Petition — Tribune Publishing Co. v. Caldero

Supreme Court brief1977

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INDEX

| Page

gg EP VET TT TT ILE TPES TEEPE 1

7 RAED PET EST ey TY YI ITITITICIEL LAL 2

Queersows PRMEBNTED 2... ccc cc cccccccccccccccccsees 2

ConsTITUTIONAL Provisions INVOLVED .............+.: 2

SD PED ed dd dias s baspecescededoccceses 3

SraTEMBNT OF THE Case .... 2... cc ccc cece cccecceces 3

SuMMARY OF ARGUMENT sphnddadereaddeedscccegeces 12

pS, ESP PO TTT TOT TTT TTT TL ITTTTTTT TTT Tee 14

The Opinion Below Erroneously Interprets This

Court’s Holding in Branzburg v. Hayes to

uire Disclosure of Confidential News Sources

EE ccccanegeaaecososecesicece 14

Disclosure of a Newsman’s Confidential Source,

Pursuant to Discovery in Civil Litigation, May

Not Be Compelled in the Absence of Findings

that There Do Not Exist Alternative Means of

Obtaining the Information and that There Is a

Compelling or Overriding State Interest which

FUMED TGIGUED oo dc cc ccc cess eeevevecccee 24

In Civil Libel Cases Wherein It Is Found that

Alternative Sources have been Exhausted and

There Is a Compelling State Interest in Dis-

closure, the Trial Court Must then Implement

the Remedy Least Destructive of First Amend-

GR FD wath nin 0 Shbn the béc cde ctedeccocenss 35

SEED 6 Lit d., Cada donee bdbudeeevbcedsodesin 45

TABLE OF CITATIONS

Page

CasEs:

Baker v. F & F Investment, 470 F.2d 778 (2d Cir.

1972), cert. denied, 411 U.S. 966 (1973) . .19, 29, 30, 31

Braneburg v. Hayes, 408 U.S. 665 (1972) .......... passim

Brown v. Commonwealth, 204 8.E.2d 429 (Va, 1974) .. 31

Buchanan v. Cronkite (D.D.C. 1974) ........ eesecees 31

Bursey v. United States, 466 F.2d 1059 (9th Cir.), reh.

denied, 466 F.2d 1092 (1972) .............. 19, 20, 21

Cantwell v. Connecticut, 310 U.S. 360 ory Seta deine 31

Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974) ... .18, 30, 33

Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972),

cert. denied, 409 U.S. 1125 (1973) ........ 1, =

Coates v. Cincinnati, 402 U.S. 611 (1971) ........... 36

Craig v. Harney, 331 U.S. 367 (1947) ............++.- 34

DeGregory v. Atty. Gen. of New Hampshire, 383 U.S.

ff ane Jo ce ececcccacecssscccces 25

Democratic National Committee v. McCord, 356 F.

Supp. 1394 (D.D.C. 1973) ...........eeeeeeeees 31

Farr v. Pitchess, 522 F.2d 9th Cir. 1975), cert.

denied, —— U.S. ——,, 49 L. 1203 (1976) .. 43

Farr A Superior Court, 22 Cal. App.3d 59 (2d Dist. e

TM. encoscothesetectonses see cankbenmena 60 60

Fram v. \ elit Cab Co., 380 F.Supp. 918 (1975) .... 34

Garland v. Torre, 259 F.2d 545 ( .), cert. >

SEB UE. GOO COREE) 2 cc ccccvedcosceccccesece passim

Gerte v. Robert Welch, Inc., 418 U.S. 323 (1974) . .33, 34

Gilbert v. Allied Chemical Corp., 411 F.Supp. 505

CORI, Dee, BED bic dp coed cc dns's o6 0 ccenescnasece:

Greenbelt Coop. Publ. Assn. v. Brestler, 398 U.S. 264 ~

BIOED evcncvedns scenes tagwbbowrorssceegeedocs

pa v. Mayor and Council of the Borough cf Orodell,

— ‘8. —, 48 L.Bd.2d 243 DE cancauane

In re Farr, 36 Cal. App.3d 577 (2d Dist. 1974) ...... 43

In re Professional H Anti-Trust Litigation, 531

F.2d 133 (3d Cir. 1 ya daddee sdventdoaditecess 37

Loadholtz v. Fields, 389 F. 1299 (M.D.Fla. 1975) 31

Louisiana v. NAACP, 366 U.S. 293 (1961) .......... a,

Morgan v. State, 377 So.2d 951 (Fla. 1976) .......... 31

NAACP v. Alabama, 357 U.S. 449 (1958) .......... 25

NAACP v. Button, 371 U.S. 438 (1963) ............ 25

Table of Citations Continued iii

Page

Nebraska Press Assoc. v. Stuart, — U.S. —, 49 L.Ed.2d

ED ean, cise see b eis « 31, 35, 36, 41, 42

New York Times v. Sullivan, 376 U.S. 254 (1964) ....6, 40

New York Times Co. v. United States, 403 U.S. 713

Dn eeiaeheticcerede se Sik Adee<Nekbusees éee 34

Old Dominion Branch No. 496 v. Austin, 418 U.S, 264

it edt ade eewreds 5 ch cdbaniebee6oeee.ce 34

Reynolds v. United States, 192 F.2d 987 (3d Cir. 1951),

rev'd. on other grounds, 345 U.S. 1 (1953) ...... 39, 40

Robinson v. Transamerica Ins. Co., 368 F.2d 37 (10th

ee i awe 37

Rosato v. Superior Court of Fresno County, 51 Cal.

App. 3d (1975), cert. denied, — U.S. —, 96 S.Ct.

ee ea dak, cease eee teen nek eee c 43

Schenck v. United States, 249 U.S. 47 (1919) ........ 34

Sellers v. Time, In-z., 423 F.2d 887 (3d Cir. 1970) .... 33

Shelton v. Tucker, 364 U.S. 479 (1960) ...... 14, 31, 36, 42

Sheppard v. Maxwell, 384 US. 333 (1966) .......... 41

Society International v. Rogers, 357 U.S. 197 (1958) .. 38

State v. St. Peter, 315 A.2d 254 (Vt. 1974) .......... 31

United States v. Robel, 389 U.S. 258 (1967) ....36, 41, 42

Yorty v. Chandler, 13 Cal. Supp.3d 469 (1970) ........ 34

Zwickler v. Coota, 389 U.S. 241 (1967) ............ 36

OrHer AUTHORITIES :

W. Eckhart, Jr. & A. McKey, Caldero v. Tribune Pub-

lishing Co.: Substantative and Remedial Aspects

of First Amendment Protection For a Reporter’s

Confidential Sources. 14 Ipano L. Rev. 1 (1977)... 35

1 Hanson, Liver anp Retatep Torts (1969) ......... 34

4A J. Moorz, Moorr’s Feperat Practice (1975) ..... 36, 37

Press Censorship Newsletter, March, 1973-October,

DT SEMEES G AWhehddbnectdcenes cebencrser 43

8 Wricut & Mriiuer, Feperat Practice anp Procepure

bed aRds hates bes + 66664666 0%% 0060 bce 36, 37

IN THE

| Supreme Court of the United States

OcToBER TERM, 1976

No.

TRIBUNE PUBLISHING COMPANY and

JAMES FE. SHELLEDY, Petitioners,

v. ,

MicHaEL A. CALpERO, Respondent.

In Re SHELLEDY

P)ZTITION FOR A WRIT OF CERTIORARI TO THE

SUPREME COURT OF THE STATE OF IDAHO

Petitioners respectfully pray that a writ of certio-

rari issue to review the judgment of the Supreme Court

of the State of Idaho entered on March 4, 1977.

OPINIONS BELOW

The District Court of the Second Judicial District

of the State of Idaho, in and for the County of Latah,

rendered no opinion. The opinion of the Supreme

Court of the State of Idaho, not yet officially reported,

is set forth in Appendix A.

JURISDICTION

The judgment of the Supreme Court of the State of

Idaho was made and entered on March 4, 1977. The

petition of Tribune Publishing Company and James

E. Shelledy for a rehearing was denied on April 1,

1977. The jurisdiction of this Court is invoked under

28 U.S.C. § 1257(3).

QUESTIONS PRESENTED

1. Whether the decision of this Court in Branzburg

vy. Hayes mandates that a court order disclosure of a

confidential news source in civil litigation without first

analyzing and balancing the competing constitutional

interests involved.

2. Whether a state court in a civil action, consistent-

ly with the First Amendment protection extended to

newsgathering, may order the disclosure of the identity

of a news reporter’s confidential source without an ex-

press finding by the court (a) that the information

sought is relevant to the underlying civil litigation ; and

(b) that the information sought from the reporter is

unavailable from other sources; and (c) that the in-

formation sought is of such critical importance to the

plaintiff’s case as to override the invasion of First

Amendment interests occasioned by its disclosure.

3. Whether a trial court, prior to ordering dis-

closure (coerced by contempt) of a confidential news

source, must consider alternative remedies less destruc-

tive of First Amendment rights.

CONSTITUTIONAL PROVISIONS INVOLVED

Amendmen!

‘Congress shall make no law . . . abridging the

freedom .. . of the press;...”’

Amendment V

‘“‘No person shall . . . be deprived of life, liberty,

or property, without due process of law;.. .’’

STATUTES INVOLVED

‘All persons, without exception, otherwise than is

specified at the next two sections, who, having organs

of sense, can provide, and perceiving, can make known

their perception to others, may be witnesses.’’ Idaho

Code § 9-201.

‘*A witness, served with a subpoena, must attend at

the time appointed, with any papers under his control,

required by the subpoena, and answer all pertinent

and legal questions, and, unless sooner discharged,

must remain until the testimony is closed.’’ Idaho

Code § 9-1301.

STATEMENT OF THE CASE

Petitioners herein, Tribune Publishing Company

and James E. Shelledy, seek review of the judgment

of the Supreme Court of the State of Idaho upholding

an order, judgment, and sentence of and for contempt

resulting from a newsman’s refusal to disclose the

identity of a confidential source whose reported opinion

was neither defamatory nor indicative of ‘actual

malice.’’ The plaintiff below, Michael Caldero, insti-

tuted an action in libel, later amended to include a

count alleging invasion of privacy, against the Tribune

Publishing Company and James E. Shelledy based on

an article printed in the November 23, 1973, issue of

the Lewiston Tribune. The substance of the complaint

was that the article contained ‘‘an unfair, false and

malicious account’”’ of an incident involving Caldero

while he was employed as an undercover agent for the

Idaho Bureau of Narcotic Enforcement.

The article described, in detail, an incident on

August 27, 1972, when Caldero and another agent were

in a public park in Coeur d’Alene, Idaho, and in the

process of an arrest of one Booth who had attempted

to sell them narcotics. Booth was in the company of

one Johnson, and when an altercation ensued between

Booth and the two agents, Johnson attempted to leave

the scene in an automobile. Although the precise facts

are in dispute, it is agreed that Caldero fired three

shots through the windshield of the Johnson-driven

vehicle, two of which struck and injured Johnson.

The Tribune article in question appeared more than

a year after the event under the by-line of Jay Shelledy

and had as its focus the professional propriety of

Caldero’s conduct. Caldero claimed that ‘‘he fired in

self defense ; that Johnson tried to run him down.”’ In

the article, Caldero’s assertion was contrasted with

statements from eye witnesses and general observa-

tions from the county prosecutor and the state attorney

general. Additionally, the article contained the opinion

of an undisclosed ‘‘police expert’’ as follows:

‘One police expert, in an off-the-record interview

with the Tribune, said Caldero’s justification for

shooting didn’t add up. His reasoning was

derived mainly from logistical facts:

‘¢__Tt was more than 90 minutes after sundown,

so the lighting was too poor to see Caldero’s small

walt SO A SND Se ee © Oe

yards.

‘‘__I 9 distance between Caldero and Johnson’s

ear when Johnson pulled out of the parking stall

was not sufficient for the vehicle to have picked up

much speed, especially since the tires were not

getting traction in the loose gravel. Even the

slowest agent could have stepped out of the way,

unless he was determined to throw himself in

front of the car to physically stop it. (Witnesses

estimate the speed of the ear at less than 10 m.p.h.

when the shots were fired.)

‘“‘Caldero didn’t have time to pull out his gun

while running toward the car, dig out his wallet

and show his badge, get out of the way of the car,

replace his wallet and fire three shots with both

hands on the gun as police are taught to fire.

“The position of the bullet holes and angle at

which Johnson Hong aa a Caldero adjacent to the

left tire when he . Therefore, the car had

missed him and he was in no apparent danger

and in good position to shoot the tires out if he

felt he had to fire his gun.

‘*But Booth’s sale and Johnson’s accomplice’s role

were not ‘shooting’ offenses. Caldero’s only justi-

fication would be to maintain his life was in grave

danger. Otherwise, it would be a case of a young

policeman who panicked, or who became carried

away.’’

During the course of discovery in the Caldero law-

suit, the newsman Shelledy was desposed and questions

were directed to him by Caldero’s attorney pertaining

to the portion of the article relating to the opinion of__

the “‘police expert.’’ Shelledy refused to answer those

questions which would, in his opinion, either reveal or

lead to the identity of the source of the information.

Thereafter, Shelledy was added as a party-defendant

to the action. Subsequently, Caldero filed a Motion to

Compel Answers to Questions-Oral Examination

against Shelledy, and the defendants filed a motion for

summary judgment. Both motions were briefed, orally

argued, and submitted simultaneously for determina-

tion by the lower court. During the hearing on those

motions the court orally advised that it had concluded

that ‘Caldero was, in fact, a ‘“‘public official’ or ‘public

figure’, thereby requiring that actual malice be shown

as a condition precedent to establishing a prima facia

case under the doctrine of New York Times v. Sullivan,

376 U.S. 254 (1964). The court reserved action on the

defendant’s motion for summary judgment but did

state that it would have granted the motion due to a

lack of proof or showing of actual malice had it not

been for the plaintiffs’ motion to compel disclosure.

The court did grant the plaintiff’s motion to compel

answers; however, the granting of the motion was

limited and the court entered an order which directed

Shelledy to appear and answer only three questions:

‘1. Who is the person identified as the ‘police

expert’ in the subject article?

2. What was the time and place of the conversation

between the deponent and the police expert?

3. What did the police expert say, and what informa-

tion did the police expert relate to the deponent, during

the conversation or any other ?’’

Shelledy was again deposed and with respect to ques-

tions 2 and 3 of the court order, he indicated that the

conversation took place by telephone approximately

ten days prior to publication of the article. Shelledy

stated that he had explained to his anonymous source

the circumstances surrounding the shooting incident as

they had been revealed by his investigation, and the

anonymous source opined that under those circum-

stances, in retrospect, Caldero’s life was not in danger

at the time of the shooting. Certain collateral ques-

tions which were put to Shelledy were rejected by the

District Court as being beyond the scope of its order.

Upon being asked the identity of the police expert,

Shelledy read a statement declaring his refusal to an-

swer and stating that he based such refusal upon the

First Amendment to the United States Constitution

and his professional code of ethics. Upon Shelledy’s

continued refusal to reveal the identity of the police

expert, and after he had been advised of the conse-

quences of his conduct, Shelledy was judged in con-

tempt and ordered incarcerated for a period of 30

days, at the end of which time he was to be reexamined

by the court with regard to the identity of the police

expert and “‘given an opportunity to remove his con-

tempt.” That order, and the execution of the judg-

ment thereunder, was stayed pending appeal to the

Supreme Court of the State of Idaho. The District

Court’s Order of April 23, 1975, further provided

that the ruling on defendant’s motion for summary

judgment, which had been fully submitted to the court

for determination, was also to be stayed pending ap-

peal to the Supreme Court of the State of Idaho.

On appeal, the Supreme Court of the State of Idaho

affirmed in a three to two decision. The majority

brie." viewed the Idaho statutes pertaining to wit-

nesse - d the requirements of testimony and con-

clude. aat th<. » statutes did not excuse Shelledy from ©

testifying nor recognize the newsman’s asserted privi-

lege. Addressing itself to the First Amendment issue,

the majority outlined what it conceived to be the ques-

tion before it:

“We come then to appellant’s major contention

that he cannot be compelled to disclose the infor-

_———

mation sought here because of the freedom of the

ress by the First Amendment to the

ederal Constitution. It is argued that the dis-

closure of information acquired by a newsman

from a confidential source would have a ‘‘chilling

effect’’ on the ability of newsmen to utilize con-

fidential sources and thus inhibit the media’s abil-

ity to gather news and inform the public, all in

violation of the First Amendment guaranty.’’ Ap-

pendix A at Ta-8a.

The majority noted that in Garland v. Torre, 259

V’.2d 545 (2d Cir.), cert. denied, 358 U.S. 910 (1958),

the Second Cireuit Court of Appeals considered the

argument, first, ‘‘that a newsman has an absolute privi-

lege against disclosure of confidential sources ..., and,

secondly, that at least in certain circumstances a con-

fidential news source is protected by a qualified privi-

lege.’”’ Appendix A at 8a. The majority proceeded to

note that ‘‘[w]e read the opinion of [the court] as

rejecting both alternatives.’’ Id.

The Idaho Supreme Court then proceeded to address

and place primary reliance upon this Court’s decision

in Branzburg v. Hayes, 408 U.S. 665 (1972). While

noting that Branzburg was ‘‘cast in the criminal area”’,

the majority nevertheless, found ‘‘certain language

therein to be of guidance.’’ Appendix A at 10a. After

a review of some of that language, the majority then

indicated that its ‘‘reading of Branzburg v. Hayes is

to the effect that no newsman’s privilege against dis-

closure of confidential sources founded upon the First

Amendment exists in an absolute or qualified version.’’

Td. at 13a.

