Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

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Tuesday, October 21, 2008

British Judge Supports Introduction of Cameras Into Family Courts

In an extensive interview with the Times, Sir Mark Potter, President of the Family Division, indicated his support for a number of changes in court rules and other reforms, including the introduction of cameras into family courts, which he thinks would allow for more transparency. He told the paper, “In an age of transparency and amidst largely misplaced criticisms of ‘secret justice', it is clear that the public ... should have confidence in the judiciary.” Read more here in a Guardian article.

October 21, 2008 | Permalink | TrackBack (0)

Ofcom Official Hints BBC Funding Scheme May Change Over Time

Speculation continues over future funding for the BBC as Ed Richards, head of Ofcom told the Guardian that "we must be willing to look into more radical proposals for the future and we are willing to do that even if sometimes it is unpopular and controversial....We don't want to do anything that would damage the core services and programmes of the BBC. We think there are a range of credible options...." Parliament will make the final choices in terms of funding for the network. Read more here in a Guardian story.

October 21, 2008 | Permalink | TrackBack (0)

Monday, October 20, 2008

Pennsylvania Supreme Court Declines To Create "Crime Fraud Exception" To Shield Law

The Pennsylvania Supreme Court has decided that the state's reporter's shield law protects news media even if it receives and publishes information from a source about a criminal act.

Pennsylvania's Shield Law, 42 Pa.C.S. § 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.

...

On  January 7, 2005, appellants filed a civil complaint against The Tribune, The Scranton Times, and Henn (collectively "appellees"), claiming that the news articles were false and contained "defamatory statements, innuendo, and implications." Appellants further claimed that the articles' source engaged in "tortious, criminal, or contemptuous conduct," and stated that it is the policy of The Scranton Times-Tribune to waive any confidentiality if a "source lies to the newspaper." In support of their claim that the articles were false, appellants referenced the memorandum of Judge Garb, as well as the grand jury presentment, which did not contain any criticism of appellants by the grand jurors and described appellants as cooperative. Appellants maintained that they had exhausted all efforts to obtain the identity of the articles' source and, of central importance to the present appeal, demanded that appellees disclose the source.

Citing the Pennsylvania Shield Law and the First Amendment reporter's privilege, appellees refused appellants' requested disclosure. Appellants filed a motion to compel in the Court of Common Pleas of Lackawanna County ("trial court") and served appellees with  interrogatories seeking the identity of their source. Appellees again refused, citing the Shield Law and the reporter's privilege. Thereafter, the trial court received briefs from the parties and conducted a hearing on appellants' motion to compel.
...

On June 3, 2005, the trial court granted appellants' motion and ordered appellees to divulge the identity of the source for their January 12, 2004 articles. In his opinion, the Honorable Robert Mazzoni concluded that the privileges afforded reporters under the Shield Law and the First Amendment should not be asserted to the detriment of the grand jury system and an individual's constitutional right to reputation under the Pennsylvania Constitution. Judge Mazzoni found that when the Shield Law "clashes with the need to enforce and protect the foundation of the grand jury purpose, the Shield Law should relinquish its priority."

...

The trial court also distinguished this case from prior Shield Law cases by noting that here "[t]he communication does not talk about a crime -- it is the crime" and that the publication of purported grand jury information "significantly magnifies the criminal invasion and ultimately 'chills' and undermines the grand jury process."

...

Appellees filed a notice of appeal in the Superior Court pursuant to Pa.R.A.P. 313 (collateral order rule).  The trial court subsequently amended its order, stating that the order involved a controlling question of law and that an immediate appeal would materially advance the ultimate resolution of the matter, thus offering the prospect of another avenue for interlocutory review. In a published opinion, the Superior Court first determined that the order qualified as an appealable collateral order under Rule 313. On the merits, the panel concluded that appellees should not have been compelled to divulge the identity of their source, and accordingly reversed the order of the trial court.... The panel held that the trial court's recognition of a "crime-fraud" exception to the Shield Law conflicted with this Court's case law, notwithstanding the exception's limited application to violations of grand jury secrecy.... Specifically, the panel deemed itself constrained by In re Taylor, 412 Pa. 32, 193 A.2d 181 (Pa. 1963), which recognized that the Shield Law, as written, may allow reporters to conceal or cover up crimes, and Hatchard v. Westinghouse Broadcasting Co., 516 Pa. 184, 532 A.2d 346 (Pa. 1987), which reaffirmed Taylor's central holding that the Shield Law protects the identity of confidential sources. In conclusion, the panel stated that:

While we are both mindful of and sympathetic to the concerns of the learned trial court regarding possible criminal violations of the grand jury process vis-a-vis the Shield Law privilege, we, like the trial court, are forbidden from reading into the Shield Law an exception neither enacted by the General Assembly, nor found by the Supreme Court as the result of a developing body of law.

...

