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					Laura Bernheim
lb175804@ohio.edu
Mass Media Law Tutorial
June 9, 2005

Research Paper #2 – Confidentiality and the Media



  “Suppose a newsman or reporter should see the President of the United States or the
 Governor of the Commonwealth assassinated upon the street; or see a bank robbery in
 progress; or see a forcible rape committed. Under the construction of the statute sought
by the petitioner, such a reporter could not be compelled to identify the perpetrator of the
             crime. We do not think the legislature ever intended such a result”
                          (Branzburg v. Pound, 461 S.W. 2d 345).


       In the landmark case Branzburg v. Hayes, Louisville Courier-Journal reporter

Paul Branzburg used unnamed sources to describe a homemade hash lab in his Nov. 15,

1969 article “The Hash They Make Isn’t to Eat”. Local and federal narcotics agents

wanted to pursue the sources, in relation to their illegal drug practices. Branzburg was

subpoenaed before a grand jury, though he never showed. Instead, he moved to Michigan

out of the fear of prosecution. Kentucky’s reporter shield law says no journalist can be

forced to divulge to a grand jury the source of any information gathered for a news story.

The law enforcement officials, however, claimed the law should not protect reporters

who have observed people committing crimes. Both the Kentucky Appeals Court and the

U.S. Supreme Court maintained that reporters face the same duty as other citizens to help

a grand jury when asked about a criminal act. The First Amendment, in other words, does

not give newsmen any privilege against appearing before a grand jury and answering

questions as to either the identity of his sources or information he received in secret.

Journalists have no extra privilege to refuse to reveal the names of confidential sources or

other information when called upon to testify before a grand jury, according to the
Supreme Court. The three-part test provided by the dissenting justices, however, provides

the more-often used guidelines. They determined the government must be able to show:

there is probable cause to believe the reporter has information that is clearly relevant to a

specific violation of the law; the information sought cannot be obtained by alternative

means, and; the state has an overriding and compelling interest in the information (408

U.S. 665).

       The shield law in Kentucky extends protection to newspaper, radio, and television

broadcasting employees from being forced to reveal a confidential source, by saying in

part, “No person shall be compelled to disclose in any legal proceeding… the source of

any information procured or obtained by him, and published in a newspaper or by a radio

or television broadcasting station by which he is engaged or employed…” (KRS §

421.100). While it safeguards reporters from disclosing the source of the information, it

does not grant any such privilege against divulging the information itself, exemplified in

the Branzburg cases.

       The first case in Paul Branzburg’s rise to the Supreme Court, Branzburg v. Pound,

issued the decision later affirmed by all subsequent courts. J. Miles Pound, a judge at the

Jefferson County Circuit Court, summoned Branzburg to appear before a grand jury ten

days after his controversial article was published. After Branzburg refused to disclose the

identity of the men in his story, Pound ordered him to reappear before the grand jury, and

threatened with contempt penalties if he continued to refuse to answer the questions

given. The Kentucky Appeals court held that the state shield law granted a privilege from

disclosing the source of the information, but not the information itself. “In this case the

reporter learned that two men were engaged in the process of making hashish,” the court
record states. “Their identity, as well as the activity in which they were engaged, was a

part of the information obtained by him, but their identity was not the source of the

information. The actual source of the information was the reporter’s observation” (461

S.W. 2d 345). The court continued to reason that the informant who divulged to

Branzburg the time and place of the hashish making would be protected under the shield

statute. However, ruled the court, “this is a rare case where the informants actually

informed against themselves” (461 S.W. 2d 345).

       Branzburg v. Meigs, the second case involving Paul Branzburg arose out of a

second story published Jan. 10, 1971. The article described in detail the drug use and

drug culture present in Frankfurt, Kentucky, again using unnamed sources. Branzurg

spent two weeks interviewing several dozen drug users, even observing some of them

smoking marijuana (408 U.S. 665). Subpoenaed to appear before a Franklin County

grand jury on Jan. 18, 1971, Branzburg moved to quash the summons. The motion was

denied, but the court issued an order protecting him from revealing the identities of his

sources. The order, however, insisted Branzburg answer all questions pertaining to any

criminal act he observed. Branzburg continued to insist his First Amendment rights were

being infringed upon. However, said the court “It is important to keep in mind that the

issue is not the protection of the petitioner’s [Branzburg’s] source of information, since

those sources are protected by KRS 421.100. The only question here is whether,

conceding the right to protect sources of information, petitioner can be required even to

appear before the grand jury” (503 S.W. 2d 748).