Finally, the court endorsed or distinguished various

state and federal court decisions concerning the exist-

ence and/or extent of a constitutionally based privilege

and affirmed the order, judgment, and sentence of the

trial court, stating that it ‘‘cannot accept the premise

' that the public’s right to know the truth is somehow

enhanced by prohibiting the disclosure of truth in the

courts of the public.’’ Appendix A at 22a.

In a sharply worded dissenting opinion, Justice

Donaldson, noting that ‘‘there is some doubt that the

majority believes First Amendment freedoms are even

implicated’, criticized the majority opinion for its

failure to expressly address the issue of competing in-

terests ‘‘in this First Amendment case [which] neces-

sarily involves a balancing of competing interests.”’

Appendix A at 23a. He stated that the two interests

here involved—‘‘the interest in allowing the press un-

fettered access to sources of information and the in-

terest in allowing courts unimpaired access to testi-

mony in cwil litigation’’—cannot be resolved ‘‘by stat-

ing the general theory that new testimonial privileges

are disfavored or by stating the importance courts have

traditionally placed on compelling testimony in a

lawsuit.’’ Id. at 23a. Justice Donaldson also discounted

the precedential value, in civil litigation, of Branzburg.

He emphasized that Branzburg was decided in the con-

text of a criminal grand jury investigation, and that

Justice Powell’s decisive concurring opinion in the 5-4

decision, by recognizing that ‘‘sources are privileged

under certain circumstances, .. . does establish a quali-

fied privilege.”’ Id. at 29a,n.3 (emphasis added),

Justice Donaldson’s dissenting opinion then reviews

various cases in which newsmen have been subpoenaed

to testify in civil litigation and notes that their ‘‘basic

theme . . . is that news-gathering should enjoy a

qualified privilege’, wherein ‘‘courts would compel

disclosure only when the plaintiff could show that the

identity of the source was critical to his case.” Id.

at 37a.

Applying these principals to the instant case, Justice

Donaldson found no basis for compelling disclosure of

the identity of Shelledy’s confidential source:

‘‘Caldero ... has made no showing that he at-

tempted to obtain the identity of Shelledy’s source

by alternative means less destructive of first

amendment freedoms. ... [Moreover,] Caldero

has not even come close to establishing the critical

importance of Shelledy’s testimony. Shelledy’s

undi ed source merely expressed an opinion

about the professional propriety of Caldero’s con-

duct that was echoed by the county prosecutor and

the state attorney general, both of m were iden-

tified in Shelledy’s article..... The statements

themselves do not evince any inference of malice.

. . . Caldero’s claim, moreover, is not ~~

by any other evidence. As stated earlier, the only

relevance that the identity of the source has in

Caldero is that an inference of malice would arise

if the source was either nonexistent or irrespon-

sible. Critical im nee cannot be established

on such a meager basis. The identity of a source

could be of critical importance only if plaintiff’s

allegations already had some basis in fact before

disclosure. Then the identity of the reporter’s

source could have the pivotal importance envi-

ree by Garland and its progeny.’’ Appendix

at 38a.

In a separate dissenting opinion, Justice Bakes

disputed the assertion in the majority opinion that the

First Amendment does not afford a limited privilege

protecting newsmen from discovery of their confiden-

tial sources. He noted that even in those civil cases

where discovery ultimately was ordered, a balancing

of the First Amendment protection of newsgathering

against the right of litigants to discovery of material

information was undertaken. Moreover, where dis-

closure has been ordered, it has not been accorded

the breadth and scope which routinely is accorded

discovery of non-privileged matters under F.R.C.P.

26(b)(1). This tacit recognition that, by virtue of

the First Amendment, discovery pertaining to a con-

fidential news source may not be as broad as discovery

ordinarily afforded under F.R.C.P. 26(b)(1), is also

evident in the discovery order of the trial court and in

the opinion of the Idaho Supreme Court below:

‘*T Although] the reporter here was not privileged

to refuse to disclose his sources, the scope of the

discovery ordered is limited to three questions .. .

and the trial court rejected the plaintiff’s request

for discovery of answers to several collateral

questions.’’ Appendix A at 42a.

Justice Bakes’ dissenting opinion goes on to note

that, were the publication in question actually libelous,

discovery of the police expert would, in fact, be criti-

cal to the plaintiff’s case. Inasmuch as the published

opinion of the police expert was clearly speculative,

and based upon underlying factual assertions the ac-

curacy of which is not disputed by Caldero, ‘‘it cannot

be said that the article has defamed Caldero, and

therefore the search for actual malice in the publica-

tion becomes irrelevant’’, Jd. at 45a; and reversal of

the district court’s order holding Shelledy in con-

tempt is appropriate.

“=e

fringement of First Amendmert rights in the absence

of any showing that there is an overriding state inter-

est justifying such infringement or that there is no

other alternative but to require compelled disclosure

of a newsman’s confidential source. Moreover, in

affirming the order of contempt entered by the trial

court, not only did the Supreme Court of Idaho err

by failing to inquire as to whether entry of such an

order constituted an abuse of discretion in these cir-

cumstances, but it also failed to determine whether al-

ternative discovery remedies, less destructive of First

Amendment interests, might have been utilized.

In addressing the issue as to the existence vel non

of a qualified newsman’s privilege to protect the con-

tidentiality of sources, the Idaho court erroneously

interprets the narrow holding of this Court in Branz-

burg v. Hayes, 408 U.S. 665 (1972). Branzburg held

only that, in the context of grand jury proceedings,

a newsman could not refuse to divulge information in

his possession pertaining to the observation or com-

mission of a crime. Ignoring the limited nature of

that opinion, the Supreme Court of Idaho held that,

under Branzburg, no newsman’s privilege existed, in

civil litigation, regardless of the surrounding facts

and circumstances. Although the Idaho court dis-

cussed Garland v. Torre, 259 F.2d 545 (2d Cir.),

cert. denied, 358 U.S. 910 (1958) and its progeny,

the court ignored the doctrine, consistently espoused

and applied in those cases, that, in civil litigation, a

journalist may not be compelled to reveal his confiden-

tial sources in the absence of particularized findings

that the information sought is 1) relevant to the under-

lying civil litigation; 2) umavailable from other

sources; and 3) of such critical importance to the law-

suit that i goes ‘‘to the heart of the plaintiff’s claim.”’

As pointed out in the dissenting opinions below,

there is some doubt that the majority even recognizes

that First Amendment rights were implicated in the

instant case. The majority below recognized that both

the Constitution and statutory law grant litigants the

right to the testimony of witnesses ; however, the court

ignored the competing First Amendment rights to pro-

tection of newsgathering and confidential sources.

Whenever constitutional rights are found to be in con-

flict, it is essential that a court analyze the competing

interests and engage in a balancing test. Prior to

determining that one constitutional interest must bow

to the other, a court must determine that there is

some compelling or overriding state interest which

justifies impairment of the constitutional right which

is subordinated. The courts applying the Garland

approach either compelled or refused to compel dis-

closure of a journalist’s confidential source only after

they had thoroughly analyzed the facts and cireum-

stances of each case; disclosure was never ordered in

those cases except where all three parts of the Gar-

land-test had been satisfied, and the court was con-

vineed that the need for the testimony overrode the

First Amendment interests at stake.

In the instant case, the Supreme Court of Idaho

ignored the fact that, whether the confidential source

existed or not, Caldero could not establish a prima

facie libel case. At most, non-existence of the source,

would have created an issue as to actual malice; how-

ever, as noted in the dissenting opinions, the other ele-

ments of libel were lacking. In the absence of some basis

in fact for the plaintiff’s allegations, the identity of

the confidential source could not be of critical im-

portance to plaintiff’s case, and the Garland-test there-

fore could not be satisfied.

Finally, the Idaho court failed to determine whether

entry of the contempt order constituted an abuse of

discretion by the trial court and whether alternative

discovery remedies might have obviated the constitu-

tional confrontation created by the contempt order.

Even had compelled disclosure been appropriate in

the instant case, the trial court had available to it

1umerous remedies, other than coercion by contempt,

which would have been less destructive of First

Amendment rights. The trial court’s refusal to con-

sider such remedies was, in itself, an abuse of discre-

tion. Moreover, the significant constitutional interests

at stake required the trial court and the Idaho Su-

preme Court to seek less drastic means by which the

objective, ultimately sought, could be more narrowly

achieved. Shelton v. Tucker, 364 U.S. 479 (1960).

The importance of disclosure to the plaintiff was not

sufficiently critical to justify the impairment of First

Amendment rights occasioned by a disclosure order

coerced by contempt. }

I. THE OPINION BELOW ERRONEOUSLY INTER? iS

THIS COURT'S HOLDING IN BRANZBURG v. HAYES

TO REQUIRE DISCLOSURE OF CONFIDENTIAL NEWS

SOURCES IN CIVIL LITIGATION

Much of the holding by the majority of the Idaho

Supreme Court, affirming the contempt citation of

Petitioner Shelledy, is based on their reading of this

Court’s opinion in Branzburg v. Hayes, 408 U.S. 665

(1972). There ‘‘[t]he sole issue before [the Court

was] the obligation of reporters to respond to grand

jury subpoenas as other citizens do and to answer

questions relvant to an investigation into the commis-

sion of a crime.”’ Id. at 682. Branzburg resulted in

a 5-4 decision in which Justice Powell wrote a concur-

ring opinion. Three of the dissenters (Stewart,

Brennan, Marshall, JJ) urged the recognition of a

qualified ‘‘newsman’s privilege’. Justice Douglas, in

a separate dissenting opinion, stated that under the

First Amendment, newsmen enjoy an absolute privilege

against disclosure of their confidential news sources.

In the majority opinion, Justice White (joined by

Burger, Blackman, and Rehnquist, JJ), while empha-

sizing that ‘‘news gathering is not without its First

Amendment protections’’, Id. at 707, held:

‘‘On the records now before us, we receive no

basis for holding that the public interest in law

enforcement and in ensuring effective grand jury

proceedings is insufficient to override the conse-

uential, but uncertain, burden on news gathering

that is said to result from insisting that reporters,

like other citizens, respond to relevant questions

put ‘» them in the course of a valid nd jury

= ncaa or criminal trial.’’ 408 U.S. at 690-

Justice White noted, however, that a newsman’s

obligation to appear and testify before a gand jury

is not beyond challenge:

‘‘Grand jury investigations, if instituted or con-

ducted other than in good faith, would pose wholly

different issues for resolution under the First

Amendment.’’ 408 U.S. at 707.

In his concurring opinion, Justice Powell acknowl-

edged the general obligation of news reporters to

testify before grand juries, even regarding their con-

fidential news sources. Justice Powell, however, ex-

panded the scope of First Amendment protection

against disclosure of news sources beyond the situation

where a grand jury is being conducted in good faith.

He noted that ‘‘the asserted claim to privilege should

be judged on its facts by the striking of a proper

balance between freedom of the press and the obligation

of all citizens to give relevant testimony with respect to

criminal conduct.”” Id. at 710. Beyond this require-

ment that, on a case-by-case basis, the competing

interests of disclosur: and confidentiality be balanced

Justice Powell stated that a newsman might seek a

motion to quash or a protective order whenever he

was

“‘ealled upon to give information bearing only a

remote and tenous relationship to the cubdeas of ‘the

investigation, or if he has some other reason to

— that pa ee implicated confidential

source relationshi ith iti

of law enforcement.”’ 1d. eye 8 oma

Thus, although Justice White’s plurality opinion

would require that newsmen testify concerning confi-

dential news sources before grand juries, save where

the grand jury’s investigation is conducted in bad

faith, Justice Powell’s concurring opinion would ac-

cord greater protection against disclosure by requir-

ing, after the competing interests have been weighed,

a showing of a sufficiently compelling state interest in

disclosure and a showing that the information sought

to be disclosed is relevant to the subject of the grand

jury’s criminal investigation. In these respects, Justice

Powell’s concurring opinion is similar to Justice Stew-

art’s dissenting opinion, where he urged, as a precon-

dition to disclosure, a showing of: 1) relevance; 2)

exhaustion of alternate sources for the information

sought; and 3) a compelling state interest. Thus, the

fact that Branzburg was decided in the context of a

grand jury’s investigation of a newsman’s actual ob-

servation of criminal conduct, and the nature of Jus-

tice Powell’s special concurring opinion, leaves the

precedential value of Branzburg in civil litigation very

uncertain.

Nevertheless, the Idaho Supreme Court’s major-

ity opinion below, while acknowledging that the Branz-

burg decision was ‘‘cast in the criminal area”’, not only

found ‘‘certain language therein to be of guidance’’,

but interpreted that case to mean ‘‘that no newsman’s

privilege against disclosure of confidential sources

founded on the First Amendment exists in an abso-

lute or qualified version.’’ (Appendix A at 13a). Such

an interpret. tion is clearly overbroad and has no basis

in the language of the opinion itself. Had Justice

Powell thought that no qualified privilege should be

recognized, or that disclosure was inappropriate only

when a grand jury’s investigation was not being con-

ducted in good faith, there would have been no reason

for his special concurring opinion disfavoring disclo-

sure where the information sought bears ‘‘only a re-

mote or tenuous relationship to the . . . investigation”’,

or where the testimony sought would not satisfy a

‘legitimate need of law enforcement.”’

Judicial decisions subsequent to Branzburg make it

clear that that decision should not be accorded the

broad deference in civil litigation exhibited by the

Idaho Supreme Court. In Cervantes v. Time, Inc.,

464 F.2d 986 (8th Cir. 1972), cert. denied, 409 U.S.

1125 (1973), a civil libel action wherein plaintiff, the

Mayor of St. Louis, sought disclosure of defendant’s

confidential sources, the Eighth Circuit Court of Ap-

peals emphasized the limited scope of this Court’s hold-

ing in Branzburg:

‘“‘The Court was not faced with and, therefore

did not address, ek mee some whether a civil libel

suit should co the quite different recon-

ciliation of conflicting interests pressed upon us

here by the defense.’’ 464 F.2d at 993, n.9.

In another civil libel action, Carey v. Hume, 492

F.2d 631, 635-36 (D.C. Cir., 1974), the District of Co-

lumbia Cireuit Court of Appeals stated:

‘*TAjppellant was content to present the case to

us upon the theory that the First Amendment

left no room, under any circumstances, for com-

pelling a newsman to identify his source. That

is clearly not the law after Branzburg with re-

spect to criminal proceedings, and it rag Sa to

us that Branzburg, in la if not in holding,

left intact, insofar as civil litigation is concerned,

the approach .. . that the court will look to the

facts on a case-by-case basis in the course of

weighing the need for the testimony in question

against the claims of the newsmen that the public

right to know is impaired.”’

And, in a footnote:

‘‘Although it is certainly necessary to consider

carefully the emphasis in Branzburg upon the

public interest in the giving of testimony, we do

not believe that it automatically controls this case.

This is a civil libel suit rather than a grand jury

inquiry into crime, and the dispute over disclo-

sure is between the press and the Government.

This difference is of some importance, since the

ceniral thrust of Justice White’s opinion for the

Court concerns the traditional importance of

—— juries and the strong public interest in ef-

ective enforcement of the criminal law. Justice

White also relied on the various procedures avail-

able to prosecutors and grand juries to protect

informants and on careful use by the Government

of the power to compel testimony. Private liti-

gants are not similarly charged with the public

interest and may be more prone to seek wholesale

and indiscriminate disclosure.’’ 492 F.2d at 636,

n.6,

In another civil libel action, Baker v. F & F Invest-

ment 470 F.2d 778 (2d Cir. 1972), cert. denied, 411

U.S. 966 (1973), the Second Cireuit Court of Appeals

directly addressed the weight to be given Branzburg

in a civil context:

‘*Manifestly, the [Supreme] Court’s concern with

the integrity of the grand jury as an investigatory

arm of the criminal justice system distinguishes

Branzburg from the case presently before us. /f,

as Mr. Justice Powell noted in that case, instances

will arise in which First Amendment values out-

weigh the duty of a journalist to testify even in

the context of a criminal investigation, surely in

civil cases, courts must recognize that the public

interest in non-disclosure of journalists’ confiden-

tial news sources will often be weightier than the

private interest in compelled disclosure. . . .’’

470 F.2d at 784-785 (emphasis added).

In accord with this interpretation limiting the scope

of Branzburg’s applicability is the case of Bursey v.

United States, 466 F.2d 1059 (9th Cir. 1972), reh. de-

nied, 466 F.2d 1092 (1972). In this case, reporters

for the Black Panther Party’s newspaper were held

in contempt for refusing to answer questions pro-

pounded by a federal grand jury. The Ninth Circuit

Court of Appeals held that the witnesses could be com-

pelled to answer questions relevant to the subject mat-

ter of the criminal investigation for which the wit-

nesses received immunity. The reporters, therefore,

were required to testify concerning the presence of ille-

gal weapons at Panther headquarters and other crimi-

nal activity which they may have directly observed.

The court held, however, that they were not required to

_ answer inquiries about the identity of persons with

whom the witnesses were associated either on the news-

paper or in the Black Panther Party itself, even

thougk..the answers to these inquiries ‘‘might have

something vaguely to do with conduct that might have

criminal consequences.’’ 466 F.2d at 1091.

In so ruling, the court applied a balancing test re-

quiring, as a precondition to compelled disclosure of

the identity of confidential news sources and other as-

sociates, a showing of a compelling state interest, rele-

vance, and exhaustion of alternate sources. This de-

cision clearly does not interpret Branzburg to mean

that, even in the context of a grand jury investigation,

“no newsman’s privilege . . . exists in an absolute or

qualified version.’’ Appendix A at 13a. The court

specifically articulated the evidentiary showing neces-

sary to compel disclosure:

‘When the collison [between governmental ac-

tivity and First Amendment rights] occurs in the

context of a grand jury investigation, the govern-

ment’s burden is not met unless it establishes that

the government’s interest in the subject matter of

the investigation is ‘immediate, substantial, and

subordinating’, that there is a ‘substantial con-

nection’ between the information it seeks to have

the witness compelled to supply and the overrid-

ing governmental interest in the subject matter of

the investigation, and that the means of obtaining

the information is not more drastic than necessary

to forward the asserted governmental interest.”’

