Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Wednesday, October 25, 2006

Federal Judge Rules That First Amendment Protects Confidential Survey Results

From a UCG press release:

ROCKVILLE, MD, Oct. 19, 2006–In a First Amendment win for journalists, a federal judge has ruled that UCG does not have to disclose the identities of subscribers who responded to a confidential reader survey. The ruling came nearly a year after UCG was subpoenaed for the information as part of a civil lawsuit. The Funeral Consumers Alliance, which filed an anti-trust lawsuit against three public funeral home companies and a casket supplier, last year subpoenaed Funeral Service Insider, a UCG newsletter. The Alliance wanted the names of funeral directors who had responded to a reader survey in 2004, arguing that the survey responses amounted to confessions by funeral directors to having participated in an illegal boycott of third-party casket sellers.

“This is information that nobody is going to give to the press if they’re not promised confidentiality,” said U.S. Magistrate Judge Jillyn K. Schulze, in announcing the decision. “If they don’t think this information is privileged, you don’t get this information. You don’t just hamper the press; you cut the press off in a situation like this.”

UCG refused to produce the identity of the survey participants, because such information constituted protected source information under the First Amendment. Funeral Service Insider guaranteed anonymity to readers who answered the on-line survey.

“When we promise confidentiality to our sources, we keep that promise, even if it means we have to go to court,” said UCG partner Dan Brown.

The Funeral Consumers Alliance sought a judge’s order to compel UCG to turn over the information.

Judge Schulze ruled in favor of UCG after a hearing on Oct. 5 in Greenbelt, Maryland.

She said that Funeral Service Insider could not have gotten the story without the confidential survey.

“This is exactly the kind of investigative reporting an individual reporter could not do,” without using a computer-assisted national survey," she noted. The judge said “the balance weighs so heavily on reporter’s privilege in this case that it’s not even close.”

William L. Webber of Howrey LLP, a Washington, D. C. law firm that represented UCG, said news reporters often win such disputes in civil cases. “The judge correctly concluded that, in this case, the reporter’s qualified privilege under the First Amendment to maintain the confidentiality of news sources had to prevail over the Funeral Consumer Alliance’s professed need for this information in its private antitrust suit,” Webber said.

Founded in 1977, UCG is one of America's leading providers of specialized business-to-business information. It is based in Rockville, Md.

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