       The Kentucky Supreme Court case Lexington Herald-Leader v. Beard applies the

state shield law to a libel case. Flossie C. Beard and twelve other former employees of the
University of Kentucky’s Tobacco and Health Institute sued the Lexington newspaper,

claiming the Herald-Leader published a series of articles pertaining to the Institute that

contained false and defamatory statements. Shortly after they filed suit in June 1981,

Beard and her former co-workers served a subpoena on three reporters responsible for the

articles, ordering them to produce all notes and materials gathered in the course of

researching and interviewing for the story. After a period of time when Beard and her

followers unsuccessfully searched for other options, the trial court upheld the subpoena,

but with limitations. The Herald-Leader was allowed to delete specific portions of the

notes submitted to the court. The paper filed an appeal, wanting to keep all their notes in

their possession. In March 1984, however, the Court of Appeals affirmed the trial court’s

ruling. Nine months later, Kentucky’s Supreme Court affirmed the two prior rulings as

well: “There can be no question but that the requested material is ‘surely relevant’… The

information in the possession of the newspaper at the time of publication is critical to

these issues” (690 S.W. 2d 374). The desires of the Herald-Leader to hold their notes in

strict privacy were not supported in the courtrooms, shield law, or by the First

Amendment.

       In Ohio, the shield law states that newspaper reporters are not required to reveal a

source of information. The scope of the protection granted is not as broad as in Kentucky,

where radio and television broadcasting station employees are given equal shelter. The

statute, however, asserts that the right to protect an informant’s identity is not absolute,

by saying: “Newspersons neither have an absolute First Amendment right nor an absolute

statutory right under the shield law, RC § 2739.12, to withhold the names of confidential

sources of information in criminal proceedings, whether before a grand jury, during pre-
trial discovery, or at trial. A newsperson’s right to protect the confidentiality of his

confidential sources is a qualified right” (RC § 2739.12). The statute further states that in

order to require a reporter to reveal his or her confidential information, the pursuer must

meet the three criteria presented in the Branzburg test: probable cause to believe the

reporter has information that is clearly relevant to a specific violation of the law; the

information sought cannot be obtained by alternative means, and; the state has an

overriding and compelling interest in the information.

       After applying the state shield statute, Ohio courts determined that a reporter

could not be required to reveal the date on which he received his confidential information

if it leads in discovering the source. On Nov. 1, 1998 the Akron Beacon Journal

published an article by Jon Craig, which used confidential documents from the Belmont

County Department of Human Services. The article indicated that the state and federal

government officials were conducting investigations into allegations of improper

Medicaid payments to several individuals. The State of Ohio, acting through a special

prosecutor, issued a subpoena ordering Craig to appear before an April 7, 1999 grand

jury. Through RC § 5101.27 (A), handing the records over to Craig was in itself a

criminal act (140 Ohio App. 3d 755). At the grand jury, Craig complied in producing the

documents for which the subpoena asked. He, however, steadfastly refused to answer

when he received the documents, maintaining that such a disclosure would lead to his

informant’s identity. “While the record is not entirely clear on the matter,” says the

appeals court, “it appears that the parties reached an agreement prior to the grand jury

hearing whereby Appellant [Craig] would not be required to specifically identify his

confidential informant” (140 Ohio App. 3d 755). As a result of this refusal, the trial court
found Craig in contempt of court and sentenced him to jail time. The Court of Appeals,

however, reversed the conviction, invoking the shield statute on behalf of Craig and his

informant.