466 F.2d at 1083.

Moreover,

‘‘Tt]he fact alone that the government has a com-

pelling interest in the subject matter of a grand

jury investigation does not establish that it has

any compelling need for the answers to any spe-

cifie questions. The Court must decide whether

the government has carried its burden almost

question by question before it can compel an-

swers.’’ Id. at 1086.

The Bursey decision undoubtedly was written prior to

this Court’s decision in Branzburg, for it was released

the following day. In its Opinion on the Petition for

Rehearing, subsequently filed by the government, the

court stated that although ‘‘newsgathering was never

a real issue here’’, 466 F.2d 1090, n. 1, the decision in

Branzburg is applicable and does not dispense with

the need for balancing the competing interests on a

case-by-case basis:

First, Branzburg, Pappas, and Caldwell are not

inconsistent with either our reasoning or the re-

sult we have reached.

* * *

Although there is some language in Mr. Justice

White’s Opinion in Branzburg (408 U.S. at p.

665, 92 S.0t. 2646) implying that a grand jury in-

vestigation carries with it ingredients that may

favor balance for the government as against the

First Amendment, the passsage does not purport

to disavow the balancing standards enunciated in

such eases as DeGregory v. Atty. General of New

Hampshire (1966) 383 U.S. 825, 86 S.Ct. 1148, 16

L.Ed.2d 292; Gibson v. Florida Legislative Inves-

tigation Committee (1963) 372 U.S. 539, 83 S.Ct.

889, 9 L.Ed.2d 929, and Bates v. Little Rock

(1960) 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480

[W]e have concluded that the balance we

struck is not impaired by Branzburg.”’ Id. at

Thus, decisions out of the Second, Eighth, Ninth

and District of Columbia Circuit Courts of Appeal

indicate that the controlling authority of Branzburg,

in a civil case such as this, is, at the very best, uncer-

tain. As noted below in Justice Donaldson’s dissent-

ing opinion, Branzburg has not been accorded the

weight, even in the criminal context, which it is as-

eribed by the Idaho Court’s majority opinion below.

See Appendix A at 25a.

Thus, in a substantial number of civil cases and in

at least one notable case involving refusals to testify

before a grand jury, the question whether a newsman

may be compelled to disclose the identity of a confiden-

tial news source is addressed under the approach es-

poused in Justice Stewart’s dissenting opinion in

Branzburg, whereby the interest in disclosure is spe-

cifically balanced against the interest in non-disclo-

sure, and a showing of relevance, exhaustion of alter-

nate sources, and a compelling state interest in the in-

formation sought is of significant bearing, if not re-

quired. Yet, even a cursory reading of the majority

opinion below reveals the complete absence of such

particularized balancing. The entire opinion, other

than that portion which develops the factual issues in

the case, is devoted to a selective reading of all the

ease law in this area in an attempt to uncover the

weight of authority and logic relating to the existence

or non-existence of a newsman’s testimonial privilege

in a civil context. Very little of the opinion relates

the discernible law to the factual record, and there is

very little discussion, in the factual context of this

ease, of any compelling interest in disclosure, relev-

ance or exhaustion of alternate. sources. The Idaho

Supreme Court merely quotes, without further analy-

sis, the trial court’s conclusory discussion of these fac-

tors :

“The District Court opined:

‘I believe . . . every opportunity to get his case

into court must be given to the plaintiff ; and as a

consequence of that, I believe that the matter of

the identity of the police expert is material; it’s

relevant. It goes, if necessary, to the heart or the

crux of the plaintiff’s case, or may. On the other

hand, that information, when explored, may dis-

close insufficient information to su port the plain-

tiff’s case as against a Motion for Summary Judg-

ment that ... could be ruled upon if I reserve

judgment on your Motion for Summary Judg-

ment.’ ’’ Appendix A at 4a. (emphasis added) ).

This clearly falls short of the particularized ‘‘bal-

ance of these vital . . . interests on a case-by-case basis

[which] accords with the tried and traditional way of

adjudicating such questions.’’ Branzburg v. Hayes,

supra, at 710 (Powell, J., concurring opinion).

The court’s opinion below is also contradictory, if

not in error, in view of the fact that after concluding

that no testimonial privilege of either an absolute or

qualified nature exists, the court does not even explain

why the trial court specifically rejected Plaintiff’s re-

quest for discovery of answers to several ‘‘collateral’’

questions and limited its discovery order to three

questions. Petitioners respectfully submit that if, as

the majority opinion asserts, no absolute or qualified

privilege exists, ‘‘there should be no reason why the

plaintiff in this case is not afforded the broad discov-

ery given all parties in civil litigation under Rule 26

(b)(1)....’’ Appendix A at 24a; Bakes, J., dissenting

opinion.

II. DISCLOSURE OF A NEWSMAN’S CONFIDENTIAL

SOURCE, PURSUANT TO DISCOVERY IN CIVIL LITI-

GATION, MAY NOT BE COMPELLED IN THE AB-

SENCE OF FINDINGS THAT THERE DO NOT EXIST

ALTERNATIVE MEANS OF OBTAINING THE INFOR-

MATION AND THAT THERE IS A COMPELLING OR

OVERRIDING STATE INTEREST WHICH JUSTIFIES

[ SCLOSURE.

In upholding the order of contempt against Peti-

tioner Shelledy, the Supreme Court of Idaho affirmed

the lower court’s granting of a motion to compel dis-

closure of a newsman’s confidential source pursuant

to discovery in a civil libel suit despite the fact that

the lower court totally failed to make any findings as

to whether the information sought was available else-

where or whether such disclosure was mandated by a

compelling state interest which would justify the im-

pairment of First Amendment freedoms.

The forced disclosure of newsmen’s confidential

sources necessarily involves impairment of the First

Amendment guarantee of freedom of the press, for

such forced disclosure has an inhibitory effect on news-

gathering and on the reporting of that news which is

gathered :

Fear of exposure will cause dissidents to com-

municate less openly to trusted reporters. And,

fear of accountability will cause editors and

critics to write with more restrained pens.

Branzburg v. Hayes, 408 U.S. 665, 721 (1972)

(Douglas, J., dissenting opinion).

This Court has recognized that ‘‘newsgathering,’’ a

precursor to the question of disclosure, falls under the

protection of the First Amendment as a necessary

component of a free press: ‘“‘nor is it suggested that

newsgathering does not qualify for first amendment

protection; without some protection for seeking out

the news, freedom of the press could be eviscerated.”’

Branzburg v. Hayes, supra at 681.

Further, this Court has consistently held that it is

an essential precondition to any state regulation or

restriction of First Amendment freedoms that there

be a compelling state interest sufficient to justify the

limiting of First Amendment freedoms. See, NAACP

v. Button, 371 U.S. 415 (1963); DeGregory v. Attor-

ney General of New Hampshire, 383 U.S. 825 (1966) ;

NAACP v. Alabama, 357 U.S. 449 (1958).

In Branzburg v. Hayes, supra, this Court held that

a state’s interest in ‘“‘ensuring effective grand jury

proceedings,’’ through the compulsion of testimony

regarding the observation or commission of criminal

acts, was sufficiently compelling to permit the forced

disclosure of newsmen’s sources. Nevertheless, the

Court did acknowledge that such forced disclosure

might impose a ‘‘consequential, but uncertain, burden

on newsgathering,’? and the Court was careful to

strictly limit its holding to situations in which news-

men, before a grand jury, had knowledge of criminal

activity.

The instant case falls without the boundaries of the

Branzburg decision, and, therefore, as suggested by

the Branzburg majority, must be analyzed according

to the particular facts and particular constitutional

protections involved. In other words, the rights of a

civil litigant to have the testimony of an individual

must be balanced against the First Amendment right

of a newsman to refuse to disclose information per-

taining to his confidential sources.

The Supreme Court of Idaho totally failed to “‘bal-

ance the competing interests on their merits in [this]

particular case,’’ Branzburg v. Hayes, supra at 710

(Powell, J., concurring opinion), or to make the par-

ticular findings necessary to justify impairment of

First Amendment liberties. As discussed previously,

the Supreme Court of Idaho merely held that, under

Branzburg, no newsmen’s privilege exists in any cir-

cumstances. Rather than engaging in the appropri-

ate inquiry into the balancing of the competing inter-

ests and the necessity for disclosure, the court below

attempted to support its overbroad reading of Branz-

burg by reviewing those cases which, on the particu-

lar facts presented, denied an asserted newsman’s tes-

timonial privilege and by attempting to distinguish

those cases in which, although a proper balancing of

the competing interests may have been conducted, dis-

closure of a confidential news source was not required.

Appropriately, the Supreme Court of Idaho initi-

ates its analysis with a discussion of Garland v. Torre,

259 F.2d 545 (2d Cir.), cert. denied, 358 U.S. 910

(1958). In Garland, entertainer Judy Garland,

brought a libel action against Columbia Broadcasting

System alleging that C.B.S. had ‘authorized, re-

quested and induced’’ the publication of false and

defamatory statements in newspapers and elsewhere.

In an article written in the New York Herald Trib-

une by Marie Torre, remarks to the effect that Garland

was overweight were attributed to an unnamed C.B:S.

“*network executive.’’ Counsel for Garland then de-

posed Marie Torre and inquired concerning her

source. Miss Torre refused to answer, claiming a

First Amendment privilege. She was then held in

contempt. This contempt citation was affirmed by

the Second Circuit Court of Appeals in a decision

written by now Justice Stewart. In assessing this de-

cision, the Idaho Supreme Court notes:

“‘The argument was made therein, first, that a

newsman has an absolute privilege against disclo-

sure of confidential news sources which is pro-

tected by the First Amendment to the Constitu-

tion, secondly, that at least in certain circum-

stances a confidential news source is protected by

a qualified privilege. We read the opinion of

Mr. Justice Stewart as rejecting both alterna-

tives.’

Appendix A at 8a. (emphasis added.)

Far from deciding that these arguments were un-

tenable, the court in Garland merely found no abuse

of the trial judge’s discretion in refusing to issue a

protective order against discovery. Moreover, the

Garland court accepted ‘‘at the outset the hypothesis

that compulsory disclosure of a journalist’s confiden-

tial sources of information may entail an abridgement

of press freedom by imposing some limitation on the

availability of news.’’ 259 F.2d at 548. Beyond that,

the court noted that it was not

‘‘dealing with the use of the judicial process to

force a Saenie disclosure of a newspaper’s

confidential sources of news, nor with a case

where the identity of the news source is of doubt-

ful relevance or materiality.”” Id. at 549-550.

The court expressly based its decision upon the fact

that ‘‘the question asked of the appellant went to the

heart of the plaintiff’s claim.’’ Id. at 550. This is

due to the fact that C.B.S., in its answer, denied that

it had made the alleged false and defamatory state-

ments or caused them to be published. Thus, without

testimony from the undisclosed source, Garland would

have been unable even to establish a threshold element

of her case, publication by a defendant. In the instant

ease, the fact of publication by defendants Shelledy

and Tribune Publishing Company is not questioned.

Finally, in addition to its failure to note the strong

finding of relevance and materiality made by the

Garland court as a precondition to disclosure, the

Idaho Supreme Court totally ignored the Garland

court’s finding that, although it was possible that

Garland could have learned the identity of the report-

er’s informant elsewhere, the fact that plaintiff’s

‘reasonable efforts in that direction had met with

singular lack of success’? made disclosure more appro-

priate. Thus, in view of the Second Oircuit’s particu-

laristic balancing of First: Amendment freedoms

against the need for compelled disclosure, and its rec-

ognition that Garland did not involve ‘‘wholesale dis-

closure of a newspaper’s confidential sources’’ [259

F.2d at 549], it ean hardly be said that the Second

Circuit rejected the concept of a qualified privilege.

Rather, the court’s holding plainly assumes for pur-

poses of its decision that there may be situations

wherein a protective order should issue.

In cases subsequent to Garland, addressing the

question of discovery of a newsman’s confidential

source in the context of civil litigation, the courts have

consistently followed the Garland approach in deter-

mining whether disclosure should be required. In

Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972),

cert. denied, 409 U.S. 1125 (1973), the appellate court

affirmed the simultaneous denial of a motion to compel

disclosure of a confidential news source and grant of a

motion for summary judgment, stating that a minimal

precondition to compelled disclosure was ‘‘substantial

evidence tending to show that the defendant’s published

assertions are so inherently improbable that there are

strong reasons to doubt the veracity of the defense

informant or the accuracy of his reports ...’’ Id. at

994. The Supreme Court of Idaho, however, ignored

the holding in Cervantes and merely pointed to the

prefatory statement therein that the weight of prior

decisional authority did not admit of a privilege to

withhold the identity of news sources.

In Baker v. F&F Investment, 470 F.2d 778 (2d Cir.

1972), cert. demed, 411 U.S. 966 (1973), the Second

Cireuit affirmed the trial court’s decision not to order

ne of a newsman’s confidential sources, holding

“though a journalist’s right to protect confiden-

tial sources may not take prowedence over that rare

overriding and compelling interest [such as would

justify infringement of First Amendment rights],

we are of the view that there are circumstances, at

the very least in civil in which the public

interest in non-disclosure of a journalist’s confi-

dential source outweighs the public and private

interest in compelled testimony.’’ 470 F.2d at 783.

While recognizing that the Baker holding upheld the

newsman’s refusal to testify and expressly found that

the identity of the source was not necessary to the

plaintiff’s case, the court below attempted to distin-

guish Baker on the grounds that, there, applicable

state statutes protected journalists from forced dis-

closure. The court below ignored the above-quoted

language which recognized a constitutional shield, in

addition to any statutory shield.

In Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974),

although forced disclosure was upheld, the court ex-

pressly found that ‘‘the information sought appears to

go to the heart of appellee’s libel action, certainly the

most important factor in Garland.” 492 F.2d at 636

(emphasis added). Moreover, despite the fact that the

appellant had argued only the existence of an absolute

privilege against forced disclosure, the appellate court

engaged in an extensive Garland-type analysis and

balancing of the competing interests before affirming

the discovery order. The Supreme Court of Idaho was

content to observe that the Carey court denied the

existence of an absolute privilege (as it had to after

Branzburg) and upheld forced disclosure, failing to

pay heed to the Carey court’s careful consideration of

the surrounding facts, circumstances, and issues in-

volved.

Despite the Idaho Supreme Court’s endorsement

(and mischaracterization) of compelled disclosure in

Garland and Carey, and its attempt to factually distin-

guish Cervantes and Baker, those cases clearly advo-

cate a balancing of the need for disclosure against the

public interest in protecting confidential news sources

and a close scrutiny of each case on its own facts and

circumstances,

As noted by the dissenting opinion below, ‘‘the

balance is weighted in favor of the first amendment’”’

[Appendix A at 23a.] in those cases by requiring of

the party seeking disclosure a showing of a) relevance ;

b) exhaustion (or a reason why there should not be

exhaustion) of ,alternative sources; and ¢) a compel-

ling state interest in disclosure (i.e., a showing that

disclosure goes to the heart of the plaintiff’s case).

See also Loadholtz v. Fields, 389 F.Supp. 1299 (1975) ;

Democratic National Committee v. McCord, 356

F.Supp. 1394 (D.D.C. 1973) ; Gilbert v. Allied Chemi-

cal Corporation, 411 F.Supp. 505 (E.D.Va. 1976);

Buchanan vy. Cronkite, Civil No. 1087-73 (D.D.C.

1974) ; Brown v. Commonwealth, 204 S.E. 2d 429 (Va.

1974); State v. St. Peter, 315 A.2d 254 (Vt. 1974);

Morgan v. State, 337 So. 2d 951 (Fla. 1976).

At no point in the majority opinion is exhaustion of

alternate sources discussed. See, Garland v. Torre,

supra, at 551; Baker v. F&F Investment, supra at 784.

This requirement of exhaustion of alternate sources,

of course, is merely a corollary of the fundamental

principal that ‘‘even though the governmental pur-

pose [in restricting First Amendment freedoms] be

legitimate and substantial, that purpose cannot be

pursued by means that broadly stifle fundamental

personal liberties where the end can be more narrowly

achieved.’’ Shelton v. Tucker, 364 U.S. 479, 488

(1960) ; see also, Louisiana v. N.A.A.C.P., 366 U.S.

293, 296 (1961) ; Cantwell v. Connecticut, 310 U.S. 306,

307 (1940); Hynes v. Mayor and Council of the

Borough of Orodell, — U.S. —, 48 L.Ed.2d 243 (1976) ;

Nebraska Press Association v. Stuart, — U.S. —, 49

L.Hd.2d 683, at 700-701, 703, 705 (1976).

Moreover, the Idaho court does not state why dis-

closure, despite the impairment of First Amendment

freedoms occasioned thereby, is necessary in this parti-

cular case. The court merely quotes, from the tran-

script of the trial court’s hearing, comments by the

trial judge to the effect that facts obtained from the

confidential source, or proof that this source in fact

may not exist, ‘‘ ‘goes, if necessary, to the heart or the

crux of the plaintiff’s case, or may .... (TrA).’”’

