case, the trial court granted summary disposition and refused to allow the Plaintiff to obtain discovery of the libel defendant Southern Poverty Law Center as to its confidential informant.
Minn. Stat. § 595.025 subd. 1 expressly provides that the "prohibition of disclosure provided in section 595.023 shall not apply in any defamation action where the person seeking disclosure can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice." Subdivision 2 provides that "the identity of the source of information shall not be ordered disclosed unless the following conditions are met: (a) that there is probable cause to believe that the source has information clearly relevant to the issue of defamation; (b) that the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights."
The supreme court interpreted this exception in 2003, holding that a nonparty reporter had to disclose which defendants named in a libel action were confidential sources for an article he wrote about a high school football coach. Weinberger v. Maplewood Rev., 668 N.W.2d 667 (Minn. 2003). The court found that the coach had satisfied the three requirements of Minn. Stat. § 595.025. 668 N.W.2d at 672ñ73. The court stressed that the test of relevance is whether evidence has "any tendency" to make a consequential fact more or less probable. 668 N.W.2d at 673. Therefore, where
the plaintiff has alleged that the defendant is the source of the allegedly defamatory statements, relevant evidence constitutes not only evidence on the source's knowledge, but also the source's identity. . . . [W]hen the identity of the speaker is hidden under the cloak of anonymity . . . it is self-evident that the identity of the speaker will lead to relevant evidence on the issue of actual malice.
668 N.W.2d at 673ñ74. The court further held that the probable cause requirement was satisfied because the district court's narrow order only required disclosure of those sources named as defendants, thereby ensuring that disclosure would lead to relevant information. 668 N.W.2d at 674.
Although the supreme court did not explicitly discuss the reporter's nonparty status in Weinberger, other courts have suggested that a reporter's status as a nonparty weighs against compelling disclosure of confidential or unpublished information. See, e.g., Weinberger v. Maplewood Review, 648 N.W.2d 249, 258 (Minn. Ct. App. 2002), rev'd, 668 N.W.2d 667; Bauer v. Gannett Co., Inc. (KARE 11), 557 N.W.2d 608, 611 (Minn. Ct. App. 1997), overruled to the extent inconsistent with Weinberger, 668 N.W.2d 667. Whether courts will continue to consider this factor after Weinberger is unclear. See, e.g., Weinberger, 668 N.W.2d at 675, n.9 (overruling Bauer to the extent it was inconsistent with the court's holding, without discussing the nonparty status of the reporter and newspaper).
Neither the two opinions from the federal district courts of Mississippi nor the selected trial court orders involve a claim for defamation. In Brinston v. Dunn, however, the federal district court noted that "the Fifth Circuit recognized that journalists generally have a qualified privilege not to reveal the identity of a confidential source in a civil case but found that the privilege may be outweighed by necessity and relevance in a libel case." Brinston v. Dunn, 919 F. Supp. 240, 243 (S.D. Miss. 1996) (emphasis added) (referring to Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir. 1980)).
Please refer to relevant decisions from the Fifth Circuit Court of Appeals for guidance on how Mississippi courts may approach this issue.
Montana's law does not contain any "libel exception." The Sible case was a defamation action against a newspaper and its reporter. The Court held that the reporter waived the privilege as to his notes when he testified. The legislature subsequently changed the law to avoid that result.
The statute does not contain a "libel exception," and does not differentiate between libel cases and any other litigation. The express terms of the statute, however, do not address jury instructions or presumptions that no source exists, or presumptions of actual malice. The author believes the stated policies of the statute should prohibit adverse instructions or presumptions, but the issue has not been addressed by any Nebraska court. The author is aware of instances in which media defendants in libel cases have intentionally waived privilege protection in order to more vigorously defend against libel claims.
NRS 49.275 does not distinguish between libel cases and other cases. The Nevada Supreme Court, however, has held that "once a media litigant has invoked the protection of the news shield statute to resist discovery, the defendant may not later rely on the privileged information as a defense." Diaz v. Eighth Judicial District Court, 116 Nev. 88, 993 P.2d 50, 59 (2000). It has also held that "to the extent that a plaintiff in a defamation action is required to prove that a media litigant either knew that the published information was false or acted in reckless disregard of the truth, an assertion of the shield statute may result in discovery sanctions." Id. at n.6.