       An appellate court in Ohio contrasted the shield law with the rights of a defendant

in a criminal proceeding. Cleveland Plain Dealer reporter Robert J. McAuley contended

he and his confidential sources were protected by Ohio’s shield statute, whereas John

Monica, a defendant in a criminal trial, maintained that the information was essential to

his testimony and right to a fair trial. A Cleveland gangster was shot and killed in Los

Angeles. His assailant admitted the killing and told law enforcement officials that he

acted on the orders of Monica. Nine years later, the Plain Dealer published a story that

stated the gangster’s killer had told law enforcement authorities in California that he was

hired to kill another gangster. McAuley wrote that Mafia chieftains – which Monica

maintained that he was not – ordered the gangster’s death (140 Ohio App. 3d 755). His

attorneys filed a request for McAuley to be named a material and necessary witness, thus

entitling Monica to the confidential information McAuley possessed. Monica asserted

that he did not order the killing of the Cleveland gangster, and was never a member of the

Mafia – the notes, names, and testimony McAuley could provide would be crucial in

proving his innocence. In September of 1978, a California judge granted the request.

McAuley was subpoenaed to appear before the Common Pleas Court of Cuyahoga

County, where he held that if he were required to divulge his sources, his career and the

public’s right to know would be utterly damaged. The trial court ruled that McAuley had

not been shown to be a material witness, and further, that he was entitled to the privilege

granted by shield laws in both California and Ohio. The Court of Appeals reaffirmed that
a newsperson does not have absolute right to protect their sources under either the First

Amendment or state shield laws; then similarly ruled that defendants do not have an

absolute right to obtain confidential information from a newsperson, affirming the trial

court’s decision.

        When faced with a situation where the reporter refused to answer any questions

posed to her, concerning only non-confidential material published and attributed to a

named source, the Ohio Court of Appeals for Trumbull County ruled that such a reporter

has no privilege under the shield law. Lisa Abraham, a reporter for the Tribune Chronicle

interviewed James P. Firenzo, the county engineer. Special Prosecutor Jonathan

Rosenbaum issued a subpoena for Abraham to testify before a grand jury as part of an

investigation of Firenzo. Abraham refused to answer any questions from Rosenbaum,

claiming she qualified for the protection granted by the state shield statute. She asserted

that Rosenbaum needed to meet the three-pronged test given in Branzburg. In November,

1993, the common pleas court determined that he did not have to meet the test, but “in

fairness and justice,” the court also ruled that the state did in fact meet all three criteria.

The court denied her request for a protective order, and found Abraham in contempt of

court. On appeal, the higher court affirmed the earlier ruling, maintaining that none of the

information being pursued was privileged or obtained from a source promised

confidentiality (92 Ohio App. 3d 186).

        In another case involving a non-confidential source, Fawley v. Quirk, it was held

that failure to disclose such a source resulted in a contempt of court conviction. Robert

Quirk, mayor of Cuyahoga Falls, fired Police Chief Gene Fawley in January 1982. A few

before the charges were filed and before Fawley received notice, a city employee gave a
copy of the document to Mary Grace Poidomani, a reporter for the Akron Beacon Jounal.

Fawley then sued Quirk claiming, among other things, that Quirk and the city had

“defamed him and injured his professional reputation by publishing false charges

concerning his conduct as police chief” (1985 Ohio App. LEXIS 6806). Fawley

subpoenaed Poidomani to testify. After acknowledging that the protection of the shield

statute did not apply, she still asked for a constitutional privilege not to reveal her

source’s identity. A trial court denied that request, finding Poidomani in contempt of

court and fined her $100. Once brought before the appeals court, it was determined that

in order to make a complete ruling, Fawley had to be able to meet the three-prong test

originally given in Branzburg v. Hayes – which he did. The appellate court affirmed the

earlier ruling, holding Poidomani in contempt.

        Like Kentucky, the state shield law in Michigan grants protection to both print

and broadcast journalists. Those reporters and employees “shall not be required to

disclose the identity of an informant, any unpublished information obtained from an

informant, or any unpublished matter or documentation, in whatever manner recorded…”

(MCL § 767.5a). The statute also carries a clause that declares communications between

attorneys and their clients, members of the clergy and members of their church, and

between physicians and their patients confidential and privileged.

