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Univ. of South Carolina School of Law

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Friday, September 26, 2008

Power Of The Press, Take 4: Supreme Court Of Pennsylvania Refuses To Read Crime-Fraud Exception Into Its Shield Rule/Reporter's Privilege

The first paragraph of the Supreme Court's opinion on Wednesday in Castellani v. Scranton Times, L.P., 2008 WL 4345136 (Pa. 2008), illustrates its significance.  According to the Court:

     "Pennsylvania's Shield Law, 42 Pa.C.S. Section 5942, protects a newspaper's source of information from compelled disclosure. With the present appeal, appellants urge this Court to recognize a non-textual “crime-fraud” exception to the Shield Law that would permit compelled disclosure of a newspaper's source if the communication between the newspaper reporter and the source itself constituted a criminal act. For the following reasons, we decline to adopt any such exception and affirm the Superior Court's reversal of the trial court's order compelling disclosure of the confidential source."

The facts of Castellani are long and winding, and I will simply link to the opinion for readers interested in all of the details.  For purposes of this post, however, I will simply mention that:

     -a grand jury was empaneled to investigate allegations of wrongdoing at Lackawanna County Prison;

     -appellants Randall A. Castellani and Joseph J. Corcoran, then-Lackawanna County Majority Democratic Commissioners, testified before the grand jury;

     -The Tribune and The Scranton Times published front-page stories by Jennifer Henn accusing appellants of “stonewalling” the Grand Jury;

     -appellants filed a civil complaint against The Tribune, The Scranton Times, and Henn claiming that the news articles were false and contained "defamatory statements, innuendo, and implications" and that the articles' source engaged in "tortious, criminal, or contemptuous conduct;"

     -the case eventually reached the Pennsylvania supremes, who found that "[t]he question accepted for appeal is whether the Shield Law protects media defendants in a defamation case from the court-ordered disclosure of the confidential source of an allegedly defamatory newspaper article, where the plaintiffs allege that the media defendants and the source were direct participants in the criminal disclosure of grand jury proceedings."

I'll begin where the Court began, by listing the language of 42 Pa.C.S. Section 5942, which states that:

     "(a) General rule.--No person engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news, shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit.

     (b) Exception.--The provisions of subsection (a) insofar as they relate to radio or television stations shall not apply unless the radio or television station maintains and keeps open for inspection, for a period of at least one year from the date of the actual broadcast or telecast, an exact recording, transcription, kinescopic film or certified written transcript of the actual broadcast or telecast."

The Court then noted that in its 1963 opinion in In re Taylor, 193 A.2d 181 (Pa. 1963),

     "an investigating grand jury was convened in Philadelphia in 1962 to investigate allegations of criminal conduct and corruption involving various offices of the Philadelphia city government. Soon thereafter, The Philadelphia Evening Bulletin published an article reporting aspects of the investigation. The president/general manager and city editor of The Bulletin were subpoenaed to appear before the Grand Jury and directed to bring with them the source information of the articles."

And in Taylor, the Court upheld the newspapermen's invocation of the Shield Law, "stat[ing] point-blank: application of the plain text of the Shield Law 'will enable newsmen to conceal or cover up crimes.'"  The Court then traced its treatment of the Shield Rule through its most recent opinion in Commonwealth v. Bowden, 838 A.2d 740 (Pa. 2003), where it reaffirmed Taylor by holding that "documents may be considered sources for Shield Law purposes, but only where production of such documents, even if redacted, could breach the confidentiality of the identity of a human source and thereby threaten the free flow of information from confidential informants to the media."

The Court thus flatly rejected the argument that there should be a crime-fraud exception to the Shield Rule, concluding that:

     "Taylor 's interpretation of the Shield Law, as described by Bowden, plainly controls the outcome of the present appeal. There is cause to look beyond the plain language of the Shield Law when interpreting, for example, the scope of the word 'source,' but the Shield Law's unambiguous text leaves little question as to whether a source's identity is protected. Our Shield Law jurisprudence has consistently recognized the statute's absolute protection of a source's identity from compelled disclosure. For that reason alone, we cannot simply engraft upon the statute an exception which would not only contradict the well-established public policy underlying the Shield Law, but, as importantly, would contravene the statute's unambiguous text. The Shield Law has been reenacted three times since it was first enacted in 1937, and twice since this Court interpreted its text in Taylor. If the General Assembly disagreed with our interpretation, or wished to establish a crime-fraud exception to the Shield Law, it could easily have done so."

Then, in maybe the most interesting part of its opinion, the Court rejected the argument for a crime-fraud exception to the Shield Rule based upon the crime-fraud exception to the attorney-client privilege, finding that its Shield Rule provides more protection than any other evidentiary privilege.  According to the Court,

     "contrary to appellants claim, we conclude that the Shield Law is not comparable to the attorney-client privilege, or, for that matter, to any other privilege with respect to the issue presented here. The attorney-client privilege, in contrast, does not encompass the same absolute protection. The foundational reason for this difference is that each privilege or protection serves its own, unique interests. The Shield Law was enacted to protect the free flow of information to the news media in their role as information providers to the general public. The attorney-client privilege, on the other hand, renders an attorney incompetent to testify as to communications made to him by his client in order to promote a free flow of information only between attorney and his or her client so that the attorney can better represent the client. See 42 Pa.C.S. 5916.

     In [Nadler v. Warner Co., 184 A.3 (Pa. 1936)], this Court recognized a crime-fraud exception to the attorney-client privilege to prevent a client from abusing the privilege in furtherance of a crime or fraud. No such purpose would be served by recognizing a similar exception to the Shield Law. Whereas the attorney-client privilege is for the benefit of the client, as privilege holder, the protections recognized in the Shield Law are intended to allow the news media to serve the public. Indeed, describing the Shield Laws protections in common evidentiary privilege terms, while the news media may be the holder of the protection, the general public is deemed to be the overall beneficiary of the Shield Law protections."

This is certainly an interesting ruling, and, at least according to the appellants, one that goes against how most states have interpreted their reporter's privileges.  According to the appellants,

     "a majority of [Pennsylvania's] sister states have authorized exactly what appellants urge-judicially compelled production of a reporter's source where the communication was criminal or fraudulent. Appellants contend that only ten states seem to have an absolute statutory reporter's privilege, while thirty-six states permit compelled disclosure of a defamatory news article's confidential sources, even in the absence of evidence of crime or fraud. Further, appellants assert that no court in an 'absolute' shield law state has held that its shield law protects a reporter from disclosing the source of a communication when the requesting party has made a prima facie showing that the communication was itself criminal or false."

The Pennsylvania Supreme Court acknowledged this argument, but ultimately rejected it, finding that

     "While non-binding federal law and the law of our sister states is often informative, due to our Shield Laws absolute protection of a sources identity, the manner in which other jurisdictions have dealt with similar situations is of minimal value to the present appeal. In the cases referenced by appellants, the federal courts and courts in our sister states were interpreting their own, unique shield laws, or, as in [In re Grand Jury Subpoena, Judith Miller, 397 F.3d 964 (D.C. Cir. 2005)], the qualified reporters privilege. In resolving the present controversy, we have only the plain text of Pennsylvania's Shield Law. Moreover, even if case law from other jurisdictions were more directly relevant, appellants have not offered any authority demonstrating that a court in an absolute protection jurisdiction has ever recognized a non-textual crime-fraud exception to its shield law." 

-CM

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