In Laxalt v. McClatchy, 116 F.R.D. 438 (D. Nev. 1987), the court explained that there was no exception to the privilege for defamation cases. Id. at 452. It also explained the consequences of invocation of the statute:
This is not to say, however, that all is bitter for the plaintiff. For if the defendants are allowed to invoke the Nevada reporter's privilege regarding their confidential sources, they must do so absolutely. Therefore, if the defendants choose to prove their defense through witnesses whose identities are protected by this order, the defendants will be deemed to have waived the privilege. If the defendants choose to call the confidential sources as witnesses at trial, the plaintiff will be able to probe in death as to their identity and credibility on cross-examination. In addition, if [a reporter] is questioned at trial regarding the sources for his articles, he may not respond that the information came from a 'reliable or confidential source.' Instead, if [the reporter] chooses to rely on the privilege at trial, he must do so absolutely. His responses to such a question would therefore have to be that he relies on his privilege as a reporter under Nevada law, and that he refuses to answer the question on that basis.
Id. (citations omitted).
In Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., the Court held that the First Circuit’s balancing test “applies to a trial court’s review of a petition seeking disclosure of an anonymous source from the press to ascertain the identity of a potential defendant in a defamation action.” But in Downing v. Monitor Publishing Co., Inc., 120 N.H. 383 (1980), the Court refused to apply the privilege in a case brought by a public official where the source was essential to the plaintiff’s claim.
The privilege cannot be pierced in defamation actions. The media may invoke the privilege against testimony or production of materials in a defamation action as in any other action. Maressa v. New Jersey Monthly, 89 N.J. 176 (1982). The reporter may waive the privilege, but a partial waiver is not construed to be a total waiver and publication of the allegedly defamatory materials does not constitute a waiver.
Under the New Jersey rules of evidence an adverse inference may not be drawn from the invocation of a privilege against testifying. Evidence Rule 532, NJSA 2A:84A-31.
Rule 11-514 does not explicitly address the privilege’s operation in libel cases. Cases predating the rule suggest that confidential sources and confidential information may well be deemed “crucial” to particular libel claims and undiscoverable from other sources. Rule 11-514(C)(3) NMRA; see, e.g., Marchiondo v. Brown, 98 N.M. 394, 399, 649 P.2d 462, 467 (1982) (“[S]ummary judgment for the [media] defendants was premature, in that it was rendered before the thoughts, editorial processes and other information in the exclusive control of the alleged defamer could be examined.”); Ammerman v. Hubbard Broadcasting, Inc., 91 N.M. 250, 258, 572 P.2d 1258, 1266 (Ct. App.) (court erred in ruling for libel defendant before permitting discovery concerning confidential sources, because “plaintiffs produced substantial evidence that there were strong reasons to doubt the veracity of the defense informants”), cert. denied, 91 N.M. 249, 572 P.2d 1257 (1977), cert. denied, 436 U.S. 906 (1978). But cf. Coronado Credit Union v. KOAT Television, Inc., 99 N.M. 233, 238-39 & n.2, 656 P.2d 896, 901-02 & n.2 (Ct. App. 1982) (libel defendant cannot simultaneously deny “actual malice” and refuse to identify confidential sources “[i]n the absence of a showing of privilege”).
In any event, a claim of privilege generally is not a proper subject of comment by the court or counsel, and “[n]o inference may be drawn” a privilege claim. Rule 11-513(A) NMRA. “Upon request, any party against whom the jury might draw an adverse inference from a claim of privilege is entitled to a jury instruction that no inference may be drawn from the claim of privilege.” Rule 11-513(C) NMRA.
Both the absolute and qualified reporters privileges apply in defamation actions where the reporter or newscaster is a defendant. See. e.g., Sands, 161 A.D.2d 30; Buffalo Courier Express Co., 85 A.D.2d 924 (pre-1990 case in which the court struck only those interrogatories pertaining to information obtained under promise of confidentiality and compelled reporter to answer single interrogatory concerning information obtained without a promise of confidentiality). The three-part test of the qualified privilege is more likely to be met in defamation actions and, more often than not, media defendants will want to rely on their newsgathering to support the truth (or lack of malice in publication) of the statements in issue.