        In 1986, however, Michigan’s shield law did not extend protection to broadcast

television journalists. The statute at the time of In re: Contempt of Stone read in part: “In

any inquiry authorized by this act, communication between reporter of newspapers or

other publications and their informants are hereby declared to be privileged and

confidential” (154 Mich. App. 121). At the time, a grand jury was investigating into the
shooting death of an off-duty state trooper in downtown Detroit. The trooper died

reaching for his own weapon when two teenage boys announced a holdup. The grand jury

served subpoenas to members of a television station, demanding production of all written,

filmed or recorded materials and notes relating to a series on Detroit area teen gangs.

Included in the order was all censored and edited portions and silhouette filmings

disclosing the identities of all people who appeared in the story. The station filed a

motion to quash. The trial court heard testimonies from a police detective and reporter

Bradley M. Stone in a closed session. Later, the trial court denied the motion to quash,

and declared Stone in contempt for refusing to surrender the tapes. The Court of Appeals

determined that the term “publication,” as used in the 1986 version of the shield statute,

meant printed materials for public dissemination. The court was quick to point out “the

statute itself makes no mention of television or radio reporters,” and concluded, “the

shield law applies only to the print media” (154 Mich. App. 121). Michigan courts later

pointed out in Mays v. Gillett Communications that the shield statute was later amended

in such a way that In re: Contempt of Stone would have currently been decided

differently.

        Mays v. Gillett Communications continued the dispute between Stone and the

estate of another killed state police trooper. Plaintiff Doris Mays claimed that Stone and

his employers had a duty to comply with the grand jury subpoena covering the taped

interviews with gang members, as the same gang members subsequently shot her

decedent. According to Mays, the television studio’s failure to comply with the subpoena

resulted in the killers not being apprehended until after her decedent was killed. After

citing In re: Contempt of Stone several times, the Court of Appeals affirmed the ruling at
the trial court level, which decided in favor of Stone and Gillett Communications.

Besides maintaining that the broadcasting company had no responsibility to the decedent,

the appellate court also pointed out that the station had a legal right to pursue all legal

challenges to the subpoena, which had not been done at the time of the decedent’s death

(198 Mich. App. 223).

       The Michigan press shield law provides a newspaper no protection in a civil case

for non-confidential materials, as an appellate court ruled in Marketos v. American

Employers Insurance. On Jan. 4, 1986, a fire of suspicious origin destroyed a business

owned by George J. Marketos in Ann Arbor. Marketos filed for insurance compensations

from American Employers Insurance, who in turn denied the claim using the defense of

arson. The local fire marshal took some photographs of the scene, but concluded that the

photos and investigation were inconclusive with regards to arson, and declared the cause

of the fire “undetermined.” The Ann Arbor News sent a photographer out to the scene as

well, and published a few of the pictures. Approximately 20 photos remained

unpublished (185 Mich. App. 179). In July, American served a subpoena on the

newspaper for the unpublished photographs. “There is no dispute,” wrote the court, “that

the photographs were taken at a public place in full public view. Confidentiality is not

claimed” (185 Mich. App. 179). Although the photos taken by the newspaper were likely

similar to those taken by the fire marshal, American asserted that a close inspection of the

pictures might reveal definitive evidence of arson. A local court denied the newspaper’s

motion to quash the subpoena, a ruling later affirmed by the Court of Appeals. The court

ruled it impossible for American to meet the proposed test that the materials were: highly
material; critical to the litigant’s claim, and; not otherwise available, without inspecting

the materials in the first place.

        The Tennessee shield statute is very similar to all other states in the Sixth Circuit

– no one engaged in gathering information for publication or broadcast will be required to

disclose the identity of the source or any of the information provided (Tenn. Code Ann.

§24-1-208). The law asserts that anyone involved in a pertinent legal proceeding has a

right to file a motion to divest the protection. The motion will be granted only if the

person seeking confidential information can clearly prove that the situation meets all thee

standards put forth in Branzburg. The shield statute warns that protection will not apply

with respect to the source of any allegedly defamatory information in a case where the

defendant creates a defense based on the source of the information.

