Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, September 2, 2005

Vermont Supreme Court Reverses Lower Court--Station Not Entitled to Qualified Privilege

Overenthusiastic BoSox fans rioted on the University of Vermont campus in the early morning of October 21, 2004. Reporters from WCAX caught the event on tape. When the Chittenden County State's Attorney Office sought to get outtakes of that coverage for possible prosecution, WCAX refused, citing the First Amendment, since Vermont has no reporter's shield law. A trial court agreed and refused to issue the DA's requested subpoena, "indicat[ing] at the outset that WCAX was entitled to a qualified privilege that could be overcome only if the State had made sufficient efforts to exhaust other, nonprivileged sources of information. At that time, the trial court was not satisfied with the State's efforts. The State did more investigation and asked the court to issue a second subpoena.  The court heard the case on the second request and again held that the State had not met its burden to adequately investigate other avenues of information."

In reversing the court, the Vermont Supreme Court held that, "[i]In the circumstances of this case, no privilege, qualified or otherwise, excuses   WCAX from furnishing the videotape of the riot.  Therefore, the State did   not have to show that the materials were available from other sources.  The facts here are essentially indistinguishable from those in Branzburg v.Hayes, 408 U.S. 665 (1972), in which the United States Supreme Court held that there is no constitutional privilege under the First Amendment that excuses reporters from appearing and testifying before grand juries
investigating criminal conduct, even if the source of their information is confidential." Further, the Court held that "This case does not, of course, involve the protection of any confidential source, as the WCAX reporters witnessed and videotaped a public event that was exposed for all to see.  But the Court's statements regarding the duty of reporters who have witnessed crimes, and the policy
considerations that may be implicated on such occasions, apply with equal force here.  With respect to a reporter's concealment of evidence of a crime, the Court stated, [W]e cannot seriously entertain the notion that the First Amendment protects a newsman's agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it. Insofar as any reporter in these cases undertook not to reveal or testify about the crime he witnessed,  his claim of privilege under the First Amendment presents no substantial question.  The crimes of news sources are no less reprehensible and threatening
to the public interest when witnessed by a reporter than when they are not.....Even accepting the asserted fact that some news sources might  "dry up" as a result of its decision, the Court found that the public interest in future news about crimes was of less weight than the interest in prosecuting crimes already committed.  While the press has the right to withhold whatever information from publication that it chooses, the exercise of that right does not grant the press a First Amendment "exemption" from the ordinary duty of all citizens to furnish relevant information to a grand jury.... Branzburg is controlling here notwithstanding the fact that the State's Attorney proceeded by way of an inquest pursuant to 13 V.S.A. ยง  5131, rather than by convening a grand jury.   Like a grand jury investigation, an inquest is a process whose purpose is to aid in the
inquiry into the existence of probable cause to believe that a crime has been committed..... "

Read the entire opinion here.

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