Relying on the privilege in defamation actions may, however, subject a reporter to restrictions on his or her use of the privileged information, and, in some cases, may subject the reporter to sanctions other than contempt. While Civil Rights Law § 79-h(b), (c), and (e) protect journalists from contempt, fine or imprisonment, the language of § 79-h(c), concerning nonconfidential news, explicitly states that the statute "shall not affect the availability, under appropriate circumstances, of sanctions under section  of the civil practice law and rules." While this provision only applies with respect to the qualified privilege, the Court of Appeals has determined that some restrictions, while not technically sanctions under § 3126 of the CPLR, can be applied against a reporter who invokes the absolute privilege. See Oak Beach Inn Corp. v. Babylon Beacon, Inc., 62 N.Y.2d 158, 476 N.Y.S.2d 269 (1984) (holding that defendant newspaper could not rely on material withheld as absolutely privileged under the Shield Law to establish lack of malice), cert denied, 469 U.S. 1158 (1985). Defendant are thus precluded "from using as a sword the information which they are shielding from disclosure" by invoking the reporters privilege. Collins v. Troy Pub. Co. Inc., 213 A.D.2d 879, 881, 623 N.Y.S.2d 663, 665 (3d Dep't 1995) (quoting Sands v. News Am. Pub. Inc., 161 A.D.2d 30, 37, 560 N.Y.S.2d 416, 421 (1990)) (precluding the media defendant from relying on the privileged information to establish lack of malice in defamation action). See also, Greenberg v. CBS Inc., 69 A.D.2d 693, 419 N.Y.S.2d 988 (2d Dep't 1979) (defendants, having invoked privilege, could not rely on the unnamed source to establish truth or lack of malice).
However, the relief granted to the party whose discovery is thwarted by the Shield Law should not exceed what is necessary to protect his or her legitimate interests. To the extent that remedies, including striking of pleadings, undermine the purpose of the Shield Law and seek to coerce journalists to reveal privileged information, those remedies should not be available. See Babylon Beacon, Inc., 62 N.Y.2d 158 (striking of pleadings found improper); see also Yellon v. Lambert, 29 Med. L. Rptr. 1308, 1313 (N.Y. Sup. Ct. Suffolk County 2001), aff’d 289 A.D.2d 486, 735 N.Y.S.2d 592 (2d Dep't 2001) (refusing to limit media defendant's use of confidential information as long as plaintiff had not overcome privilege by demonstrating "that he ha[d] first endeavored to obtain this information by other means, and been unsuccessful."); Sands, 161 A.D.2d 30 (allowing magazine publisher to introduce evidence relating to the withheld information only if it was produced to the plaintiff at least ten days prior to trial). Guice-Mills, 12 Misc.3d at 857, 819 N.Y.S.2d at 436 (where defendant disclosed his source to a third party, the qualified privilege was waived "with respect to the limited information shared").
There are no North Carolina cases applying a defamation (or libel) "exception" to the reporter's privilege. The protection of the shield law is broad and covers all legal proceedings, even where the media is a defendant in a defamation action. However, the privilege only extends to information and documents obtained or prepared while a journalist is acting as a journalist, so it does not present the media with a shield against discovery generally. See N.C. Gen. Stat. § 8-53.11(b). Moreover, the privilege does not apply to a journalist's "eyewitness observations of . . . tortious conduct.” N.C. Gen. Stat. § 8-53.11(d).
North Dakota does not have a libel exception to the reporter's privilege. Accordingly, the court would probably consider the nature of the action when deciding whether nondisclosure would constitute a miscarriage of justice.
The governing statute on damages for defamation seriously limits the amount that a plaintiff can recover for defamation. In 1995, North Dakota passed the Uniform Correction or Clarification of Defamation Act, codified at N.D.C.C. Chapter 32-43. The legislation requires a plaintiff to make a timely and adequate request for correction and clarification from a defendant in order for the plaintiff to be able to claim damages other than pure economic loss. A good-faith attempt to request a correction or clarification must have been made within 90 days after a plaintiff learns of the publication, if the plaintiff is to be permitted to recover anything other than provable economic loss.