Appendix A at 4a. Clearly such an equivocal finding of

a compelling interest in favor of disclosure of the iden-

tity of a confidential source fails to conform to the ap-

plicable standards set forth in Garland and its prog-

eny. As noted in Cervantes, before disclosure of a con-

fidential source is appropriate, there must be at least

some other evidence in the record of falsity or actual

malice: (

‘*Thus, if, in the course of pretrial discovery, an

allegedly libeled plaintiff uncovers substantial evi-

dence tending to show that the defendant’s pub-

lished assertions are so inherently improbable that

there are strong reasons to doubt the veracity of

the defense informant or the accuracy of his

reports, the reasons favoring compulsory disclo-

sure in advance of a ruling on the summaty judg-

ment motion should become more com

The point of principal importance is that there

must be a showing of cognizable prejudice before

the failure to permit examination of anonymous

sources can rise to the level of error. Mere specu-

lation or conjecture about the fruits of such

examination pe ater LD not suffice.”’ 464 F.2d at

994 (emphasis added

Your petitioner respectfully submits that the plain-

tiff Caldero has totally failed to ‘‘uncover substantial

evidence’ showing that the published comments of

Petitioner’s confidential source are ‘‘inherently im-

probable”? or of doubtful veracity. The allegedly

libelous comments merely express the opinion of the

confidential source relating to whether or not Caldero

was justifiably in grave fear of his life and thereby

warranted in shooting the fleeing suspect, Dale Johnson.

The factual basis upon which the opinion is based was

fully set forth elsewhere in the article. The accuracy

of this factual foundation is unchallenged. Moreover,

both the opinion of Petitioner’s confidential source and

the factual basis upon which that opinion is founded

are endorsed and corroborated elsewhere in the article

by the then Attorney General of Idaho, W. Anthony

Park who, as the state’s highest law enforcement offi-

cial, was ultimately responsible for Caldero’s actions.

The presence of independent corroboration thus

distinguishes this case from that in Carey v. Hume,

supra, and dilutes the allegedly ‘‘compelling interest’

in disclosure. See Carey v. Hume, 492 F.2d at 637-

638; Cervantes v. Time, 464 F.2d at 994.

The trial court, although it reserved ruling on the

defendants’ motion for summary judgment, staied

that, but for the pendency of the motion to compel, it

would have granted summary judgment on the

grounds of lack of proof or any showing of actual

malice. Apparently, the trial court believed that if,

through forced disclosure, it were established that the

‘*police expert’’ did not exist, then there would have

been an issue regarding actual malice. Not only is

such an approach contrary to the Cervantes holding

that mere speculation is insufficient to mandate dis-

closure, but also, the identity of the source could not be

critical in the absence of some basis in fact for the

plaintiff’s allegations.

Moreover, it is well established that liability for

libel can only be founded upon a false statement of

fact, sufficient in itself to forewarn the news dissemina-

tor of its defamatory content. Gertz v. Robert Welch,

Ine., 418 U.S. 323, 339-340 (1974); Sellers v. Time,

Inc., 423 F.2d 887, 890 (1970). A mere expression of

an opinion—readily perceivable as such—does not con-

stitute a basis for liability. Gertz v. Welch, supra;

Old Dominion Branch No. 496 v. Austin, 418 U.S. 264

(1974) ; Greenbelt Coop. Publ. Ass’n. vy. Bresler, 398

U.S. 6 (1970) ; Fram v. Yellow Cab Co., 380 F. Supp.

1314 (1974) ; Yorty v. Chandler, 13 Cal. App. 3d 469

‘soak 1 Hanson, Libel and Related Torts, par. 139

Clearly, the identity of the author of a particular

opinion cannot be deemed necessary or critical to a

Plaintiff’s case in a libel action when the underlying

factual basis for the opinion is also set forth in the

allegedly defamatory news article; when the opinion

is corroborated in the same news article by various

identified individuals; and when the opinion does not

constitute a substantial portion of the article in ques-

tion. Plaintiff, Caldero, therefore has failed to meet

the standard for compelling disclosure of confidential

news sources set forth in Garland and succeeding

cases.

In considering judicial restraints on the exercise of

First Amendment rights, this Court has consistently

stated that, before the exercise of such rights may be

restrained or punished, there must be a clear showing

that exercise of those rights poses a ‘‘serious and im-

minent threat to the administration of justice.’’ Craig

v. Harney, 331 U.S. 367, 373 (1947); see also, New

York Times Co. v. United States, 403 U.S. 713 (1971) ;

Schenck v. United States, 249 U.S. 47 (1919) (‘clear

and present danger’’ test). Additionally, this Court

has held that prior to issuing an order restraining

publication, a court must examine alternative meas-

ures which might mitigate the potential adverse effects

on publication and must find that such measures would

not be adequate. Nebraska Press Association Vv.

Stuart, — U.S. —, 49 L.Ed.2d 683, 700-01 (1976).

In a similar vein, before a court compels disclosure

of a newsman’s confidential source, it must examine

alternative sources for the information sought and

find either that such sources have been exhausted or

that recourse to such sources would be futile or impos-

sible; additionally, the courts must find that the in-

formation sought to be compelled goes to ‘‘the heart

of the plaintiff’s claim.”” The trial court below failed

to make such findings prior to ordering a disclosure of

Shelledy’s source, and, necessarily, the Supreme Court

of Idaho was unable to make such findings. Such find-

ings were an essential prerequisite to any determination

that, in the balance, the First Amendment right at

issue had to yield to an overriding state interest in the

presentation of testimony in civil litigation. In the

absence of such findings, it was an abuse of discretion

for the trial court to have issued the order of contempt

against Petitioner Shelledy.

Ill. IN CIVIL LIBEL CASES WHEREIN IT IS FOUND THAT

ALTERNATIVE SOURCES HAVE BEEN EXHAUSTED

AND THERE IS A COMPELLING STATE INTEREST

IN DISCLOSURE, THE TRIAL COURT MUST THEN

IMPLEMENT THE REMEDY LEAST DESTRUCTIVE

OF FIRST AMENDMENT RIGHTS

Your petitioners strongly assert that in those cases

where no privilege is found to exist under the Garland

standard the remedy least destructive of First Amend-

ment rights should then be utilized." See, Nebraska

1 For an extensive discussion and analysis of this issue, see, W.

Eckhardt, Jr. & A. McKey, Caldero v. Tribune Publishing Co.;

Substantive and Remedial Aspects of First Amendment Protection

for a Reporter’s Confidential Sources, 14 Ipano L. Rev. 1 (1977).

Press Association vy. Stuart, — U.S. —, 49 L.Hd.2d

683 (1976) ;.Coates v. Cincinnati, 402 U.S. 611 (1971) ;

Shelton v. Tucker, 364 U.S. 479 (1960) ; United States

v. Robel, 389 U.S. 258 (1967) ; Zwickler v. Koota, 389

U.S. 241 (1967).

In the instant case, the trial court’s failure to con-

sider alternative remedies less destructive of First

Amendment rights constituted abuse of discretion.

Other remedial measures which were available to

the district court upon Shelledy’s refusal to comply

with its discovery order appear in Rule 37(b)(2) of

the Idaho Rules of Civil Procedure (which is identical

to the corresponding Federal Rule). There it states

that upon the failure of a party to obey an order to

provide or permit discovery, ‘‘the court ... may make

such orders ...as are just.’’ Subsections (A) through

(D) of this rule list various examples of the kinds of

orders contemplated. A trial court, for instance, may

enter an order against a disobedient party which

establishes certain facts; which precludes raising a

particular «claim or defense; which prohibits the intro-

duction of certain specified evidence; which strikes

all or part of the pleadings; which stays the proceed-

ings; or which dismisses all or part of the proceedings

with prejudice. Finally, the rule contemplates punish-

ing or coercing behavior through contempt sanctions.

Cases dealing with remedial orders under Federal

Rule 37(b)(2) and its state counterparts show con-

siderable moderation and restraint. 8 Wright & Miller,

§ 2284 at 768-72; 4A J. Moore, Moore’s Federal Prac-

tice, 137, 63 [2.-5] at 3765-69 (1975). The courts have

sought to make the ‘‘punishment fit the crime” and

have ‘‘exercised their discretion in a fashion intended

to encourage discovery rather than simply to punish

for failure to make discovery.”’ 8 Wright & Miller,

§ 2284 at 772.

‘The purpose of discovery rules is to produce

evidence for the s y determination of the trial.

The office of 37(d) is to secure compliance with

the discovery rules, not to — erring parties.’’

Robinson v. Transamerica Insurance Co., 368 F.2d

37, 39 (10th Cir. 1966).

Contempt orders in particular have been used with

restraint :

‘Under most circumstances, orders under subdi-

visions (b)(2)(A) through (b)(2)(C) have

proved satisfactory, and the courts have rarely

employed contempt sanctions against parties.’’

3A Moore, supra at 137.03 [2.-6] at 3775.

This well established practice of leniency in meting

out sanctions under 37(b)(2) should be mandatory

where a harsher remedy such as a contempt order will

diminish fundamental constitutional rights under the

First Amendment.

The concept that Rule 37 imposes an obligation to

consider all alternative sanctions has been recognized

in an analogous context:

‘Rule 37 imposes on a court an obligation to exer-

cise reasoned discretion as to alternative sanc-

tions.”” In re Professional Hockey Antitrust

Tntigation, 531 F.2d 1188, 1192 (3rd Cir. 1976).

In the case cited above, the U. 8. Court of Appeals

for the Third Circuit reversed the dismissal of an

anti-trust action on the ground that the record con-

tained no showing that a'ternative sanctions had been

considered prior to imposition of the severe remedy

of dismissal. The court noted:

“The imposition of any sanction, although within

the trial court’s discretion . . . must be considered

in light of the Fifth Amendment’s due

clause. Society International v. Rogers, 357 U.S.

197, 209 (1958).’’ Id.

The First Amendment right jeopardized by dis-

closure of a confidential source is of equal stature with

the due process rights of the Fifth Amendment and

should be afforded the same procedural safeguards.

Petitioners assert that where First Amendment rights

may be diminished, as in the case where a contempt

order is imposed for non-disclosure, the court has an

obligation to consider all alternative sanctions and

select the one least destructive of First Amendment

freedoms.

Petitioners respectfully submit that both the Second

Judicial District Court and the Supreme Court of

Idaho have unnecessarily and inappropriately permit-

ted this cause of action to develop into its present pos-

ture—a posture which creates a needless confrontation

between plaintiff’s legitimate right to discovery and

the publie’s legitimate First Amendment interest in

non-disclosure of the identity of a newsman’s confi-

dential news source. Had the trial court elected to ex-

ercise its discretion to employ any of the less drastic

remedies available under Rule 37(b)(2)—as, for in-

stance, an order either conditionally or conclusively

establishing the fact that the source referred to by

Shelledy in the article did not exist—Caldero, although

benefitting at trial from such an order, would still have

been put to the proof of his claim without overriding

Shelledy’s right to, and the public interest in non-dis-

closure of, the identity of a confidential news source.

In addition, Petitioners would not be denied their day

in court on other issues in the case to which the exist-

ence of an informant would have no relevance.

The federal cuurts’ have explicitly recognized the

use of a conditional finding of fact in lieu of more

severe remedies. In Reynolds v. U.S., 192 F.2d 987

(3rd Cir. 1951), rev’d, on other grounds, 345 U.S. 1

(1953), the Third Circuit affirmed a district court

decision which approved the application of Rule 37(b)

(2)(1) establishing certain facts in the absence of a

valid claim of privilege under Rule 34 of the Federal

Rules of Civil Procedure.

Reynolds involved a wrongful death action brought

against the United States Government as a result of

the crash of a military aircraft. Plaintiffs moved for

discovery of the official report of the accident under

Rule 34. The Government filed a formal claim of

privilege in response, stating that the report contained

military secrets.

The District Court then ordered that the facts on

the issue of negligence would be taken as established

and the Third Oircuit affirmed after final judgment

had been entered for the plaintiff. This Court re-

versed on the ground that the Government had right-

fully asserted a valid claim of privilege, but did so

without criticism of the appropriateness of the

remedy.”

2“*The judgment in this case imposed liability upon the Gov-

ernment by operation of Rule 37, for refusal to produce docu-

ments under Rule 34. Since Rule 34 compels production only

of matters ‘not privileged’ the essential question is whether

there was a valid claim of privilege under the Rule. We hold

It is submitted that the remedy least destructive of

First Amendment rights on the facts of Caldero would

have been the remedy employed by the district court in

Reynolds— an order under Rule 37(b)(2)(A) estab-

lishing either conditionally or conclusively the fact

that the source referred to in the article by Shelledy

did not exist. The only effect of such an order—as-

suming that summary judgment was not still appro-

priate on the issue of actual malice under the rule of

New York Times vy. Sullwan—would have been to

cause a denial of summary judgment, sending the case

to trial. At trial, the trier of fact would have then

been free to consider whether the absence of a source,

coupled with other evidence, met the standard of ac-

tual malice. Actual malice was the appropriate stan-

dard since the trial judge had already determined that

Caldero was a public official. |

Application of this remedy would allow the press

to retain control over the decision whether to disclose

without being faced with the highly coercive prospect

of imprisonment for contempt.

This Oourt has explicitly recognized that where

First Amendment rights may be endangered, any con-

flicting legislative or judicial interests must be imple-

that there was... .’’ United States v. Reynolds, 345 U.S. 1,

6 (1953).

Thus, this decision implies that in the absence of a valid claim

of privileges, Rule 37(b)(2)(1) may operate to establish facts in

the plaintiff’s favor.

It is also significant that the Court noted that the necessity for

producing the documents was greatly minimized by the offer of

the government to produce the surviving erew members and per-

rit them to testify, in effect, recognizing that the plaintiff should

exhaust alternative sources before disclosure would be required.

mented by the least restrictive means available. In

Nebraska Press Association v. Stuart, — U.S. —, 49

L.Ed.2d 683 (1976), this Court dealt with the question

of whether a prior restraint in the form of a gag order

designed to protect a criminal defendant’s Sixth

Amendment rights to a fair trial violated the First

Amendment. In determining that the gravity of the

‘tevil’’ discounted by its improbability did not justify

the invasion of the right of a free press, this Court ex-

amined three factors: ‘‘(a) the nature and extent of

pre-trial news coverage; (b) whether other measures

would be likely to mitigate the effects of unrestrained

pre-trial publicity; (c) how effectively a restraining

order would operate to prevent the threatened dan-

ger.’’ — U.S. at —, 49, L.Ed.2d at 683.

The gag order was found to violate the First Amend-

ment for several reasons including the trial court’s

failure to make explicit findings that other remedial

alternatives less damaging to First Amendment values

would have been ineffective. — US. at —, 94 L.Ed.2d

at 701. See also, Sheppard v. Maxwell, 384 U.S. 333

at 357-362 (1966).

Petitioners assert that no reporter should be im-

prisoned for contempt based on the refusal to disclose a

source in a civil case without similar findings that less

restrictive measures such as those alternatives enum-

erated in Rule 37(b)(2) of the Idaho Rules of Civil

Procedure would prove unavailing.

This Court has held elsewhere that where First

Amendment rights may be abridged, the least restric-

tive measures must always be implemented though the

restraint imposed was indirect and did not involve a

prior restraint. In United States v. Robel, 389 U.S.

258 a Chief Justice Warren, writing for the

“Our decision today simply recognizes that, when

legitimate concerns are expressed in a statute

which imposes a substantial burden on protected

es,

chieve its goals by means which have a ‘less drastic’

impact on the continued vitality of First Amend-

ment freedoms.’”’ 389 U.S. at

See also, Shelton v. Tucker, 364 U.S. 479, 488 (1960).

Both Robel and Shelton, (unlike Nebraska Press),

involved indirect restraints on protected First Amend-

ment rights (freedom of association) rather than a

prior restraint. The negative effect on newsgathering

caused by disclosure herein is a similar indirect re-

straint. Moreover, in neither Rcbel nor Shelton was

empirical proof of the impairment of First Amend-

ment rights required. See, Branzburg v. Hayes, 408

US. at 733 (Stewart, J., Dissenting.)

Moreover, the remedy of imprisonment for contempt

is far less likely to be effective than the proposed

remedy under Rule 37(b)(2)(A). Where Firet

Avoendment rights are jeopardized, remedies of doubt-

ful efficacy should not be employed. This principle was

explicitly recognized in Nebraska Press Association

v. Stewart:

‘“We must assess the probable effi of prior re-

straint on publication as a workab method of

protecting Simants’ right to a fair trial, and we

cannot ignore the reality of the problems of man-

aging and rt “ay pretrial restraining orders.”

49 L.Ed.2d at 701

Substantial empirical evidence indicates that the

remedy of imprisonment for contempt is unlikely to be

effective. Between March, 1973 and October, 1976,

twenty-one reporters were cited for contempt in this

country. Only seven ultimately disclosed their sources.

Twelve reporters were jailed and later released when

it became apparent that they would not disclose their

sources.°

Two cases in particular have focused national atten-

tion on confrontations between the courts and the press.

In Rosato v. Superior Court of Fresno County, 51 Cal.

App. 3d, 190, 124 Cal. Reptr. 427 (1975), cert. denied,

— U.S. —, 96 S.Ct 3200 (1976), four reporters from

the Fresno Bee were sentenced to indefinite coercive

jail terms The California Supreme Court upheld the

sentences. The men were eventually released because

the sentencing judge decided ‘‘they had acted in good

faith and continued imprisonment would not cause

them to reveal their sources.’’ A similar fact pattern

occurred in the Farr eases. Farr v. Superior Court,

22 Cal. App. 3d 59, 99 Cal. Rptr. 342 (2d Dist. 1971) ;

In re Farr, 36 Cal. App. 3d 577, 111 Cal. Rptr. 649

(2d Dist. 1974); Farr v. Pitchess, 522 F.2d 464 (9th

Cir. 1975), cert. denied, — U.S. —, 49 L.Ed.2d 1203

(1976). Farr also received a coercive contempt cita-

tion for refusing to reveal the source of information

concerning the Manson murder trial. Farr was ulti-

mately released from imprisonment because the sen-

tencing court thought that further punishment would

not produce testumony. }

See, Press Censorsuip News.errer, March, 1973—October,

1976. A survey of this source over the time period indicated also

reveals that an aggregate of 133 subpoenas were issued in civil and

criminal cases. Of these, thirty-five were issued in federal court

while ninety-eight were issued in state courts.