        In State of Tennessee v. Shaffer, Tennessee courts found that meeting two of the

three criteria in the proposed Branzburg test simply is not enough to compel the release

of unused video footage. Demetria Kalodimos, a reporter and anchor for a Nashville

television, conducted an interview with James M. Shaffer while he was in jail in

Kentucky for two counts of first-degree murder. The station later broadcasted portions of

that interview. State law enforcement officials filed a subpoena requesting the unused

footage, and a divestment of the protection afforded under the shield law. The ten

minutes aired on the television station were edited from more than two hours of tape.

The state maintained the extensive interview by Kalodimos would help in identification

of the two murder victims, who were identified at the time merely by “Sheila” and “Little

Bit” (1990 Tenn. App. LEXIS 21). The state also claimed that the unused segments

would help evaluate Shaffer’s insanity defense and the possible investigation into other
crimes Shaffer committed. Kalodimos asserted that if compelled to disclose the

unbroadcast portions, it would create the “perception, if not the reality, that both she and

WSMV-TV are an investigative arm of the District Attorney General’s Office or of the

judicial system” (1990 Tenn. App. LEXIS 21). The trial court found that while two of the

three prerequisites had been adequately met, the court could not determine whether the

information can be obtained by alternative means, since neither the State nor the court

knew what was contained in the material. The trial court, however, ordered the station to

supply the unused footage to allow them to determine if the knowledge can be obtained

by other means. The Court of Appeals agreed with the first decision, but declared the trial

court acted in violation of the shield statute when demanding the disclosure of the unused

footage. “It is not the function of the court under the statute to act as an arm of the State,”

wrote the appellate court (1990 Tenn. App. LEXIS 21). The court reversed the earlier

ruling, and remanded it back to the trial court.

        As part of a wrongful death suit, the parents of William J. Austin, Jr. filed

subpoenas to Memphis’ four television stations and two newspapers, seeking materials in

their files relating to the bridge collapse that killed their son. The television stations

complied with the subpoena – the newspapers did not. The trial judge originally ruled to

quash the subpoenas, saying that the shield statute gave “an absolute shield to newspapers

which protects them against being compelled to disclose any information in their files”

(621 S.W. 2d 397). The Austins moved the court to reconsider its ruling, and the trial

judge later reversed himself. This time the judge ruled that the shield statute did not

apply. The appeals court declared all the trial court’s rulings null, void, and of no effect,

concluding the court lacked subject matter jurisdiction in applying the shield law to the
tort lawsuit. The case was then remanded back to the trial court to determine if the

information sought was confidential or not.

       Two years later, Austin v. Memphis Publishing Co. made its way to the Supreme

Court of Tennessee. The Austins acknowledged they could not meet all of the

requirements needed through the shield statute for divestiture, but held that the statute

was not intended to apply to civil cases or non-confidential information. The high court

determined the shield law uses “clear and unambiguous” language that a newsman should

not be required to disclose “‘any information or the source of information’ ” (655 S.W.

2d 146). The court pointed out the legislature did not qualify “any information” or the

“source of any information” with the word “confidential,” and that there was no language

in the statute limiting the privilege. The Tennessee Supreme Court held that the appeals

court erred in trying to limit the scope of the shield law with the term “confidential,” and

since the Austins acknowledged they could not meet the requirements outlined in the

statute, their order for divestiture was dismissed (655 S.W. 2d 146).

       In another Tennessee Supreme Court case, State ex rel. Gerbitz v. Curriden,

courts instituted the shield law in protection of radio broadcaster Mark Curriden.

