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Reporter’s statement must be 'probably false' to defeat privilege

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  1. Protecting Sources and Materials

    NMU         COLORADO         Confidentiality/Privilege         Sep 15, 2000    

Reporter’s statement must be ‘probably false’ to defeat privilege

  • The Colorado Supreme Court ruled that to overcome the reporter’s privilege against divulging sources in a libel trial, trial courts must determine whether the reporter’s statements were probably false.

When a newsperson stands accused of defamation, the trial judge must determine whether a defendant’s statements are “probably false” before the reporter’s privilege is overcome, the Colorado Supreme Court ruled on Sept. 12.

In a case calling on it to interpret the state’s Newsperson’s Privilege, the court ruled that even if the statement was probably false, a reporter can still protect the confidentiality of a source by “demonstrating that there was a reasonable basis to believe that a source’s information was true at the time it was reported.”

A reporter might satisfy this threshold by showing past reliance on the source or other indications of reliability, said Steve Zansberg, an attorney for Faegre & Benson, a Denver firm that filed a friend of the court brief in the case of radio talk show host Peter Boyles.

Boyles, of KHOW-AM, was accused of making defamatory statements about a Denver police officer, Bryan Gordon. Boyles broadcast that Gordon fought with another police officer over a woman. Boyles also said the Denver police covered up the incident because Gordon is the son of a high-ranking police official. Gordon sued Boyles and the corporate owner of the radio station.

Boyles, who relied on confidential sources for his information, refused to name those sources. District Court Judge Herbert Stern granted Gordon’s motion compelling Boyles to identify his sources. When Boyles continued to refuse to divulge specific names and other information as ordered, the district court judge held him in contempt and issued a $5,000 fine. In its decision, the state supreme court reversed the contempt order and remanded the case to the lower court for further fact finding.

In agreeing with the trial court’s interpretation of the privilege test, the state Supreme Court held that in order to defeat the newsperson’s privilege in a defamation case the plaintiff must meet the three-part statutory test. Under the third part of the test, the court must weigh whether the interest of the party seeking the information is stronger than the news media’s First Amendment interests. To tip the balance in his favor, the police officer would have had to prove the statements made by Boyles were probably false. However, the newsperson could maintain the privilege by showing that reliance on the source for information was reasonable.

“By doing so, the court will not dissuade reporters from relying on sources they believe are reliable because such discouragement would run counter to the interests protected by the First Amendment,” the court explained.

The court emphasized that “a trial court should compel disclosure only as a last resort when necessary to promote the effective administration of justice.”

(In re: Gordon; Media Counsel: Dan Satriana, Denver) DB

© 2000 The Reporters Committee for Freedom of the Press

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