In a libel action, the court denied plaintiff's motion to compel disclosure of a newspaper reporter's documents that would reveal confidential sources because plaintiff failed to show that the information was relevant and material. Weiss v. Thomson Newspapers Inc., Licking C.P. No. 79-L-69231, 8 Med.L.Rptr. 1258 (Nov. 27, 1981).
Funeral home directors brought a defamation suit against a television station for broadcasting a story that reporters claimed was based on information from confidential sources. The court of appeals affirmed the trial court's ruling that reporters could refuse to answer questions that would tend to reveal sources. While plaintiffs claimed that the information was crucial for proving actual malice, the court recognized the privilege under the First Amendment and an absolute privilege in civil litigation under the shield law to protect confidential sources. House of Wheat v. Wright, 2d Dist. Montgomery No. 8614, 1985 WL 17381 (Oct. 10, 1985).
In a libel action brought by a mayor against a newspaper, a non-party publisher and editors from a different newspaper asserted protection under the shield law during depositions. The court ordered them to answer the questions even though the information sought was gathered in their professional news capacities because plaintiff asserted in good faith that the information would lead to admissible evidence on the issue of defendant newspaper's knowledge of falsity of the published statements. Stokes v. Lorain Journal Co., 26 Ohio Misc. 219, 266 N.E.2d 857 (Cuyahoga C.P. 1970).
The plaintiff moved to compel disclosure of outtakes and reporters' notes in a defamation action against a news station for broadcasting the arrest of plaintiff for drunk driving after which plaintiff was never charged. After in camera review of the material, the trial court granted plaintiff's motion to compel disclosure. The court of appeals declined to rule on the constitutional issues, finding that the determination of whether a qualified privilege existed depended upon a balancing of interest lying within the discretion of the trial court. Since no transcript existed of the in camera review, the court refused to find an abuse of discretion in the trial court's order to compel production of the material. Schreiber v. Multimedia of Ohio, Inc., 41 Ohio App. 3d 257, 535 N.E.2d 357 (1st Dist. 1987).
By the express terms of the statute, the privilege does not apply in a defamation action (whether or not the defendant is a member of the media) in circumstances in which the defendant relies for its defense on the source or content of the information claimed to be privileged. There are no reported cases interpreting the last paragraph of the privilege statute. Presumably, the defendant must either disclose the source of the published information or the content of related unpublished information if contending that it acted on a reasonable belief that the published information was true. For example, a defendant could not contend that it had a reasonable source for the allegedly defamatory information and yet refuse to disclose the identity of the source. However, it is not always clear whether a defendant is “assert[ing] a defense based on the content or source of such information.” We are aware of at least one case in federal court (applying Oklahoma law) in which the defendants obtained summary judgment in a defamation case without disclosing the identity of the confidential sources. In that case, the defendants were able to establish that the statements about which the plaintiff complained were either substantially true or protected expression of opinion. Those defenses were presented without relying on the identity of the confidential sources. There are no reported cases defining what sanction can be imposed for a refusal to disclose the source or content where the court has determined the information is not privileged.
In general, there is no “libel exception” in Pennsylvania under either the Shield Law or First Amendment privilege. However, the fact that a reporter or media entity is a defendant in a defamation action is considered in assessing whether the requested information is protected by the First Amendment privilege.
1. Shield Law
The leading Pennsylvania cases addressing the scope of the Shield Law in defamation cases are Hatchard, Sprague, Castellani, and Glanton.
The Pennsylvania Supreme Court in Hatchard considered two libel actions against a local television station that allegedly broadcast defamatory material about the plaintiffs. In one case, the plaintiff attempted to discover non-broadcast “out-takes” and in the other, the plaintiff sought documents available to the station at the time it broadcast its report. Hatchard v. Westinghouse Broad. Co., 532 A.2d 346, 347 (Pa. 1987). The Pennsylvania Supreme Court held the plaintiffs were entitled to the discovery. The court reasoned that the constitutional right of reputation would be compromised if a defendant reporter were permitted to assert the Shield Law with respect to all unpublished information in a defamation case. Id. at 349, 351. The court also held that the plaintiff could not obtain any outtakes that disclosed, or reasonably could lead to the disclosure of, confidential sources. Id. at 351.