Curriden interviewed an alleged murderer during the week of June 23, 1986. Promos for

the segment aired the day before announced “tomorrow, Mark will talk with a man who

committed a murder and has never been arrested” (738 S.W. 2d 192). Curriden also said

that area police considered the murderer dangerous, and at the time of the murder, the

person was on parole for assault and battery. In his testimony, Curriden denied knowing

the murderer’s true identity, and could provide only a general description of him. Shortly

after the broadcast, Curriden was subpoenaed to appear before a Hamilton County grand
jury. There was no explanation to the type of information the grand jury hoped to obtain,

or what other efforts law enforcement officials had made to determine the identity of the

criminal offense or the offender himself. There was no evidence that the crime even

occurred under Hamilton County’s jurisdiction. Nor was there any investigation or

inquiry by Hamilton County officials to surrounding areas. For those reasons, the Court

of Appeals held that the State had not offered convincing evidence that the information

sought could be obtained through alternative methods, and decided to dismiss the

subpoena. “If appropriate law enforcement authorities make a further investigation into

this alleged offense, the matter might be resubmitted to the Court of Appeals,” the

Supreme Court wrote in its affirming decision (738 S.W. 2d 192). As the evidence stood

at the current time, however, the State could not compel Curriden to testify.



             “In the constant tug of war between newspapers, defense lawyers, law

  enforcement officials and courts, newspersons contend that they are entitled to a free

  press; defendants argue that they are entitled to a fair trial; law enforcement officials

  assert that they are entitled to all relevant evidence from whatever source; and courts

                want to maintain their integrity by enforcing their orders”

                               (In re: McAuley, 63 Ohio App. 2d 5).
Bibliography


   1.) Austin v. Memphis Publishing Co., 321 S.W. 2d 397, 1981 Tenn. App. LEXIS

      525, 7 Media L. Rep. 1986 (1981)

   2.) Austin v. Memphis Publishing Co., 655 S.W. 2d 146, 1983 Tenn. LEXIS 786, 9

      Media L. Rep. 2070 (1983).

   3.) Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972).

   4.) Branzburg v. Pound, 461 S.W. 2d 345, 1970 Ky. LEXIS 614 (1970).

   5.) Branzburg v. Meigs, 503 S.W. 2d 748, 1971 Ky. LEXIS 50 (1971).

   6.) Fawley v. Quirk and In re: Contempt Conviction of Poidomani, 1985 Ohio App.

      LEXIS 6806, 11 Media L. Rep. 2336 (1985).

   7.) In re: April 7, 1999 Grand Jury Proceedings, 140 Ohio App. 3d 755, 2000 Ohio

      2552, 749 N.E. 2d 325 (2000).

   8.) In re: Contempt of Stone, 154 Mich. App. 121, 397 N.W. 2d 244, 1986 Mich

      App. LEXIS 2843 (1986).

   9.) In re: Grand Jury Witness Subpoena of Abraham, 92 Ohio App. 3d 186, 634 N.E.

      2d 667, 1993 Ohio App. LEXIS 5754 (1993).

   10.) In re: McAuley, 63 Ohio App. 2d 5, 408 N.E. 2d 697, 1979 Ohio App. LEXIS

       8404 (1979).

   11.) Kentucky Revised Statutes Annotated, § 421.100 (2004).

   12.) Lexington Herald-Leader v. Beard, 690 S.W. 2d 374, 1984 Ky. LEXIS 281, 11

       Media L. Rep. 1376 (1984).

   13.) Marketos v. American Employers Insurance, 185 Mich. App 179, 460 N.W. 2d

        272, 1990 Mich. App. LEXIS 341 (1990).
14.) Mays v. Gillett Communications, 198 Mich. App. 223, 497 N.W. 2d 218, 1993

     Mich. App. LEXIS 57 (1993).

15.) Michigan Compiled Laws Service, § 767.5a (2005).

16.) Ohio Revised Code Annotated, § 2739.12 (2005).

17.) State of Tennessee v. Curriden, 738 S.W. 2d 192, 1987 Tenn. LEXIS 987, 14

     Media L. Rep. 1797 (1987).

18.) State of Tennessee ex rel. Gerbitz v. Shaffer, 1990 Tenn. App. LEXIS 21, 17

     Media L. Rep. 1489 (1990).

19.) Tennessee Code Annotated, § 24-1-208 (2004).

				
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