In an opinion concurring in the result, then-Judge (now Madame Justice) Debra Todd stated that she would leave open the possibility that there may be circumstances, such as the criminal prosecution of a grand jury leak, under which the Shield Law may have to yield.... Like the trial court, Judge Todd noted that, here, Henn was an integral part of, and possibly the sole witness to, a crime. But, continued Judge Todd, this is a defamation action and appellants are seeking the disclosure of a confidential source within that context....
The 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. Because the issue presented is a question of law, our scope of review is plenary and our standard of review is de novo.

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Appellants claim that the Shield Law should not protect appellees from disclosure because the communication between Henn and her alleged source violated the Grand Jury Act and thus constituted a criminal act.  Appellants explain that this is not a case where a newspaper properly obtained information from a source who had obtained the information illegally. Here, appellants contend, the communication between the reporter and the alleged source was itself a criminal act. Therefore, conclude appellants, this Court should devise a crime-fraud exception to the Shield Law. Referencing Taylor, supra, which analogized the reporter's privilege to the attorney-client and priest-penitent privileges, appellants maintain that the reporter's privilege cannot be more expansive than these other privileges, both of which contain a crime-fraud exception.

In urging this Court to adopt a non-textual crime-fraud exception to the Shield Law, appellants contend that, unlike the lower courts, "this Court has the inherent power and authority to interpret the Shield Law to not apply -- despite the statute's 'absolute' language -- where the reporter has been used to commit a fraud and/or a crime." ...Appellants assert that this Court has previously rejected the claim that the Shield Law is unambiguous and absolute, and has engaged in statutory interpretation beyond the statute's plain language. Noting that the operative language of the Shield Law, as well as Taylor's construction of that language, was set forth prior to the constitutionalization of defamation law, appellants contend that the Superior Court failed to recognize that the stringent burden of proof placed on "public official" defamation plaintiffs since New York Times v. Sullivan, supra, has caused this Court to gradually narrow the scope of the Shield Law. Further, appellants cite Hatchard's observation that if the Shield Law provided an absolute shield against discovery of any information in the possession of a defamation defendant, then the Shield Law may be unconstitutional given "the protection of other fundamental values protected by the Pennsylvania Constitution such as an individual's reputation."...

Appellants maintain that there are no reported Pennsylvania decisions, prior to this case, which have considered whether the Shield Law prevents discovery of an illegal communication. Contrary to the Superior Court's conclusion, appellants argue that neither Taylor nor Hatchard controls the resolution of the present issue. Appellants contend that, unlike the present case, neither Taylor nor Hatchard involved an illegal communication where the reporter participated in the commission of a crime. Addressing Taylor's broad reading of the Shield Law, which admittedly would allow reporters to conceal crimes, appellants argue that Taylor was referring to past crimes and not to communications which themselves are criminal. Thus, appellants submit that this is an issue of first impression.

Appellants liken the present scenario to Nadler v. Warner Co., 321 Pa. 139, 184 A. 3 (Pa. 1936), where, notwithstanding the "absolute" statutory language of the attorney-client privilege, this Court recognized a crime-fraud exception. Appellants assert that this Court has at one time held every type of privilege -- accountant-client, husband-wife, priest-penitent, psychologist-patient -- inapplicable where it would further a crime or fraud pursuant to our constitutional authority to interpret the scope and application of all evidentiary privileges, rather than pursuant to any regulatory authority over the parties to the privileges. Citing Commonwealth v. Bowden, 576 Pa. 151, 838 A.2d 740 (Pa. 2003), which described the Shield Law as protecting only "confidential" communications, appellants contend that the attorney-client privilege is similar to the Shield Law/reporter's privilege because both are directed at confidential communications. Appellants also note that the intent of each privilege is similar -- to promote open communications between the parties to the privilege. Because the interests behind the Shield Law will not be harmed by requiring The Scranton Times-Tribune to disclose the identity of a source whose information has twice been judicially determined to be false, appellants argue that a crime-fraud exception should be applied to prevent the Shield Law from being used to protect an illegal communication of no value. In further support of their position, appellants cite The Scranton Times-Tribune's own internal policy, which provides that agreements of confidentiality will not be honored if the source lies to the newspaper.

Appellants also maintain that a majority of our 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  [*21] 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.  Citing Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972), appellants also note that the U.S. Supreme Court has declined to recognize a reporter's privilege under the First Amendment. Further, appellants state that federal courts, most recently in In re Grand Jury Subpoena, Judith Miller, 365 U.S. App. D.C. 13, 397 F.3d 964 (D.C. Cir. 2005), have consistently required reporters to disclose confidential sources during litigation.

Finally, appellants contend that the Shield Law cannot protect a lie. Appellants also raise the possibility that Henn's "unnamed source close to the investigation" may have been largely, or entirely, fictional. If that were the case, argue appellants, appellees' invocation of the Shield Law is a continuing fraud upon the courts and frustrates any investigation into the alleged wrongdoing. In sum, appellants argue that a reporter should not be permitted to use the Shield Law to obstruct criminal or civil inquiries into the illegal disclosure and publication of false and/or defamatory information. The public policies underlying a reporter's privilege, continue appellants, are not furthered when a reporter knowingly participates in a crime or fraud.