Recent cases clearly suggest that imprisonment for

contempt is more likely to lead to martyrdom than

disclosure. Reporters have demonstrated considerable

fortitude in this regard. As a consequence, coercive

contempt citations have resulted in damaging confron-

tations between the press and the courts—confron-

tations which can be easily avoided in cases such as

the instant case. The conclusion that contempt has not

been and is not likely to be an effective remedy is in-

escapable.

Notwithstanding its ineffectiveness, contempt can be

exceedingly costly—both economically and in terms of

detrimental effects on the media and judicial institu-

tions. Contempt citations have resulted in extensive

delays in the discovery process inflicting high costs on

all parties and consuming judicial time.

Perhaps more importantly, confrontations between

the press and the judiciary present the public with a

spectacle of a standoff between an apparently ineffec-

tive court system and a defiant press. Neither image

is likely to inspire great public confidence and respect.

The media and the judiciary are both institutions

which are fundamental to our democratic system. Our

Constitution and the First Amendment make this clear.

We, therefore, suffer considerable social damage as a

consequence of our collective inability to provide prin-

cipled and orderly solutions to these standoffs. As a

matter of policy, such confrontations should be avoided

whenever any viable alternative exists. Moreover, the

First Amendment mandates that the ‘‘least destruc-

tive’? means be employed. In some cases, contempt

may be unavoidable. In cases like Caldero, there are

effective alternatives.

In light of the clear advantage of the suggested Rule

37(b) (2) (A) remedy and the strong First Amendment

interest present in Caldero and in view of the basic

command of Rule 37(b) (2) to ‘‘make such orders...

as are just’’, we respectfully submit that the trial court

abused its discretion in selecting the contempt remedy

without considering the available alternatives. Peti-

tioners submit that the First Amendment requires a

trial court to consider all remedial alternatives under

Rule 37(b)(2) and adopt the one least destructive of

First Amendment freedoms.

CONCLUSION

For the reasons aforesaid, it is respectfully prayed

that a writ of certiorari be granted to review the judg-

ment of the Supreme Court of the State of Idaho.

Respectfully submitted,

ARTHUR B. HANnson

FRANK M. NorTHAM

MiTcHELL W. DALE

888 Seventeenth Street, N.W.

Washington, D. C. 20006

REED CLEMENTS

13th and Idaho Streets

Post Office Box 338

Lewiston, Idaho 83501

APPENDIX

APPENDIX A

IN THE SUPREME COURT OF THE STATE OF IDAHO

Micuar. A. CaxpeRo, Feeintiff-Respondent

Tripune PusiisHine Company and James FE. SHELLEDY,

Defendant-A ppellants.

In Re SHELLEDY

SHeEparpD, J.

This is an appeal from an order, judgment, and sen-

tence of and for contempt resulting from a newsman’s

refusal to disclose the identity of an informant. The ex-

istence and/or extent of a constitutionally based privilege

from such disclosure is one of first impression in this

jurisdiction.

Michael Caldero instituted an action in libel against the

Tribune Publishiig Company based on an article printed

in the November 23, 1973, issue of the Lewiston Morning

Tribune. The substance of the complaint was that the

article contained ‘‘an unfair, false and malicious account’’

of an incident involving respondent while he was em-

ployed as an undercover agent for the Idaho Bureau of

Narcotic Enforcement.

The article purported to describe in detail an incident

of August 27, 1972, when Caldero and another agent were

in a public park in Coeur d’Alene, Idaho, and in the

process of an arrest of one Booth who had attempted to

sell them narcotics. Booth was in the company of one

Johnson and when an altercation ensued between Booth

and the two agents, Johnson attempted to exit the scene

in a vehicle. Although the precise facts are unclear and in

dispute, it is at least agreed that Caldero fired three

shots through the windshield of the Johnson-driven ve-

hicle, two of which struck and injured Johnson.

The Tribune article in question appeared more than a

year after the event under the by-line of Jay Shelledy

and had as its focus the professional propriety of Cal-

dero’s conduct. Caldero claimed that ‘‘he fired in self-

defense; that Johnson tried to run him down.’’ In the

article Caldero’s assertion was contrasted with statements

from an eyewitness and general observations from the

county prosecutor and the State Attorney General. The

following statements of principal interest here were at-

tributed to an undisclosed ‘‘police expert’’, i.e.:

‘‘One police expert, in an off-the-record interview

with the Tribune, said Caldero’s justification for

shooting didn’t add up. His reasoaing was derived

mainly from logistical facts:

‘‘_Tt was more than 90 minutes after sundown so

the lighting was too poor to see Caldero’s wallet

badge at a distance greater than a few yards.

‘‘__The distance between Caldero and Johnson’s car

when Johnson pulled out of the parking stall was not

sufficient for the vehicle to have picked up much

speed, especially since the tires were not getting trac-

tion in the loose gravel. Even the slowest agent could

have stepped out of the way, unless he was deter-

mined to throw himself in front of the car to physi-

cally stop it. (Witnesses estimate the speed of the

ear at less than 10 m.p.h. when the shots were fired.)

‘‘Caldero didn’t have time to pull out his gun while

running toward the car, dig out his wallet and show

his badge, get out of the way of the car, replace his

wallet and fire three shots with both hands on the

gun as police are taught to fire.

‘‘The position of the bullet holes and angle at which

Johnson was hit put Caldero adjacent to the left

front tire when he fired. Therefore, the car had

missed him and he was in no apparent danger and in

good position to shoot the tires out if he felt he had

to fire his gun.

**But Booth’s sale and Johnson’s accomplice’s role

were not ‘shooting’ offenses. Caldero’s only justifica-

tion would be to maintain his life was in grave dan-

ger. Otherwise, it would be a case of a young police-

man who panicked, or who became carried away.’’

Following the institution of the Caldero action, the

Tribune filed an answer thereto and counsel for both par-

ties proceeded to take depositions in the course of dis-

covery. In that process Shelledy was deposed and ques-

tions were asked by counsel pertaining to the portion of

the article on the opinion of the ‘‘police expert.’’ Shelledy

directly refused to answer questions which would in his

opinion either reveal or lead to the identity of the source

of the information. Shelledy thereafter was added as a

party to the action together with an amended claim of

invasion of privacy.

Shelledy was the subject of a motion to compel answers

and the defendants filed a motion for summary judgment.

Both motions were subject to a hearing at the conclusion

of which the court ordered disclosure by Shelledy and

reserved ruling on the summary judgment motion. The

court entered an order which directed Shelledy to appear

and answer three questions:

**1. Who is the person identified as the ‘police expert’

in the subject article?

**2. What was the time and place of the conversation

between the deponent and the police expert?

**3. What did the police expert say, and what infor-

mation did the police expert relate to the deponent,

during the conversation or any other?’’

The court, in reserving ruling on defendants’ summary

judgment motion, indulged in the following colloquy:

‘‘Mr. Crements (Defendants’ attorney): * * * [A]s-

suming that you would satisfy yourself, that the

source existed, that the source gave the information

to Mr. Shelledy, by way of his opinion as reported

* * * would you feel that in this case there would

be actual malice?

‘‘Tae Court: My feeling would be at that point—

and prior to today at least—that under those facts,

I would grant summary judgment. However, I must

say because Mr. Shoemaker (plaintiff’s counsel). was

so strong and positive on his reading of KTVB, I

would want, before I make such a ruling, I’d go back

and look at that again * * *.”’

Apparently, plaintiffs counsel had argued to the district

court that Taylor v. KTVB, 96 Idaho 202, 525 P.2d 984

(1974), holds that ‘‘malice’’ may be inferred from a pub-

lication which fails to distinguish mere opinion from fact.

Parenthetically, we note that we do not read that case as

so holding. See Gertz v. Robert Welch, Inc., 418 U.S. 323

(1974). The district court opined:

“‘T believe * * * every opportunity to get his case

into court must be given to the plaintiff; and as a

consequence of that, I believe that the matter of the

identity of the police expert is material; it’s relevant.

It goes, if necessary, to the heart or the crux of the

plaintiff’s case, or may. On the other hand, that infor-

mation, when explored, may disclose insufficient infor-

mation to support the plaintiff’s case as against a

Motion for Summary Judgment that * * * could be

ruled upon if I reserve judgment on your Motion for

Summary Judgment.’”’ (Tr. 4.)

Shelledy was again deposed and with respect to ques-

tions two and three of the court order, he indicated that

the conversation took place by telephone approximately

ten days prior to publication of the article. He explained

to his anonymous source the circumstances surrounding

the shooting incident as they had been revealed by his in-

vestigation and the anonymous source opined that under

those circumstances in retrospect, Caldero’s life was not

in danger at the time of the shooting. Collateral questions

which had been put to the appellant were rejected by the

district court as being beyond the scope of his order,

Upon being asked the identity of the police expert,

Shelledy read a statement declaring his refusal to answer

was based upon the First Amendment of the United

States Constitution and his professional code of ethics.

Whereupon after being advised of the consequence of his

conduct, he was judged in contempt and ordered incar-

cerated for a period of 30 days. It was ordered that

thereafter he would be re-examined as to the identity and

source of his information. Upon order, the execution of

that judgment has been stayed pending this appeal.

We note at the beginning of our analysis:

‘*In 1958, a news gatherer asserted for the first time

that the First Amendment exempted confidential in-

formation from public disclosure pursuant to a sub-

poena issued in a civil suit, * * *.’? Branzburg v.

Hayes, 408 U.S. 665 at 685.

In a general context Idaho’s statutory scheme contem-

plates :

‘*All persons, without exception, otherwise than is

specified at the next two sections, who, having organs

of sense, can perceive, and perceiving, can make

known their perception to others, may be witnesses.”’

LC, § 9-201.

‘*A witness, served with a subpoena, must attend at

the time appointed, with any papers under his control,

required by the subpoena, and answer all pertinent

and legal questions, and, unless sooner discharged,

must remain until the testimony is closed.’”’ LC.

§ 9-1301.

I.C. § 9-202 proscribes testimony from persons who are

of unsound mind, under ten years of age and certain per-

sons seeking to testify as to communications occurring

before the death of a deceased person.

I.C. § 9-203 provides:

‘‘There are particular relations in which it is the

policy of the law to encourage confidence and to pre-

serve it inviolate; therefore, a person cannot be ex-

amined as a witness in the following cases: * * *.’’

Thereafter are proscribed certain communications be-

tween husband and wife, attorney and client, clergyman

or priest and confessor, physician-patient, communications

to a public officer under certain circumstnaces, counselor-

student, certain communications between parent and child.

We note that such statutory scheme has been considered

and amended by our legislature as recently as 1972.

It is clear that appellant here falls within the clear re-

quirement that he appear and testify and that his asserted

privilege is not recognized nor is he excused from testify-

ing under our statutes. It is not necessary and we do not

examine any question as to conflict between any future

rule of this Court and a statutory privilege. See, R. E. W.

Construction Co. v. District Court of Third Judicial Dist.,

88 Idaho 426, 400 P.2d 390 (1965).

The general theory of the law and of the commentators

has been that new testimonial privileges are disfavored

since they obstruct the search for the truth. Wigmore has

condemned the privileges as being derogations from the

positive general rule that everyone is obliged to testify

when properly summoned, and that privileges are obstacles

to the administration of justice. 8 Wigmore, On Evidence,

§ 2192 (McNaughton’s revision 1961). See also, MeCor-

mick, Evidence, 159 (2d ed. 1972). As stated in the preface

to the American Law Institute’s Model Code of Evidence,

page 7: ‘‘Such a privilege suppresses valuable evidence

to which the trier of the fact is competent to give its

proper weight.’’ To paraphrase Learned Hand in McMann

v. Securities and Exchange Admin., 87 F.2d 377 (C.A. 2d

Cir. 1937), we are not faced with one who is a client, a

penitent, a patient or a spouse and since testimonial privi-

leges are based upon specified confidential relationships,

— by contract, express or implied, can abridge public

ties.

A number of states provide newsmen a statutory privi-

lege of varying nature,’ but none has been provided in

Idaho. Although often introduced, no such privilege has

been provided by a federal statute.

We come then to appellant’s major contention that he

cannot be compelled to disclose the information sought

here because of the freedom of the press guaranteed by

the First Amendment to the Federal Constitution. It is

argued that the disclosure of information acquired by a

+ Of interest is the Indiana statute which was amended in 1973

to eliminate the previous requirement that to qualify for the privi-

lege a journalist must be employed by a newspaper having a cer-

tain circulation and a five-year longevity. Ind.Stat. Ann. § 34-3-5-1

(Supp. 1973). See also, Ala. Code tit. 7, §370 (1960); Alaska

Comp. Laws Ann. §§ 09.25.150-.220 (1973) ; Ariz. Rev. Stat. Ann.

§ 12-2237 (Supp. 1976); Ark. Stat. Ann. § 43-917 (1964); Cal.

Evid. Code § 1070 (West Supp. 1976) ; Ill. Ann. Stat. ch. 51, § 111

(Supp. 1972) ; Ky. Rev. Stat. § 421.100 (1972); La. Rev. Stat. tit.

44, §§ 1451-1454 (Supp. 1972) ; Md. Ann. Code art 35, § 2 (1965) ;

Mich. Comp. Laws Ann. § 767.5a (1968); Mont. Rev. Codes Ann.

tit. 93, §§ 601-1-602-2 (1964); Nev. Rev. Stat. tit. 4, § 49-275

(1975) ; N.J.Stat. Ann. § 2A :84A-21 (1976) ; N.M. Stat. Ann. § 20-

1-12.1 (Supp. 1975); N.Y. Civil Rights Law §79-h (McKinney

1976) ; Ohio Rev. Code Ann. §§ 2739.04, 2739.12 (1971) ; Pa. Stat.

Ann. tit. 28, § 330 (Supp. 1976).

newsman from a confidential source would have a ‘‘chill-

ing effect’? on the ability of newsmen to utilize confiden-

tial sources and thus inhibit the media’s ability to gather

news and inform the public, all in violation of the First

Amendment guaranty.

In 1958 the entertainer Judy Garland brought an action

against Columbia Broadcasting System. Garland v. Torre,

259 F.2d 545 (1958), cert. den. 358 U.S. 910, 79 S.Ct. 237.

There, as here, plaintiff alleged false and defamatory

statements published in newspapers. There, as here, dur-

ing pretrial discovery proceedings Torre refused to di-

vulge the name of a ‘‘network executive’’ to which the

publication had referred as the source of certain state-

ments. The witness refused to divulge, was held in con-

tempt and the appeal followed. The opinion of that court

was delivered by Potter Stewart, then sitting as a circuit

judge. The argument was made therein, first that a news-

man has an absolute privilege against disclosure of confi-

dential sources which is protected by the First Amend-

ment to the Constitution, and secondly, that at least in

certain circumstances a confidential news source is pro-

tected by a qualified privilege. We read the opinion of Mr.

Justice Stewart as rejecting both alternatives. As he

stated :

‘‘Freedom of the press, hard won over the centuries

by men of courage, is basic to a free society. But basic

too are courts of justice, armed with the power to

discover truth. The concept that it is the duty of a

witness to testify in a court of law has roots fully as

deep in our history as does the guarantee of a free

press.

‘‘Tt would be a needless exercise in pedantry to review

here the historic development of that duty. Suffice it

to state that at the foundation of the Republic the ob-

ligation of a witness to testify and the correlative

right of a litigant to enlist judicial compulsion of tes-

timony were recognized as incidents of judicial power

of the United States. [citations omitted] Whether or

not the power to invoke this judicial power be con-

sidered an element of Fifth Amendment due process

its essentiality to the fabric of our society is beyond

controversy. As Chief Justice Hughes put it: ‘One of

the duties which the citizen owes to his government is

to support the administration of justice by attending

its courts and giving his testimony whenever he is

properly summoned.’

“Tf an additional First Amendment liberty—the

freedom of the press—is here involved, we do not

hesitate to conclude that it too must give place under

the constitution to a paramount public interest in the

fair administration of justice. ‘The right to sue and

defend in the courts is the alternative of force. In an

organized society it is the right conservative of all

others, and lies at the foundation of orderly govern-

ment.’ ”’

Although certiorari was denied, 358 U.S. 910, and we

are not to speculate thereon, nevertheless, we deem it sig-

nificant that Garland v. Torre was cited in the opinion of

Mr. Justice White in Branzburg v. Hayes, 408 U.S. 665,

92 S ..*. 2646 (1972), but is strangely missing in the dis-

sent authored by Mr. Justice Stewart.

Except as noted above we find ourselves without guid-

ance in the United States Supreme Court decisions in

cases involving a newsman’s refusal to divulge confiden-

tial informants in the course of civil litigation. Both par-

ties hereto rely upon and cite heavily from Branzburg v.

Hayes, supra. That decision involved a trilogy of cases

(Pappas, Caldwell and Branzburg), all of which were cast

in the context of the refusal of newsmen to divulge sources

of confidential information and/or information received

under a confidential agreement when subpoenaed to ap-

pear before a grand jury.

ea ee

10a

There, as here, it was argued that the First Amendment

insulated completely or to a limited degree a newsman

divulging confidential sources or confidential information.