In Castellani, a defamation case arising from a news report about the plaintiffs’ testimony before a grand jury, the Pennsylvania Supreme Court reaffirmed that Pennsylvania’s Shield Law “protects a newspaper’s source of information from compelled disclosure.” Castellani v. Scranton Times, L.P., 956 A.2d 937, 939 (Pa. 2008). The court declined to read a “crime-fraud” exception into the statute, explaining that “the news media [has] a right to report news, regardless of how the information was received.” Id. at 952.
When a media defendant invokes the Shield law’s protection in defamation cases, no adverse inference may be drawn, but neither can an inference of reliability or accuracy of information be drawn from the existence of an unidentified source. See Sprague v. Walter, 543 A.2d 1078, 1086 (Pa. 1988). As the Pennsylvania Supreme Court explained:
[T]he trial court in its instructions should make clear for the jury, (a) that the burden of proof remains upon the plaintiff throughout the trial; (b) that, if the Shield Law is invoked by the defendant to avoid disclosing a source, no inference either favorable or adverse may be drawn from the act of invoking that privilege as to the reliability of the unidentified source or as to the accuracy of the information supplied; and, (c) that the jury is to consider any evidence and/or arguments made by plaintiff and defendant as to the reliability of the undisclosed source and as to the accuracy of the information supplied.
Id. (citation omitted).
The Pennsylvania Superior Court has considered the Shield Law’s protection in a defamation action where the media entity is not a party. In Glanton, the plaintiffs subpoenaed The Philadelphia Inquirer for testimony and documents relating to an article that quoted one of the defendants as accusing the plaintiffs of, among other things, “thinly disguised racism.” Davis v. Glanton, 705 A.2d 879, 881-82 (Pa. Super. 1997). The plaintiffs sought the reporter’s notes, other unpublished materials, and any other materials received by the newspaper in preparing any article about the Barnes Foundation – where the defendant was a trustee, and about which the dispute emanated – in the five years before the article at issue was published. Id. at 883. The Superior Court held that the Shield Law did not protect the subpoenaed notes and unpublished material to the extent they could not “reasonably lead to the discovery of the identity of a confidential media-informant.” Id. 885. Relying on the heightened burden of plaintiffs in libel cases, the court held that there was “no reason . . . why the rationale of Hatchard is not equally applicable in cases where materials relevant to plaintiff’s burden are in the possession of a media entity which is not a party.” Id.
2. First Amendment privilege
In defamation cases, Pennsylvania courts apply the same analysis with respect to the First Amendment reporter’s privilege as in other contexts. The privilege, however, might be slightly weaker when the media is a party. As the Pennsylvania Supreme Court has noted, “the status of the media member as a party or non-party witness is relevant to the balancing inquiry,” explaining that Third Circuit precedent suggests “it should be more difficult to compel production from a non-party witness who has no personal interest in the matter.” Commonwealth v. Bowden, 576 Pa. 151, 175, 838 A.2d 740, 755 (2003) (citing Riley v. City of Chester, 612 F.2d 708, 716 (3d Cir. 1979).
Glanton was also a libel action, but the reporter’s privilege issues arose in the context of third-party discovery served on The Philadelphia Inquirer. The plaintiffs subpoenaed The Inquirer for testimony and documents relating to an article that quoted one of the defendants as accusing the plaintiffs of, among other things, “thinly disguised racism.” 705 A.2d at 881-82. The commissioners sought the reporter’s notes, other unpublished materials, and any other materials received by the newspaper in preparing any article about the Barnes Foundation – where the defendant was a trustee, and about which the dispute emanated – in the five years before the article at issue was published. See id. at 883. The Superior Court held that the plaintiffs overcame the privilege with respect to the reporter’s notes from the article at issue because (1) the notes were necessary to determine whether the potentially defamatory statements, which the defendant denied making, referred to the plaintiffs (or to someone else); (2) the reporter’s notes were the only memorialization of the interview; and (3) the reporter and one of the defendants were the only parties to the interview. See id. at 885. The Superior Court held that the First Amendment reporter’s privilege barred the plaintiffs from obtaining the other information they sought from the newspaper – that is, notes from any interviews with the defendants and any materials received by the newspaper in preparing other articles about the defendants – because such materials were not crucial to the plaintiffs’ case. See id. As the court explained, “plaintiffs must do more than demonstrate a mere possibility that a media entity possesses relevant information in order to overcome the First Amendment privilege.” Id. at 886.
