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Court should reject request to force journalist to disclose confidential source

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  1. Protecting Sources and Materials
Forcing a journalist to disclose his confidential source would have a chilling effect on investigative reporting, RCFP attorneys argue.
Photo of the Thurgood Marshall United States Courthouse, home to the U.S. District Court for the Southern District of New York

Update (May 27, 2o2o): Upon reconsideration of the Feb. 18, 2020, order, Magistrate Judge Aaron issued an opinion and order on April 14, 2020, adhering to the previous order denying Pishevar’s application for compelled disclosure of Baram’s source. After the time for filing notice of appeal expired, the case was closed on May 18, 2020.

Update (Feb. 20, 2020): Magistrate Judge Stewart D. Aaron issued an order on Feb. 18, 2020, denying Shervin Pishevar’s application for compelled disclosure of reporter Marcus Baram’s source. Citing the Reporters Committee’s amici brief, the judge noted the importance of protecting confidential sources and explained that the reporter’s privilege was not overcome in this case when Pishevar had other ways to find out the source of the forged police report.

Update: This blog post has been updated to note that a spokesperson for Shervin Pishevar confirmed in a statement to Fast Company that the investor had been briefly detained in May 2017 on suspicion of sexual assault.

The Reporters Committee for Freedom of the Press and the Media Legal Defence Initiative are urging a U.S. district court to reject a request from a U.S. investor to order the disclosure of a New York journalist’s confidential source.

In a friend-of-the-court brief, filed on Dec. 19, Reporters Committee attorneys argue that forcing Marcus Baram, a senior editor at Fast Company, “to identify his confidential source in this case, in circumvention of well-established legal protections for reporters’ sources and work product, will have a detrimental effect on the ability of the news media to investigate and report on matters of public interest now and in the future.”

The brief specifically cites the strong shield law enacted in New York, which “provides an absolute protection from forced disclosure of materials received in confidence, including the identity of a source,” and a qualified reporter’s privilege recognized by the U.S. Court of Appeals for the Second Circuit.

The legal dispute centers on a November 2017 article Baram published in Fast Company, a New York-based magazine that covers business and technology. The story reported that Shervin Pishevar, the co-founder of Sherpa Capital, had been briefly detained by police in May 2017 on suspicion of sexual assault, a fact confirmed by a Pishevar spokesperson in a statement to Fast Company.

In a sworn statement to the court explaining his reporting, Baram said that in September 2017 a confidential source provided him with a thumb drive containing an image that appeared to show a police report from the City of London Police about Pishevar’s arrest. Baram said he tried to verify the document’s authenticity with police officials and other sources. While police officials told him it did not appear to be authentic, they did not definitively say that it was fabricated.

The story Fast Company published on Nov. 8, 2017, referenced the police report, but it noted that the magazine had not verified the document’s authenticity. As Baram also noted in a court filing, the story left out “more unsavory contents of the report.”

A few days after the story was published, Fast Company received an email from Pishevar’s publicist that enclosed a letter from the City of London Police saying that the police report had been proven false. The magazine updated the story shortly thereafter with that detail. Baram also published a follow-up article reporting that the document cited in the initial story was not real.

It wasn’t until August 2019 that Pishevar petitioned the U.S. District Court for the Southern District of New York for what’s known as a section 1782 order authorizing him to conduct discovery from Fast Company related to Baram’s story citing the forged police report to use in contemplated foreign proceedings. (Pishevar said he is seeking the source’s identity as he considers pursuing civil or criminal proceedings in the United Kingdom.) The use of section 1782 in an attempt to force a U.S. reporter to disclose the identity of an anonymous source is rare.

After a judge granted the order, Fast Company produced certain information as part of discovery, but it refused to disclose the identity of Baram’s confidential source, citing reporter’s privilege. Pishevar filed a second petition on Oct. 31, seeking the same information from Baram.

In the brief, Reporters Committee attorneys stress the importance of protecting journalists’ confidential sources. They note how some of the most consequential news stories in recent memory were produced thanks in large part to sources who shared sensitive information with journalists on condition of anonymity because they feared retribution if their identities are revealed.

Those stories include the publication of troves of documents about Chinese internment camps unveiled by The New York Times and the International Consortium of Investigative Journalists, as well as the investigative reports about sexual assault that sparked the “#MeToo” movement.

If the court grants Pishevar’s request, Reporters Committee attorneys argue, it “would impair the ability of journalists to assure their sources confidentiality and anonymity, and significantly obstruct the flow of newsworthy information to the public.”

The brief also explains how 10 of the 12 federal appeals courts have recognized some form of reporter’s privilege under the First Amendment or common law. That’s in addition to legal protections that exist all but two U.S. states.

Reporters Committee attorneys argue that “this is exactly the type of case where U.S. courts should consider the strong domestic policies in favor of protecting reporter-source relationships and exercise their discretion to prevent harm to the public’s right to know.”

Read the Reporters Committee’s full brief.

The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.

Photo by TJ Bickerton