In the lower courts the assertion of the petitioners, Branz-

burg and Pappas, were rejected and that rejection of the

privilege was upheld on appeal. In the third case, Cald-

well, the Ninth Circuit had upheld the petitioner’s claim

of privilege holding that absent some special showing of

necessity he was insulated from disclosure on the basis of

the First Amendment. In Caldwell, that decision of the

Ninth Circuit Court of Appeals was reversed.

While as noted above, Branzburg was cast in the crim-

inal area and testimony before a grand jury, nevertheless,

we deem certain language therein to be of guidance. It

was stated by Mr. Justice White:

‘‘Until now the only testimonial privilege for unoffi-

cial witnesses that is rooted in the federal constitu-

tion is the Fifth Amendment privilege against com-

pelled self-incrimination. We are asked to create an-

other by interpreting the First Amendment to grant

newsmen a testimonial privilege that other citizens do

not enjoy. This we decline to do.

‘‘We are admonished that refusal to provide a First

Amendment reporter’s privilege will undermine the

freedom of the press to collect and disseminate news.

But this is not the lesson history teaches us. As noted

previously, the common law recognized no such privi-

lege, and the constitutional argument was not even

asserted until 1958. From the beginnings of our

country the press has operated without constitutional

protection for press informants, and the press has

flourished. The existing constitutional rules have not

been a serious obstacle to either the development or

retention of confidential news sources by the press.

* * * Tf newsmen’s confidential sources are as sensi-

lla

tive as they are claimed to be, the prospect of being

unmasked whenever a judge determines the situation

justifies it, is hardly a satisfactory solution to the

problem. For them, it would appear that only an ab-

solute privilege would suffice.

‘We are unwilling to embark the judiciary on a long

and difficult journey to such an uncertain destination.

The administration of a constitutional newsman’s

privilege would present practical and conceptual diff-

culties of a high order. Sooner or later, it would be

necessary to define those categories of newsmen who

qualified for the privilege, a questionable procedure

in light of the traditional doctrine that liberty of the

press is the right of the lonely pamphleteer who uses

carbon paper or a mimeograph just as much as of the

large metropolitan publisher who utilizes the latest

photocomposition methods.’’ 408 U.S. at 689-690,

698-699, 702-704.

Four of the Justices, Stewart, Brennan, Marshall and

Douglas dissented. Mr. Justice Powell filed a special con-

curring opinion and it is argued that such detracts from

the conclusiveness of the plurality opinion. We do not

agree. Mr. Justice Powell concurred in the opinion of the

Court written by Mr. Justice White and while the Powell

special concurring opinion is brief and somewhat enig-

matic, we read it only to state that if an ‘‘investigation is

not being conducted in good faith [the newsman] is not

without remedy.’’

Although in different contexts, the United States Su-

preme Court has prior to Branzburg used strong and com-

pelling language regarding asserted derogations of the

testimonial privilege. In United States v. Bryan, 339 U.S.

323 (1950), the Court stated:

‘*On the other hand, persons summoned as witnesses

by competent authority have certain minimum duties

12a

and obligations which are necessary concessions to

the public interest in the orderly operation of legisla-

tive and judicial machinery. A subpoena has never

been treated as an invitation to a game of hare and

hounds, in which the witness must testify only if cor-

nered at the end of the chase. If that were the case,

then, indeed, the great power of testimonial compul-

sion, so necessary to the effective functioning of

courts and legislatures, wor »e a nullity. We have

ften iterated the import’. of this public duty,

which every person within the jurisdiction of the gov-

ernment is bound to perform when properly sum-

moned.”’

In Blackmer v. United States, 284 U.S. 421 (1932), the

Court stated:

‘*Tt is also beyond controversy that one of the duties

the citizen owes to his government is to support the

administration of justice by attending its courts and

giving his testimony whenever he is properly sum-

moned.,”’

As recently as 1974 the Court handed down its historic

decision in United States v. Nixon, 418 U.S. 683, in which

the Court affirmed the ‘‘ancient proposition of law’’ stated

in Blackmer, Brian and Branzburg ‘‘that the public has a

right to every man’s evidence, except for those persons

protected by a constitutional, common law, or statutory

privilege, * * * ’’ The Court also stated:

‘‘The need to develop all relevant facts in the adver-

sary system is both fundamental and comprehensive.

* * * The very integrity of the judicial system and

public confidence in the system depend on full dis-

closure of all the facts, within the framework of the

rules of evidence. To insure that justice is done, it is

imperative to the function of courts that compulsory

process be available for the production of evidence

13a

needed either by the prosecution or by the defense.

* * * Whatever their origins, these exceptions to the

demand for every man’s evidence are not lightly cre-

ated nor expansively construed, for they are in dero-

gation of the search for truth.’’

Also in 1974 in Pell v. Procunier, 417 U.S. 817 (1974),

the Court said:

“‘The Court there [Branzburg] could ‘perceive no

basis for holding that the public interest in law en-

forcement and in ensuring effective grand jury pro-

ceedings [was] insufficient to override the consequen-

tial, but uncertain, burden on news gathering that is

said to result from insisting that reporters like other

citizens, respond to relevant questions put to them in

the course of a valid grand jury investigation or crim-

inal trial.’’’ 417 U.S. at 833.

Therefore our reading of Branzburg v. Hayes, supra,

is to the effect that no newsman’s privilege against dis-

closure of confidential sources founded on the First

Amendment exists in an absolute or qualified version.

The only restrictions against compelled disclosure appear

to be in those cases where it is demonstrably intended to

unnecessarily harrass members of the news media on a

broad scale by means of having an unnecessary impact on

protected rights of speech, press or association.

The appellant commends to our attention the decisions

of United States Courts of Appeals, Baker v. F & F In-

vestment, 470 F.2d 778 (2d Cir. 1972) cert. denied, 411

U.S. 966; and Cervantes v. Time, Inc., 464 F.2d 986 (8th

Cir. 1972) cert. denied, 409 U.S. 1125. We conclude that

each may be distinguished from the present case in sev-

eral respects. Baker involved an appeal from a trial

court’s interlocutory refusal to compel a journalist to dis-

close the identity of a source. On appeal the Court noted

EE TE ENE

l4a

that the journalist was not a party to the underlying ac-

tion and that there was no showing that the identity of

the source was necessary to plaintiff’s case. The Court

there emphasized that a ruling on a discovery motion is

discretionary and therefore would only be reviewed on a

showing of abuse of discretion. Lastly and perhaps most

importantly, although that action was in federal court, the

laws of two states were relevant. The action was pending

in the federal court for Dlinois and the discovery motion

was heard in the federal court for New York. Both Iili-

nois and New York had enacted legislation protecting

journalists from forced disclosure of their sources. N.Y.

Civil Rights Law §79-H (McKinney’s 1976); Ch. 51 Til.

Rev. Stat. § 111 et seq. (1971).

Cervantes was a diversity case in the federal court

brought for libel against a national magazine. The re-

porter who wrote the allegedly libelous material was de-

posed at pre-trial but refused to reveal the identity of

condential informants within the United States Depart-

ment of Justice. Prior to the time of reaching the merits

of the discovery motion, the trial court granted a motion

for summary judgment. The Court on appeal concluded

that the refusal to require disclosure was not reversible

error and affirmed the lower court’s summary judgment

rendered against plaintiff. In passing, the Court in Cer-

vantes acknowledged that ‘‘the weight of decisional au-

thority holds that newsmen do not have a First Amend-

ment privilege to withhold news sources.’’ 464 F.2d at

992. As was stated in Dow Jones & Co., Inc. v. Superior

Court, 303 N.E.2d 847 (Mass. 1973):

‘‘We refuse to extrapolate from the Cervantes deci-

sion a requirement that, because in libel actions under

federal procedures it is possible to obtain a judgment

on the merits before the discovery issue is ruled on,

therefore in libel actions in our courts discovery of a

newsman’s sources cannot be ordered without a pre-

15a

liminary evaluation of the probable results on the

merits.’’ at 851.

We move then to consideration of our own Constitution,

Art. I, § 9, guaranteeing the freedom of speech and press.

We do so in view of the language of Branzburg stating:

**It goes without saying, of course, that we are power-

less to bar state courts from responding in their own

way and construing their own constitutions so as to

recognize a newsman’s privilege either qualified or

absolute.’’

Art. I, § 9, of our Constitution provides:

‘*Every person may freely speak, write and publish

on all subjects, being responsible for the abuse of that

liberty.’’

That provision of our Constitution has seldom been con-

sidered by this Court since McDougall v. Sheridan 23

Idaho 191, 128 P. 954 (1913), which although of historical

interest, is not relevant to the case at bar. None of our

recent decisions in the area of freedom of press have con-

strued our state constitutional provisions.

As herein stated, a statutory privilege against disclosure

has been enacted in some jurisdictions. Those courts of

our sister states who, at least at the time of their decision,

did not have such a statutory privilege are somewhat di-

vided as to judicial creation of the privilege. However,

the majority have refused to create a court mandated

privilege.

In State v. Buchanan, 436 P.2d 729 (Ore. 1968), the

court commented on an asserted privilege against a news-

man’s disclosure of confidential sources:

In the decisions dealing with reporter’s asserted right

to refuse to disclose his source of information, the

courts have held that rights of privacy, freedom of

—————

l6a

association, and ethical convictions are subordinate to

the duty of every citizen to testify in court.

‘**Indeed it would be difficult to rationalize a rule that

would create special constitutional rights for those

possessing credentials as news gatherers which would

not conflict with the equal privileges and equal pro-

tection concepts also found in the constitution. Free-

dom of the press is a right which belongs to the pub-

lic; it is not the private preserve of those who possess

the implements of publishing * * *.

‘*Apart from the definitional difficulties in attempting

to give constitutional status to a privilege or qualified

news gathers which presumably would be denied to

less favored classes, there is another objection to dis-

crimination between news gatherers and other per-

sons. Such a practice would be potentially destructive

of the very freedom that is sought to be preserved by

this appeal. After the lessons of colonial times, the

First Amendment required the federal government to

resist the normal temptation of rulers to regulate,

license or otherwise pass upon the credentials of those

claiming to be authors and publishers. An invitation

to the government to grant a special privilege to spe-

cial class of ‘news gatherers’ necessarily draws after

it an invitation to the government to define the mem-

bership by class. We doubt that all news writers

would want the government to pass on the qualifica-

tions of those seeking to enter their field. * * *.

‘‘Assuming that legislators are free to experiment

with such definitions, it would be dangerous business

for courts, asserting constitutional grounds, to extend

to an employee of a ‘respectable’ newspaper a privi-

lege which would be denied to an employee of a dis-

reputable newspaper; or to an episotic pamphleteer ;

or to a freelance writer seeking a story to sell on the

open market; or, indeed, to a shaggy nonconformist

17a

who wishes only to write out his message and nail it

to a tree. If the claimed privilege is to be found in the

constitution, its benefits cannot be limited to those

whose credentials, may, from time to time, satisfy

the government.’’ At 731-732.

In 1961 in the matter of In re Goodfader’s appeal, 367

P.2d 472, the Hawaii Supreme Court stated:

‘In this jurisdiction no statutory privilege against

disclosure is extended to newsmen. Consistently with

the foregoing general rule, therefore, no such privi-

lege should be judicially recognized. However, it is

stated that this is a vitally important case to the new

state of Hawaii and as the issue presented is a matter

of first impression, we are urged to pioneer in the

field and take advantage of the ‘opportunity to estab-

lish unequivocally that a right of a free press guar-

anteed by the constitution of our state shall be given

as broad a scope as is necessary to insure a truly free

press.’ Also, it is said: ‘To accomplish this objective

confidential sources of information must be held to be

immune from compulsory disclosure and appellant’s

silence a constitutionally protected right.’ Although

urged primarily from a constitutional standpoint, al-

ternately it is arguel that the same result is necessary

from a modernistic public policy standpoint. What, in

effect, is actually asked of us is to create an eviden-

tiary privilege in favor of newsmen. We are not fa-

vorably disposed to the invitation.’’

In re Pappas, 266 N.1.2d 297 (Mass. 1971), was one of

the three cases reviewed by the U.S. Supreme Court in

Branzburg. In Branzburg the Pappas decision was af-

firmed and characterized as stating the general law. In the

Pappas opinion is substantial discussion relative to the

asserted privilege of newsmen from disclosure of confi-

dential sources and the cases and commentators of signifi-

eance to the question.

18a

In 1973 the Massachusetts court in Dow Jones & Co.,

Ine. v. Superior Court, 303 N.E.2d 847, had for considera-

tion the application of its holding in Pappas to a civil

suit for libel the facts of which are substantially similar

to those of the case at bar. Discussed and distinguished

were Baker v. F & F Investment, supra, and Cervantes v.

Time, Inc., supra. The court discussed its previous Pappas

decision and the acceptance of its rationale by the United

States Supreme Court in Branzburg, and then held that

Pappas represented the correct view and should be ex-

tended to civil cases in the libel field.

While admittedly United States v. Liddy, 354 F.Supp.

208 (1972), was in the context of a criminal prosecution

at trial, Judge Sirica observed therein:

‘‘There can be little dispute that the common law

recognized no privilege which would suppert a news-

paper or reporter in refusing, upon proper demand,

to disclose information received in confidence. Such a

privilege, if it exists, must grow out of the first

amendment free press guarantee. Quite appropriately,

in this court’s view, the Supreme Court has recog-

nized as component parts of that guarantee the free-

dom to publish without prior governmental approval,

a right of circulation, freedom to distribute literature

and the right to receive printed matter. And most re-

cently with the Supreme Court’s decision of Branz-

burg it may be said that a right to gather news has

been explicitly acknowledged. While acknowledging

this corollary right, however, the court rejected the

claim that such a right implies a privilege to protect

the identity of news sources. After citing numerous

eases in which restrictions on the right to gather news

have been sustained the court classified the require-

ment to answer subpoenas and disclose sources as an-

other instance of permissible restriction. The majority

noted that ‘the evidence fails to demonstrate that there

19a

would be significant construction of the flow of news

to the public if this court reaffirms the prior common

law and constitutional rule regarding the testimonial

obligation of newsmen.’ ”’

In Carey v. Hume, 492 F.2d 631 (1974 D.C. Cir.) that

court was faced with a factual pattern substantially simi-

lar to the case at bar. The action was one in libel and the

newspaper story reflected that part of the information

supplied therein was from an undisclosed source. In the

course of the pre-trial discovery upon being asked for dis-

closure of those sources the information was denied on

the basis of an asserted privilege founded in the First

Amendment. The court reviewed Branzburg, supra; Gar-

land v. Torre, supra; Dow Jones & Co. v. Superior Court,

supra. The court stated:

‘**Even if he [plaintiff] did prove that the statements

were false, Sullivan also requires a showing of malice

or reckless disregard of truth. That further step

might be achieved by proof that appellant [newsman]

in fact had no reliable sources, that he misrepresented

the reports of his sources, or the reliance upon those

particular sources was reckless.

“Knowledge of the identity of the alleged sources

would logically be an initial element in the proof of

any such circumstances. Although it might be possi-

ble to submit the question of malice to the jury sim-

ply on the basis of conflicting allegations of the par-

ties, that procedure would seem to provide the plain-

tiff little prospect of success in view of his heavy

burden of proof. Consequently, we find that the iden-

tity of appellant’s sources is critical to appellee’s

claim.

ca * 7

‘*What we have decided—and all that we have de-

cided—is that the district court cannot, on the limited

20a

record before us, be said to have abused the discre-

tion invested in it to grant or to deny a motion to

compel discovery under Rule 37. We have rejected

the only contention made to us by appellant, and that

was the pre-Branzburg claim that there either is, or

should be, an absolute First Amendment barrier to

the compelled disclosure by a newsman of his confi-

dential sources under any circumstances. That was

not, in our view, the law before Branzburg, and it is

certainly not the law after, in either civil or criminal

proceedings. ”’

There are to be sure cases wherein courts have differed

from those cited above. See, State v. Knops, 183 N.W.2d

93 (Wis. 1971); Loadholtz v. Fields, 389 F.Supp. 1299

(1975 U.S. Dist. Court M.D. Fla.); Brown v. Common-

wealth, 204 S.E.2d 429 (Va. 1974); State v. St. Peter, 315

A.2d 254 (Vt. 1974); Morgan v. State, 337 So.2d 951 (Fla.

1976). However, at best those decisions discuss the privi-

lege as being qualified.

Of somewhat marginal interest in the case at bar are

those cases arising in jurisdictions wherein exist legisla-

tively created statutory privilege. See, Re Bridge, [sic] 295

A.2d 33 (N.J. 1972). There the court followed Branzburg

in refusing to create a First Amendment privilege and

although the New Jersey evidence rule extends privilege

to newspapermen to refuse to disclose the source of any

information published in the newspaper, such only pro-

tects the source and not the information itself, cert. de-

nied, 36 L.Ed.2d 189. See also, Lightman v. State, 294

A.2d 149, aff’d, 295 A.2d 212, cert. denied 36 L.Ed.2d 414;

People v. Dan, 342 N.Y. Supp.2d 731, appeal dismissed,

344 N.Y.2d 955; People v. Wolf, 333 N.Y.Supp.2d 299.

See also, Hestman v. State, 273 N.E.2d 282 (Ind. 1971).

One of the more recent developments in an adjunct

area is the case of Farr v. Pitchess, 522 F.2d 464 (9th Cir.

2la

1975). For earlier state court history see Farr v. Superior

Court, 99 Cal.Rptr., 342 cert. denied, 409 U.S. 101, and

Re Farr, 111 Cal.Rptr. 649. In Pitchess, the Court stated:

‘This appeal presents the no-longer novel question re-

garding the extent of protection afforded by the First

Amendment ‘free press’ provisions to any newspaper

reporter who resists judicially ordered disclosure of

his news sources. * * * The Branzburg Court dealt

precisely with the first amendment free press provi-

sion as it affected testimony sought to be produced

before a grand jury. However, the opinion appears to

teach [sic] broadly enough to be applied to other

civil or criminal judicial proceedings as well. Recent

cases have so held.’’ [citing Carey v. Hume, supra,

and U.S. v. Liddy, supra.