The privilege is qualified with respect to defamation cases, in that it does not apply to the "source of any allegedly defamatory information in any case where the defendant, in a civil action for defamation, asserts a defense based on the source of the information." R.I. Gen. Laws § 9-19.1-3(b)(1).
The Rhode Island Supreme Court discussed the qualification of this privilege with respect to defamation cases in Giuliano v. Providence Journal Co., 704 A.2d 220 (R.I. 1997) and Lett v. Providence Journal Co., 703 A.2d 1125 (R.I. 1997). These defamation cases were instituted separately after the newspaper published articles about the two plaintiffs. The Superior Court ordered the newspaper to reveal the identity of several undisclosed confidential sources for the articles, and the newspaper appealed. In two nearly identical decisions, the Supreme Court remanded the Giuliano and Lett cases for further proceedings on the newspaper's use of these confidential sources. The Court was unable to determine, from the record on appeal, whether the newspaper was asserting the defense of a good faith belief in the truthfulness and accuracy of the information in the articles and whether such belief was based in part upon information from these confidential sources. The two cases were remanded for an evidentiary hearing on these issues and further proceedings.
Similarly, in Capuano v. Outlet Co., 579 A.2d 469 (R.I. 1990), the owners of waste collection and disposal companies brought an action against a television station that issued news reports stating that plaintiffs were connected with or members of organized crime. In answers to interrogatories, the television station pleaded a defense of good faith reliance "based on the confidential sources," yet it refused to disclose the identity of the confidential sources on which its defense of good faith reliance was based. Thus, the Court found that the television station brought itself within the precise terms of the exception of the Newsman's Privilege Act. The Court held that when a plaintiff is required to show by clear and convincing evidence that the defendant acted with actual malice, the plaintiffs must have the opportunity to examine the confidential sources on which the defendant relies. Id. at 476-477. The court cited with approval the conclusion of the Rhode Island District Court in Fischer v. McGowan, 585 F. Supp. 978 (D.R.I. 1984), that "where a defendant pleads a defense of good faith and further testifies that the [defamatory] article was based upon a reliable [confidential] source, the statutory privilege will be deemed to have been waived." Id., citing Fischer, supra, 585 F. Supp. at 988.
The Tennessee shield law contains an exception for defamation cases. Subsection (b) provides that the privilege "shall not apply with respect to the source of any allegedly defamatory information in any case where the defendant in a civil action for defamation asserts a defense based on the source of such information." Tenn. Code Ann. § 24-1-208(b); see Moman v. M.M. Corp., No. 02A01-9608-CV00182, 1997 WL 167210, at *2, 1997 Tenn. App. LEXIS 233 (Tenn. Ct. App. 1997). See also Funk v. Scripps Media, Inc., No. M2017-00256-COA-R3-CV, 2017 WL 5952914, 2017 Tenn. App. LEXIS 779 (Tenn. Ct. App. Nov. 30, 2017), appeal granted, 2018 Tenn. App. LEXIS 140 (Tenn. Mar. 15, 2018).
In Vermont, a plaintiff seeking to establish defamation must prove the existence of a statement made by the media that tends to lower him in the estimate of a “substantial respectable group” even though that group is associated with plaintiff or constitutes a minority sector of the community. Ryan v. Herald Ass’n., Inc., 152 Vt. 275, 284, 566 A.2d 1316, 1321, (Vt. 1989).
In Lent v. Huntoon, 143 Vt. 539, 470 A.2d 1162 (Vt. 1983), the Vermont Supreme Court set forth the six prima facie elements of a defamation claim: (1) a false and defamatory statement concerning another; (2) negligence or greater fault, in publishing the statement; (3) publication to at least one third-person; (4) lack of privilege in the publication; (5) special damages or no damages if written or actionable per se; and (6) actual harm sufficient to warrant compensatory damages. Id. at 546-47, 470 A.2d at 1167.
