South Dakota high court recognizes reporters' privilege

South Dakota high court recognizes reporters’ privilege

11/06/95

SOUTH DAKOTA–The South Dakota Supreme Court in Pierre in mid-October for the first time recognized a qualified reporters’ privilege protecting journalists from forced disclosure of confidential sources in civil lawsuits.

The court held that a television news program did not have to reveal the anonymous sources that it relied on in a report about a judicial candidate’s past displays of public nudity and commitment to a mental hospital.

Before compelling a reporter to reveal a source, the court held, a trial court must consider whether: the reporter is a party to the case; the information goes to the heart of the lawsuit; the plaintiff has exhausted all alternative methods of obtaining the information; matters of public importance are at stake; and the statement made by the source was false.

The court ruled that Richard Hopewell, a former Sioux Falls attorney and one-time judicial candidate who sued KELO-TV for libel, failed to meet the five-factor test.

In late October 1990, the television station reported that at some time in 1978 Hopewell appeared naked at a pharmacy, attempted to rape an acquaintance’s wife, greeted churchgoers at a cathedral in the nude and was committed to a mental hospital. In a footnote, the court found that KELO’s report was “substantially true.”

The court found that a matter of great public importance was at stake because Hopewell was a judicial candidate. It also ruled that Hopewell had failed to exhaust alternative methods of identifying the sources. These considerations outweighed other factors, the court held, even though the media party asserting the privilege was a party to the case and the identity of the source was relevant to Hopewell’s efforts to prove that KELO acted with actual malice — knowledge or reckless disregard of falsity.

The court stated that its decision only applied to civil cases and observed that “in criminal proceedings, the interest of the public in law enforcement and the defendant in discovering exculpatory evidence may outweigh the journalist’s need for confidentiality.”

South Dakota is one of 21 states that does not have a shield law. (Hopewell v. Midcontinent Broadcasting Corporation; Media Counsel: Timothy Gebhart, Sioux Falls)