Commentary in this relatively new field of constitution-

ally based privilege from disclosure is voluminous.*? We

2 Pre-Branzburg:

Guest & Stanzler, The Constitutional Argument for Newsmen Con-

cealing Their Sources, 64 N.W.L.Rev. 18 (1969) ; Blasi, The News-

men’s Privilege: An Empirical Study, 70 Mich.L.Rev. 229 (1971) ;

Nelson, The Newsmen’s Privilege Against Disclosure of Confiden-

tial Sources and Information, 24 Vand.L.Rev. 667 (1971); Note,

Reporters and Their Sources: The Constitutional Right to a Con-

fidential Relationship, 80 Yale L.J. 317 (1970); Note: The News-

men’s Privilege: Government Investigations, Criminal Prosecutions

and Private Litigation, 58 Cal.L.Rev. 1198 (1970).

Post-Branzburg:

Note, 51 N.Caro. L.Rev. 562; Comment, A Need for Statutory

Protection of News Sources, 61 Ky L.J. 551; Comment, Journalists

& Their Sources, 58 Iowa L.Rev. 618; Note, 18 Villanova L.Rev.

288; Note, 41 Fordham L.Rev. 1024; Comment, Newsman’s Privi-

lege, 25 U.Fla.L. Rev. 381; Comment, Newsman’s Privilege Statutes,

49 Notre Dame Lawyer 159; Comment, Ervin, In Pursuit of a

Press Privilege, 11 Harv. J. on Legis. 233; Comment, The Jour-

nalist’s Prerogative of Non-Disclosure, 20 Loyola L.Rev. 120; Com-

22a

have reviewed them but as the tentmaker ‘‘came out by

the same door where in [we] went’’ and no wiser. We are

left to our own devices and what wisdom we may garner

from authorities which may be persuasive although not

binding.

We find agreement with the reasoning and rationale

contined in the opinions of the Massachusetts and Oregon

courts. We are also persuaded that the United States Su-

preme Court would, if presented the opportunity, uphold

the view of the Massachusetts court as it has once already

in Pappas.

The underlying rationale of the First Amendment pro-

tection of freedom of the press is clear. In a society so

organized as ours, the public must know the truth in order

to make value judgments, not the least of which regard

its government and officialdom. The only reliable source

of that truth is a ‘‘press’’ (which is to say everyone—

pamphleteers, nonconformists, undergrounders) which is

free to publish that truth without government censorship.

We cannot accept the premise that the public’s right to

know the truth is somehow enhanced by prohibiting the

disclosure of truth in the courts of the public.

The order, judgment and sentence of the trial court are

affirmed.

McF appen, C.J., and Scoaem, D.J. (Ret.), concur.

ment, Subpoenas to Compel Disclosure of Confidential Informa-

tion, 49 Los Angeles Bar Bull. 133; Commnet, Journalists in the

Courts, 8 U. San Francisco L.Rev. 664; Note, 9 U. Richmond L.Rev.

171; Note, Newsman’s Source Privilege, 26 U. Fla. L.Rev. 453;

Note, Dixon, Newsman’s Privilege by Federa] Legislation, 1 Hast-

ings Const. Law Q. 39; Note, 53 Bost. U.L.Rev. 497; Note, News-

man’s Privilege Two Years After Branzburg, 49 Tulane L.Rev.

417; Note, Grodde, The Developing Qualified Privilege for News-

men, 26 Hastings L.J. 709; Note, 16 Santa Clara L.Rev. 379; Note,

Murphy, Journalist’s Privilege, 15 Texas L.Rev. 829.

23a

Donatpson, J., dissenting.

In every case involving an infringement of first amend-

ment rights, whether the infringement is direct or indirect,

one question is paramount. A court must decide whether

there is a compelling interest justifying the infringement.

Every first amendment case necessarily involves a bal-

ancing of competing interests. The interest in maintaining

a robust first amendment must be balanced against what-

ever interest is asserted as justifying the impairment of

first amendment freedoms. The balance is weighted in fa-

vor of the first amendment, however, in that the competing

interest must be ‘‘compelling’’ or ‘‘paramount.’’ And nor-

mally the burden of establishing a compelling interest is

on the state. These principles have been given consistert

endorsement by the United States Supreme Court. De-

Gregory v. Attorney General of New Hampshire, 383 U.S.

825 (1966); NAACP v. Button, 371 U.S. 415 (1963); Bates

v. Little Rock, 361 U.S. 516 (1960); NAACP v. Alabama,

357 U.S. 449 (1958); Thomas v. Collins, 323 U.S. 516

(1945); Schneider v. State, 308 U.S. 147 (1939). Because

the majority diverges from this well-established approach,

I dissent.

The majority opinion does not expressly address the

issue of competing interests. In fact, there is some doubt

that the majority believes first amendment freedoms are

even implicated. Two interests are implicated, however,—

the interest in allowing the press unfettered access to

sources of information aud the interest in allowing court

unimpaired access to iestimony in civil litigation. These

interests are in conflict and they have to be balanced. The

ease cannot be resolved simply by stating the general

theory that new testimonial privileges are disfavored or

by stating the importance courts have traditionally placed

on compelling testimony in a lawsuit.

Nor can the case be resolved on the basis of Branzburg.

The majority acknowledges that Branzburg was decided

ES eee -

24a

in the context of criminal prosecution.’ But, not surpris-

edly, given the approach of the majority opinion, it misses

the import of this distinction. The immediate question be-

fore us is whether the admittedly important interest in

compelling disclosure of relevant information in civil liti-

gation should take precedence over the first amendment.

In resolving this question, the authority that is most rele-

vant is that which was decided in a civil context. Branz-

burg is a logical starting point, but is only that.

Branzburg.

Branzburg was a 5-4 decision in which Justice Powell

wrote a concurring opinion. The four dissenters main-

tained that newsmen should enjoy either a qualified or

absolute privilege. The plurality opinion authored by

Justice White rejected both claims, but it did recognize

that newsgathering is entitled to first amendment protec-

tion.

1The Supreme Court specifically limited its holding in Branz-

burg: ‘‘The sole issue before us is the obligation of reporters to

respond to grand jury subpoenas as other citizens do and to

answer questions relevant to an investigation into the commission

of crime.’’ Branzburg v. Hayes, 408 U.S. 665, 682.

An exact reading of the issues raised in the Branzburg trilogy

further limits the Court’s holding. The Court was presented with

two issues, a reporter’s appearance before a grand jury and his

testimony to crimes that he actually witnessed.

*In an opinion authored by Justice Stewart, three of the dis-

senters adopted a qualified privilege.

‘‘[T] he government must (1) show that there is probable cause

to believe that the newsman has information that is clearly rele-

vant to a specific probable violation of law; ‘2) demonstrate that

the information sought cannot be obtained by alternative means

less destructive of First Amendment rights; and (3) demonstrate

a compelling and overriding interest in the information.’’ 408 U.S.

at 743. (Stewart, Brennan and Marshall, JJ. dissenting).

25a

Early in his decision, Justice White states ‘‘Nor is it

suggested that newsgathering does not qualify for first

amendment protection; without some protection for seek-

ing out the news, freedom of the press could be eviscer-

ated.’’ Branzburg v. Hayes, supra at 681. At the end of

his opinion he states, ‘‘Finally as we have earlier indi-

cated, newsgathering is not without its First Amendment

protections and grand jury investigations if instituted or

conducted other than in good faith, would pose wholly

different issues for resolution ander the First Amend-

ment.’’ 408 U.S. at 707.

To be sure, the protection that Justice White would

allow the first amendment is narrowly circumscribed. The

opinion as a whole seems to indicate that first amend-

ment protection would only exist when the newsgatherer

ec ild show that the grand jury proceedings were being

used as a means of harassment. In addition, the burden

of proving lack of food faith appears to be on the news-

gatherer which is contrary to the traditional approach in

first amendment cases. But what is significant is that Jus-

tice White reached this result by balancing the burden

disclosure would place on newsgathering against the im-

portance of disclosure to the criminal justice system. Jus-

tice White found the latter compelling. 408 U.S. at 690.

The question in the present case is whether the interest

in civil litigation is equally compelling.

It should also be noted that commentators and courts

have not found Branzburg conclusive even in regard to

the balance that should be struck between the first amend-

ment and the needs of the criminal justice system. Bursey

v. United States, 466 F.2d 1059 (9th Cir. 1972); State v.

Peter, 315 A.2d 254 (Vt. 1974); Brown v. Commonwealth,

Justice Douglas in a separate dissent stated that the first amend-

ment demanded that reporters enjoy an absolute privilege. 408 U.S.

712, (Douglas, J., dissenting).

26a

204 S.E.2d 429 (Va. 1974). Note, Goodale, Branzburg v.

Hayes and the Developing Qualified Privilege for News-

men, 26 Hastings L.J. 709 (1975); Comment, Right of the

Press to Gather Information after Branzburg and Pell,

124 U. Penn. L. Rev. 166 (1975); Supreme Court, 1971

Term, 86 Har. L. Rev. 52, 137-48 (1972).

The seeds of disputation were sown in Justice Powell’s

concurring opinion. Justice Powell, although he was the

fifth justice to join the Branzburg majority, allows the

first amendment greater weight than the plurality opinion

does. First of all, Justice Powell does not impose a bur-

den of proof on either the newsgatherer or the govern-

ment. Instead he maintains that:

‘‘the court—when called upon to protect a newsman

from the improper or prejudicial questioning—would

be free to balance the competing interests on their

merits in the particular case.’’ 408 U.S. at 710 n. °.

Secondly, Justice Powell expanded the scope of a news-

gatherer’s first amendment protection. In addition to be-

ing protected from grand jury proceedings conducted in

bad faith, Justice Powell thought that a newsgatherer

might seek a motion to quash or a protective order when-

ever he was

‘‘called upon to give information bearing only a re-

mote and tenuous relationship to the subject of the

investigation, or if he has some other reason to be-

lieve his testimony implicated confidential source rela-

tionship, without a legitimate need of law enforce-

ment.’’ 408 U.S. at 710.

A majority of this Court contends that Powell’s concur-

rence gives a newsgatherer immunity from disclosure only

if a grand jury investigation is conducted in bad faith.

Whatever the meaning of Powell’s concurrence—and some

commentators and courts contend that it establishes a

27a

qualified privilege—it cannot be read as the majority

reads it. If Justice Powell intended that when an ‘‘inves-

tigation is not being conducted in good faith [the news-

man] is not without remedy,’’ there would have been no

reason for him to write a special concurrence. Justice

White’s plurality opinion conceded that much to the first

amendment. The majority’s interpretation bears no rela-

tion to the language of the opinion itself. Justice Powell

explicitly stated that he did not think disclosure would

be justified in a case when the requested information was

**remote or tenuous to the subject of the investigation.’’

408 U.S. at 710.

Admittedly the opinion is opaque, but since Powell was

the deciding vote, it cannot be cavalierly dismissed—

especially in view of the pains to which Powell went in

Saxbe v. Washington Post, 417 U.S. 483 (1974) to point

out that his opinion in Branzburg was extremely limited.

**T emphasized the limited nature of the Branzburg

holding in my concurring opinion. ‘The Court does

not hold that newsmen, subpoenaed to testify before

a grand jury, are without constitutional rights with

respect to the gathering of news or the safeguarding

of their sources.’ In addition to these explicit state-

ments, a fair reading of the majority’s analysis in

Branzburg makes plain that the result hinged on an

assessment of the competing societal interests in-

volved in that case rather than on any determination

that First Amendment rights are not implicated.’’

417 U.S. at 859-860.

Justice Powell’s concurrence has had important conse-

quences in the application of Branzburg. In Bursey v.

United States, supra, for example, the Court of Appeals

for the Ninth Circuit deviated from the conclusion reached

by the Branzburg plurality. In response to the govern-

ment’s contention that the first amendment is of no weight

in grand jury proceedings, the court said:

= ie, dened <3 we

28a

‘‘No governmental door can be closed against the

amendment. No governmental activity is immune from

its force. That the setting for the competition between

rights secured by the first amendment and antagonis-

tic governmental interests in a grand jury proceed-

ing is simply one of the factors that must be taken

into account in striking the appropriate constitutional

balance.’’ 466 F.2d at 1082.

The court struck the balance in favor of the first amend-

ment. The burden was on the government to establish

that the

‘‘government’s interest in the subject matter of the

investigation is ‘immediate, substantial, and subordi-

nating,’ that there is a ‘substantial connection’ be-

tween information it seeks to have the witness com-

pelled to supply and the overriding governmental in-

terest in the subject matter of the investigation, and

that the means of obtaining information is not more

drastic than necessary to forward the asserted gov-

ernmental interest.’’ 466 F.2d at 1083.

In short, the court accorded newsgathering a qualified

privilege.

The newspaper reporters in Bursey had refused to an-

swer 56 of the grand jury’s questions. The court required

them to answer only those questions that fell under the

above standard. To that end the court distinguished be-

tween those questions regarding direct witnessing of pos-

sible criminal activity and those relating to newsgathering

activities, even though the latter ‘‘might have something

to do with conduct that might have criminal conse-

quences.’’ The newspapermen were required only to an-

swer questions about criminal activity that they witnessed.

Although the Bursey decision was technically decided

and released the day following Branzburg, the opinion

29a

was undoubtedly written before it. Accordingly, the gov-

ernment moved for a rehearing arguing that the Bursey

holding was inconsistent with Branzburg. Maintaining that

the Branzburg holding was limited to its facts, the Ninth

Circuit denied the government’s motion. The court noted

that it adhered to the Branzburg formulation that the

government or a grand jury did not have to make a pre-

liminary showing before the grand jury could ask ques-

tions of witnesses. Nor did Bursey permit a grand jury

witness to refuse to identify a person whom he had seen

committing a crime. Nothing in Branzburg, moreover,

**purported to disavow the balancing standards’’ tradi-

tionally used in first amendment cases. Competing inter-

ests were balanced in Bursey and the balance was struck

in favor of the first amendment. The court concluded:

‘*We have reexamined our analysis of the factors in-

volved in balancing the First Amendment rights

against the governmental interests asserted to justify

compelling answers to the questions here involved,

and we have concluded that the balance we struck is

not impaired by Branzburg.’’ 466 F.2d at 1091.

Special emphasis was placed on Justice Powell’s con-

curring opinion. The court followed Powell’s prescription

that the ‘balance of these vital constitutional societal in-

terests on a case-by-case basis accords with the tried and

traditional way of adjudicating such questions.’’ Branz-

burg v. Hayes, supra at 710.

For the purposes of this case it is unnecessary to at-

tempt a clarification of the Branzburg decision.’ The ulti-

*I will only state parenthetically that I believe that Powell’s

concurrence does establish a qualified privilege. He explicitly states

that under certain circumstances he would not force disclosure of

sources. In other words, sources are privileged under certain cir-

cumstances.

EEE a

30a

mate meaning of the case will have to be determined by

subsequent case law. It will suffice to say that Branzburg

has not been given in a criminal context the weight that a

majority of this Court gives it in a civil context.

The civil cases.

We come now to those cases that are most relevant to

the outcome of this case—cases in which newsmen have

been subpoenaed to testify in civil litigation. The first

case decided in this area was Garland v. Torre, 259 F.2d

545 (2d Cir. 1958). The case arose when actress J udy Gar-

land was described by Marie Torre in her Hehald Tribune

column as overweight. Torre attributed the statement to

an unnamed C.B.S. official. Garland sued C.B.S. and

sought the identity of the person who had made the state-

ment. After having deposed several officials at C.B.S.,

Garland sought to depose Torre. Torre refused to identify

the source and as a consequence she was held in criminal

contempt. After balancing the interests involved, the

Court of Appeals for the Second Circuit found that the

Whether Powell adopts the standards articulated in Stewart’s

dissent—relevance, exhaustion of alternative sources and compel-

ling national interest in the testimony—is ambiguous. He accepts

the relevance standard—he would quash a subpoena that requires

a reporter to yield information ‘‘bearing only a remote and tenu-

ous relationship to the subject of the investigation.’’ 408 U.S. at

710 n. *. He adds in the same footnote, however, that Stewart s

proposal ‘‘would impose heavy burdens of proof to be carried by

the State.’’ This statement can be interpreted in two ways. He

intended either that the remainder of the Stewart test should fail

because it was too burdensome, or that the burden of proof should

be placed on the reporter rather than the state.

What is important is that Powell’s opinion does allow a qualified

privilege. The majority of this Court is therefore in error when it

states that Branzburg does not privilege newsgathering. Five J us-

tices, Powell and four dissenters, do adopt a qualified privilege.

3la

identity of the source was crucial to the plaintiff’s case

and compelled disclosure.

What is significant for the purposes of this case, how-

ever is that Justice Stewart was careful to point out the

qualified nature of the required disclosure.

“It is to be noted that we are not dealing here with

the use of the judicial process to force a wholesale

disclosure of a newspaper’s confidential sources of

news, nor with a cdse where the identity of the news

source is of doubtful relevance or materiality [cita-

tions omitted]. The question asked of the appellant

went to the heart of the plaintiff’s claim.’’ 259 F.2d

at 549-50.

The majority reads Garland incorrectly when it main-

tains that Garland does not establish a qualified privilege.

The test applied by the court in Garland is very similar to

the one Justice Stewart articulated in his Branzburg dis-

sent. The Garland test demands (1) relevancy, (2) exhaus-

tion of alternate sources and (3) that the requested infor-

mation be of critical importance. A plaintiff is entitled to

disclosure only if he satisfies all three requirements.