Vermont’s Rules of Civil Procedure do not permit pre-judgment attachments for libel or slander actions. V.R.C.P. 4.1(a). Accordingly, a plaintiff may not obtain an order freezing the assets, real property or bank accounts of a reporter or a media entity prior to the issuance of a defendant’s judgment or verdict in the plaintiff’s favor.
The privilege is treated no differently in defamation cases than it is treated in any other type of civil case. See Philip Morris Cos. v. Am. Broad. Co., 36 Va. Cir. 1 (Richmond 1994); Horne v. WTVR, LLC, 893 F.3d 201 (4th Cir. 2018) (affirming denial of a motion to compel disclosure of a confidential source in a defamation case); Church of Scientology Int’l v. Daniels, 992 F.2d 1329 (4th Cir. 1993) (upholding denial of motion to compel in a defamation case as to materials from an editorial board meeting); LaRouche v. Nat’l Broad. Co., 780 F.2d 1134 (4th Cir. 1986) (applying privilege to protect confidential sources in a defamation action); Gilbertson v. Jones, Civil No. 3:16cv255 (REP), 2016 WL 6518659 (E.D. Va. Sept. 22, 2016) (granting in part and denying in part a motion to quash a third-party subpoena to a television station in a defamation case); Hatfill v. N.Y. Times Co., 242 F.R.D. 353 (E.D. Va. 2006) (denying a motion to compel the production of reporter notes in a defamation action). There is arguably more protection in a civil context than in criminal cases.
Senear, discussed in Section H above, was a civil defamation action.
Section 1 of the shield statute, by its terms, applies to any proceeding in which there is a "body with the power to compel the news media to testify, produce, or otherwise disclose" the information covered by the statute. See RCW 5.68.010(1).
In West Virginia, there have been no cases addressing penalties for noncompliance in a libel case. From the Hudok case, it is known that a qualified privilege does exist in West Virginia, even in libel cases. See State ex rel. Lincoln Journal, Inc. v. Hustead, 228 W. Va. 17, 26, 716 S.E.2d 507, 516 (2011).Nevertheless, the reporter’s privilege in West Virginia is not as strong in defamation cases as in other civil claims. Stated another way, the burden a litigant must meet to overcome the reporter's privilege is less in cases where defamation or libel is alleged. Although the Hudok court did not delineate the boundaries of the privilege in the defamation context, it did cite to Zerilli v. Smith, which held that "in a libel action, 'the equities weigh somewhat more heavily in favor of disclosure.'" 389 S.E.2d at 192 (citing Zerilli, 656 F.2d at 714). In a footnote, the Hudok court observed the Zerilli court's additional discussion of the weight toward disclosure to be, "particularly true in libel cases involving public officials or public figures where the rule of New York Times Co. v. Sullivan, 376 U.S. 254 (1964), applies." 389 S.E.2d at 192 n.10.
The Hudok case further noted that "the United States Supreme Court in Herbert v. Lando, 441 U.S. 153 (1979), considered at some length the related question of the extent to which the plaintiff, a public figure, could, through discovery in a libel action, explore the motives and the editorial process of the press persons who had produced an alleged defamatory article." 389 S.E.2d at 192 n.10. Indeed, in Herbert, the United States Supreme Court rejected the argument that the press has an absolute privilege protecting it from inquiries into the editorial process in cases where a public figure has alleged malice. Nevertheless, the Herbert Court recognized that its holding was "not to say that the editorial discussions or exchanges have no constitutional protection from casual inquiry. There is no law that subjects the editorial process to private or official examination merely to satisfy curiosity or to serve some general end such as the public interest; and if there were, it would not survive constitutional scrutiny as the First Amendment is presently construed." 441 U.S. at 174.
Hudok was not a libel case, and it left the exact parameters of the qualified privilege in libel cases largely undefined. In State ex rel. Lincoln Journal, Inc. v. Hustead, 228 W. Va. 17, 26, 716 S.E.2d 507, 516 (2011), the West Virginia Supreme Court of Appeals applied Hudok in a defamation case and remanded the case back to the circuit court for a “specific Hudok hearing.”