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Reporter allowed to keep sources confidential in "irreverent" Trump biography

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  1. Protecting Sources and Materials
A New Jersey appellate court reversed a lower court decision Friday that would have required an ex-New York Times reporter…

A New Jersey appellate court reversed a lower court decision Friday that would have required an ex-New York Times reporter to name the confidential sources he used in a 2005 biography of Donald Trump.

Trump, who brought the lawsuit to the New Jersey Superior Court in January 2006, claimed biographer Timothy O’Brien defamed him and harmed his business interests when O’Brian called Trump a mere millionaire in TrumpNation: The Art of Being the Donald. Trump argued that his net worth is more than $1 billion.

In the lawsuit, Trump sought the names of the three confidential sources O’Brien quoted who placed Trump’s net worth between $150 million and $250 million – not even "remotely close to being a billionaire," wrote Judge Edith K. Payne.

O’Brien argued in a pre-trial motion that he promised the sources anonymity because they feared retribution by Trump.

 In his original ruling, New Jersey Superior Court Judge Irvin Snyder applied the New York Shield Law because the book in question was published in New York, but did so "narrowly," Judge Payne wrote. The lower court did not grant O’Brien the protection of the shield law because it held that the book was not news.   

In reversing the decision, Payne criticized the lower court’s determination that the biography fell into the realm of entertainment rather than news, thereby negating O’Brien’s source-protection privileges.

Payne wrote that the book should be protected under a shield law, despite having been written in a "breezy, irreverent style."

"Without doubt, details of the life of Trump, whether entertainingly reported or not, constitute matters of public interest and thus ‘news’ protected by the Shield Law," Payne wrote.

 In coming to this determination, the court recalled a line of cases interpreting New York’s misappropriation statute, which allows plaintiffs to sue for invasion of privacy when their name or image is misappropriated. The statute grants an exception, however, to newsworthy uses of a plaintiff’s name or image. Judge Payne cited numerous cases interpreting the definition of newsworthy to include “entertainment and amusement.”

In comparing the two claims, Payne wrote: “It would be illogical to determine that a book was of public interest when privacy rights are asserted, but not of public interest when Shield Law protections were invoked.” 

In her opinion, Payne made clear that books by investigative journalists should be protected under shield laws, pointing to a 1981 amendment to the shield law which was intended to "correct loopholes and fill gaps in the existing statute by protecting all professional journalists . . . engaged in the preparation of a news story intended for publication, broadcasting, or for other suitable professional dissemination to the public."

Payne continued: "We regard an author who obtains news in confidence for dissemination to the public through the medium of a published book as fitting within this definitional phrase."

Roughly 20 newsgathering and advocacy groups, including the Reporters Committee, filed a friend-of-the-court brief on behalf of O’Brien.