Otherwise, the identity of a reporter’s source is privileged.

The majority also incorrectly analogizes the facts of

Garland to the facts of the present case. Garland is simi-

lar to Caldero in that a reporter refused to disclose the

source of an alleged defamatory statement. The similarity

ends there. The identity of the source was arguably cru-

cial in Garland because unless he was in fact a C.B.S.

official, an action would not lie against C.B.S. Garland

sued C.B.S. not the newspaper that published the state-

ment. The only relevance that the identity of the source

has in Caldero is that an inference of malice would arise

if the source did not exist or if the source was manifestly

irresponsible. I do not believe that such would normally

qualify under the Garland test as the heart of the plain-

ee = +.

32a

tiff’s case unless the plaintiff’s claim already has some

foundation without the identity of the source being known.

It also is important to note that Garland was decided

before the monumental Supreme Court decision in New

York Times Co. v. Sullivan, 376 U.S. 254 (1964).* The bal-

nacing process in Garland was based upon a common law

premise that the interest of the reporter in protecting a

source is a private one, which must yield to the superior

public interest in the administration of justice. That

premise was refuted by New York Times. Torre’s claim

for a constitutional justification for nondisclosure of her

source was undermined by the fact that defamatory state-

ments were considered outside the scope of first amend-

ment protection. Had Torre been decided after New York

Times, the result would have been different. Since New

York Times, defamatory statements have been within the

ambit of the first amendment. The thrust of New York

Times, and its progeny is that the elements to be weighed

in the balancing process in constitutional libel actions

should be the public interest in the free flow of news and

the plaintiff’s private reputational interest. The real im-

port of Garland is not, as the majority seems to think,

that the court ordered disclosure of a confidential source.

Garland’s import is that although the statements involved

were outside constitutional protection, the Second Circuit

gave credence to the claimed privilege to protect a confi-

dential source by insisting upon a strong showing of rele-

vance prior to disclosure.

Civil eases decided since Garland have followed Garland

in adopting a qualified privilege for newsgathering. Carey

v. Hume, 492 F.2d 631 (D.C. Cir. 1974); Cervantes v.

‘Prior to Sullivan, there had been only occasional mention in

defamation cases of the first amendment guarantees of free speech

and free press. Sullivan introduced somewhat of a ‘*bombshell’’ by

holding that the first amendment itself required the privilege.

Prosser, Law of Torts § 118 1971).

33a

Time, Inc., 467 F.2d 986 (8th Cir. 1972); Baker v. F & F

Investment, 470 F.2d 778 (2d Cir. 1972).

Carey v. Hume, supra, involved an interlocutory a

from a district court order directing a reporter righ

his confidential sources. The Court of Appeals for the

District of Columbia Circuit announced at the outset that

the Garland approach should govern the outcome of the

anor The court described the Garland approach as fol-

ows:

“‘That approach essentially is that the court will look

to the facts on a case-by-case basis in the course of

weighing the need for the testimony in question

against the claims of the newsman that the public’s

right to know is impaired.’’ 492 F.2d at 636.

The Carey court ordered disclosure, but it was careful

to limit its holding to the specific facts of Carey. Jack

Anderson had written a column stating that the United

Mine Workers general counsel Edward L. Carey and

U.M.W. President Tony Boyle had been seen improperly

taking records from Boyle’s office. Carey sued for tibel

and deposed Britt Hume, Anderson’s colleague, who had

supplied information for the article. Hume stated that a

U.M.W. employee was the source for the statement, but

declined to identify him.

The court found that the identity of Hume’s source was

critical to Carey’s case. Hume testified that, according to

his source, Carey and Boyle had confiscated the records

over a protracted period of time. The court noted that it

would be exceedingly difficult for Carey to introduce evi-

dence beyond his own testimony that would prove that he

did not ‘‘at any time of day or night over an indefinite

period of several weeks’’ remove the documents from

U.M.W. offices. 492 F.2d at 637. In addition, Anderson

had based the allegedly defamatory article exclusively on

the information supplied by the undisclosed source. There

Pet a4

34a

were no corroborative sources. Lastly and most import-

antly, the record before the court indicated that Carey ’s

claim was not frivolous.* Whether Carey would prevail

hinged upon the identity of the source.°

In Cervantes v. Time, Inc., supra, the issue of disclo-

sure had to be resolved in a procedural context different

from Carey, but the underlying issue was the same—

should the court compel disclosure. Life Magazine had

published an article representing that Alfonso Cervantes,

the Mayor of St. Louis, maintained business and social

ties with organized crime. Cervantes sued and moved for

an order to compel disclosure of the source of the article.

Time, Inc. made a motion for summary judgment with

accompanying affidavits refuting Cervantes’ claim of mal-

ice. The district court granted Time’s motion without

reaching the merits of Cervantes’ motion. Cervantes ap-

pealed. The Eighth Circuit found that in view of the

plaintiff’s burden under the New York Times malice

standard, there was no reasonably probability that Cer-

5 The court stated, ‘‘In Garland the court was unable to-say that

the plaintiff’s claim was frivolous, Neither can we conclude on the

basis of the record before us that appellee’s claim is without merit.”’

492 F.2d at 637.

*The court relaxed the requirement of Garland that a plaintiff

exhaust alternative sources to uncover the identity of the undis-

closed source before seeking disclosure from the reporter. In Carey

any one of a multitude of U.M.W. employees could have provided

the information on which Anderson based his article. The court

concluded that it would be unreasonable to expect the plaintiff to

interview all the employees of U.M.W. to discover the source of

Hume’s information. 492 F.2d at 638. However, to require Caldero

to interview police experts in Idaho before he could compel dis-

closure would appear to be feasible, absent a showing that an at-

tempt was made and that it proved impossible. In this ease no such

showing was made. I believe that Garland requires only that a

plaintiff exhaust alternative sources when it is feasible to do so.

35a

vantes would succeed in his libel suit. It therefore upheld

the district court’s grant of summary judgment even

though the identity of Life’s sources had not been revealed

to Cervantes. The court’s decision was based on the first

amendment—‘‘to routinely grant motions seeking compul-

sory disclosure of anonymous news sources without first

inquiring into the substance of the libel allegation would

utterly emasculate the fundamental principles that under-

lay the line of cases articulating the constitutional restric-

tions ot be engrafted upon the enforcement of State libel

laws.’’ 464 F.2d at 993.

The majority is correct in noting that in Cervantes the

Eighth Circuit affirmed the district court’s grant of sum-

mary judgment against the plaintiff. It is incorrect in dis-

missing the import of the case for this reason. Cervantes

major argument was that the district court erred in

granting summary judgment without first mandating the

disclosure of Life’s confidential sources. The Eighth Cir-

cuit had to decide, in effect, whether the first amendment

took primacy over the plaintiff’s right to know the iden-

tity of Life’s sources. Were it not for the intervention of

the first amendment, Cervantes’ claim would have had

merit. The Eight Circuit’s conclusion—that disclosure

should be ordered only when ‘‘there is a concrete demon-

stration that the identity of defense news sources will

lead to persuasive evidence on the issue of malice’’—is

clearly relevant to the present case. 464 F.2d at 994. Ex-

pressed otherwise, Cervantes holds that the interest in

compelling testimony takes precedence over the first

amendment only when the information sought via disclo-

sure is of critical importance to the plaintiff’s case. The

identity of a reporter’s sources is privileged—if a plain-

tiff does not meet this standard, the court will not compel

disclosure. This is merely a rephrasing of the Garland

test that the requested information must go to the ‘‘heart

of the plaintiff’s claim.’’

36a

The majority also errs when it dismisses the preceden-

tal value of Baker v. F & F Investment, supra.’ A number

of distinctions are cited by the majority, none of which

refute the relevance of Baker to the present case. Baker

came before the court as an interlocutory appeal from a

district judge’s decision refusing to compel a journalist to

disclose confidential news sources. The district court

reached its decision by balancing the public interest in a

robust first amendment against the private interest in

compelled testimony. The court concluded that the first

amendment should prevail. On appeal the Court of Ap-

peals saw the issue and its resolution as follows:

‘Appellants urge us to extend to this civil case the

limited principle of Branzburg v. Hayes which held

only that newsmen could be required to disclose confi-

dential sources to a grand jury conducting a criminal

investigation. We decline that invitation and affirm

the order.’’ 470 F.2d at 779-80.

The court followed the approach of Garland. In upholding

the district court’s decision it noted that (1) the plaintiff

had not exhausted alternate sources, (2) he had not dem-

onstrated relevance, and (3) he had not shown that the

information was of critical importance. The contrary re-

sult raeched in Garland was distinguished on the facts of

the case:

‘““The facts in the Garland case are wholly unlike

those before us. There the record revealed that Miss

Garland had taken active steps independently to de-

' Baker was a civil rights class action brought in behalf of all

Negroes in the City of Chicago who purchased homes from approxi-

mately 60 named defendants between 1952 and 1969. During dis-

covery, plaintiffs exposed a journalist who had written an article

on racially discriminatory real estate practices in the Chicago area.

Plaintiffs wanted to know the identity of the real estate agent who

provided information for the story.

37a

termine the identity of the confidential news source.

Three C.B.S. executives were deposed; they denied

making the statement in question and denied knowing

the identity of the network executive referred to in

the Herald Tribune column. In view of these denials,

the identity of Miss Torre’s source became essential

to the libel action: in the words of this Court, it

‘went to the heart of plaintiff’s claim.’ [citation de-

leted] Appellants in this case have not demonstrated

that the identity of [the reporter’s] confidential

source is necessary much less critical to the mainte-

nance of their civil rights action.’’ 470 F.2d at 784.

The basic theme of Garland, Carey, Cervantes, and

Baker is that newsgathering should enjoy a qualified priv-

ilege.* The respective courts reached this result by engag-

ing the traditional first amendment balancing test. The

courts set off the public interest in a robust first amend-

ment against the private interest in compelled testimony.

Equilibrium was reached by allowing a qualified privi-

lege—courts would compel disclosure only when the plain-

tiff could show that the identity of the source was critical

to his case. There were variations from court to court

(Garland and Baker would require exhaustion of alter-

nate sources), but each of the courts used this standard

to delineate the limits of the privilege.

Whether a court should require disclosure in the indi-

vidual case will depend upon the facts of the case. Dis-

closure can not be dictated in the abstract. The issue must

be resolved on a case-by-case basis—in the words of Jus-

tice Powell, the ‘‘tried and traditional way of adjudicat-

ing such questions.’’ Branzburg v. Hayes, supra at 710.

*In the related area of subpoenas duces tecum, courts have also

given newsgathering a qualified privilege. Democratic National

Committee v. McCord, 356 F.Supp. 1394 (D.C. Cir. 1973); Spiva

v. Francouer, 39 Fla.Supp. 49 (Dade County Jud, Cir. 1973). Both

cases quashed the subpoenas.

38a

When these principles are applied to the present case,

we find that the identity of the confidential source is privi-

leged. Caldero has not even come close to establishing the

critical importance of Shelledy’s testimony.’ Shelledy’s

undisclosed source merely expressed an opinion about the

professional propriety of Caldero’s conduct that was

echoed by the county prosecutor and the state attorney

general, both of whom were idenitfied in Shelledy’s article.

Furthermore, the uncontradicted deposition of the attor-

ney general, who was Caldero’s superior, confirmed the

statements made in the news article. The statements them-

selves do not evince any inference of maliee. Actual malice

would have to be proved since the district court had al-

ready ruled that Caldero was a public official. Caldero’s

claim, moreover, is not supported by any other evidence.

As was stated earlier, the only relevance that the iden-

tity of the source has in Caldero is that an inference of

malice would arise if the source was either nonexistent or

irresponsible. Critical importance cannot be established on

such a meager basis. The identity of a source could be of

critical importance only if plaintiff’s allegations already

had some basis in fact before disclosure. Then the iden-

tity of the reporter’s source could have the pivotal im-

portance envisioned by Garland and its progeny.

® Caldero also has made no showing that he attempted to obtain

the identity of Shelledy’s souree by alternative means less de-

structive of the first amendment freedoms.

39a

Baxgs, J., dissenting:

I disagree with the majority that this newsman must be

compelled to reveal the identity of the undisclosed ‘‘ police

expert’’ quoted in his news story. I agree with Justice

Donaldson that the First Amendment to the United States

Constitution affords a newsman a limited privilege against

disclosure of his news sources in some cases. However,

assuming that the article was false and defamatory, I dis-

agree with Justice Donaldson that the claim of constitu-

tional privilege in this case would have outweighed the

importance of discovery of the police expert because in

my opinion this information would have been critical to

the issue of malice. But since I do not believe that this

article was false and defamatory of Caldero, I conclude

that the First Amendment inteersts in a free press out-

weigh the discovery of this-information.

First, I cannot agree with the majority that the First

Amendment guarantee of a free press does not afford a

limited privilege to newsmen protecting them from dis-

covery of their sources. An examination of the United

States Supreme Court’s opinions in Branzburg and the

many intermediate court cases in this area reveals that

even where discovery is ultimately ordered, it is only after

application cf a balancing of First Amendment interests

in a free press against the right of litigants to discovery

of material information, and then narrowly prescribing

-he questions which must be answered. This approach of

the courts is thoroughly analyzed by Justice Donaldson

in his dissent.

I believe the most telling indication that a limited priv-

ilege does exist in those news source discovery cases is

disclosed by a comparison of the approach taken by the

courts in these cases with the general rule of discovery

40a

laid out in LR.C.P. 26(b)(1), which is identical to the

comparable federal rule:

‘‘Rutz 26 (b)(1). Scorpz or Discovery in GENERAL.—

Unless otherwise limited by order of the court in ac-

cordance with these rules, the scope of discovery is as

follows: (1) Parties may obtain discovery regarding

any matter, not privileged, which is relevant to the

subject matter involved in the pending action,

whether it relates to the claim or defense of the

party seeking discovery or to the claim or defense

of any other party, including the existence, descrip-

tion, nature, custody, condition and location of any

books, documents, or other tangible things and the

identity and location of persons having knowledge of

any discoverable matter. It is not ground for objec-

tion that the information sought will be inadmissible

at the trial if the information sought appear reason-

ably calculated to lead to the discovery of admissible

evidence.’’ (Emphasis added).

This rule has consistently been interpreted to allow the

broadest possible discovery; in Hickman v. Taylor, 329

U.S. 495 (1947), a case in which the U.S. Supreme Court

discussed the scope of discovery under this rule, that

Court observed:

‘‘No longer can the time-honored cry of fishing ex-

pedition’ serve to preclude a party from inquiring

into the facts underlying his opponent’s case.’’ 329

U.S. at 507.

The only limitation on discovery of unprivileged material

is that it be relevant to the subject matter of the litiga-

tion, which is such a broad standard that at the discovery

stage a party may in fact engage in a fishing expedition.

8 Wright & Miller, Federal Prac. & Proe., § 2008.

4la

If there is no limited newsman’s privilege, how can the

following passage from Garland v. Torre, 259 F.2d 545

(2d Cir. 1958), be reconciled with the broad discovery

rules outlined above?

“It is to be noted that we are not dealing here with

the use of the judicial process to force a wholesale

disclosure of a newspaper’s confidential sources of

news, nor with a case where the identity of the news

source is of doubtful relevance or materiality. [Cita-

tions omitted]. The question asked of the appellant

went to the heart of the plaintiff’s claim. We hold

that the Constitution conferred no right to refuse an

answer.’’ 259 F.2d at 549-550.

The ‘‘heart of the claim’’ test was also adopted in Carey

v. Hume, 492 F.2d 631 (D.C. Cir. 1974), wherein that

Court observed:

“*. . . Branzburg, in language if not in holding, left

intact, insofar as civil litigation is concerned, the

approach taken in Garland. That approach essentially

is that the court will look to the facts on a case-by-

case basis in the course of weighing the need for the

testimony in question against the claims of the news-

man that the public’s right to know is impaired.’’

492 F.2d at 636.

Clearly, that court recognized that a limited privilege

existed. Its holding that the newsman could be compelled

to reveal his sources was arrived at by the balancing

process it describes, which is a far contrast from the

broad discovery provisions of Rule 26(b)(1).

In Baker v. F & F Investment, 470 F.2d 778 (2d Cir.

1972), the Second Circuit upheld the trial court’s refusal

to compel disclosure of a newsman’s sources because it

found no ‘‘concern [in this case] so compelling as to

override the precious rights of freedom of speech and

42a

the press.’’ 470 F.2d at 785. Again, the court was recog-

nizing a limited privilege and so refused to allow broad

discovery as provided by Rule 26(b) (1).

In this case, even while the trial court and the ma-

jority of this Court have held that the reporter here was

not privileged to refuse to disclose his sources, the

scope of the discovery ordered is limited to three ques-

tions, ante at 3, and the trial court rejected the plain-

tiff’s request for discovery of answers to several col-

lateral questions. But if ‘‘no newsman’s privilege against

disclosure of confidential sources founded on the First

Amendment exists in an absolute or qualified version,’’

as the majority states, ante at 11, there should be no

reason why the plaintiff in this case is not afforded the

right to broad discovery given all parties in civil litiga-

tion under Rule 26(b)(1)—in short, a fishing expedition.

This very inconsistency in the trial court’s limiting order

and the majority’s holding reveals that they have also

done some balancing between the First Amendment right

of free press and the right of litigants to information.

I agree with Justice Donaldson that the First Amend-

ment to the United States Constitution affords a limited

privilege against disclosure of sources in cases where

such disclosure is not critical to an issue in the case.

This limitel privilege protects a newsman from broad

discovery of his sources under Rule 26 (b)(1), But he

may be compelled to disclose certain information if a court

concludes that a party’s interest in obtaining that infor-

mation outweighs the newsman’s limi

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