Appellees maintain that this Court's Shield Law precedents should foreclose appellants'  arguments. First, argue appellees, this Court has already resolved appellants' primary claim -- that the Shield Law cannot protect the identity of a confidential source where the communication was criminal and/or fraudulent -- when it rejected that very argument in Taylor. Appellees dismiss as legally insignificant appellants' attempt to distinguish Taylor on grounds that Taylor did not involve a reporter who participated in criminal or fraudulent conduct. Appellees argue that Taylor addressed the precise issue before this Court today and concluded that the statutory right conferred by the Legislature must be applied even if the Shield Law's protections would operate to conceal evidence of a crime.

Second, continue appellees, appellants ignore this Court's decision in Sprague v. Walter, 518 Pa. 425, 543 A.2d 1078 (Pa. 1988), which held that the Shield Law applies with full force in the context of a defamation action and precludes the compelled disclosure of a defendant-newspaper's confidential source. Third, argue appellees, the Shield Law protects confidential sources notwithstanding the constitutional dimensions of an individual's fundamental right to his or her reputation under the Pennsylvania Constitution, a right that is naturally implicated in a defamation complaint. Finally, continue appellees, Hatchard rejected the very argument appellants now posit, i.e., the notion that the constitutionalization of defamation law permits or requires altering the plain text of the Shield Law.

Accordingly, appellees maintain that appellants' argument reduces itself to the proposition that Pennsylvania courts are free to carve out exceptions to plain and unambiguous statutes to serve competing policy interests, such as, as posed in this case, grand jury secrecy. Appellees argue that, even if principles of statutory construction did not foreclose such action, overriding the Shield Law's mandate in the context of this libel suit would not vindicate the interests advanced by the secrecy provision of the Grand Jury Act. This is so because whether a violation of grand jury secrecy occurred here is incidental to appellants' defamation action.

Appellees further contend that the plain language of the Shield Law precludes the creation of a crime-fraud exception. Contrary to appellants' argument, explain appellees, the attorney-client privilege and the Shield Law are not analogous. Appellees submit that the crime-fraud exception to the attorney-client privilege was recognized at common law prior to codification of the privilege. Conversely, appellees maintain, a judicially created crime-fraud exception to the Shield Law has no common law antecedent and would require this Court to override the express statutory language and legislative intent of the Shield Law. Appellees contend that, besides ignoring the plain meaning of the Shield Law, appellants' proposed exception would have this Court ignore a fundamental rule of statutory interpretation, which is that exceptions expressed in a statute shall be construed to exclude all others....

Responding to appellants' reference to the law of other jurisdictions, appellees assert that outside authority regarding the qualified reporter privilege is irrelevant. Appellees contend that federal cases..., are inapposite because they implicate the qualified reporter's privilege under federal law, not Pennsylvania's absolute Shield Law. Furthermore, appellees argue that the California authorities relied upon by appellants involve that state's qualified reporter's privilege rather than its shield law,  [*27] which, unlike Pennsylvania's Shield Law, provides immunity from contempt sanctions rather than an absolute privilege. Additionally, appellees assert that no appellate court in any jurisdiction has created an exception to an absolute shield law.

Finally, appellees argue that, contrary to appellants' claims, falsity has not been established in the present case and there is no evidence that any crime was committed. Appellees note that The Scranton Times-Tribune could not have been a party to the alleged crime because grand jury secrecy only applies to those who take the oath of secrecy. Moreover, appellees contend that it is unknown whether the source was one who took such an oath. Appellees also maintain that it is not a crime to publish and report on grand jury proceedings, even if the person providing the information is personally bound by grand jury secrecy. Appellees conclude that the crime-fraud exception urged by appellants would result in the impermissible punishment of The Scranton Times-Tribune for exercising its First Amendment rights.

...

While non-binding federal law and the law of our sister states is often informative, due to our Shield Law's absolute protection of a source's 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 Judith Miller, supra, the qualified reporter's 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.

Turning to appellants' analogt to recognized evidentiary privileges, 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....

In Nadler, supra, 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 Law's 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's protections.

The trial court's narrower crime-fraud exception, which would be applicable only in the grand jury context, whatever its value might be as a matter of policy, is also unsupportable. Section 4549 of the Grand Jury Act provides that persons sworn to secrecy during grand jury proceedings shall be in contempt of court if they reveal any information which they are sworn to keep secret....The reasons for ensuring grand jury secrecy have been described as follows:

(1) To prevent the escape of those whose indictment may be contemplated; (2) to insure the utmost freedom to the grand jury in its deliberations, and to prevent persons subject to indictment or their friends from importuning the grand jurors; (3) to prevent subornation of perjury or tampering with the witnesses who may testify before grand jury and later appear at the trial of those indicted by it; (4) to encourage free and untrammeled disclosures by persons who have information with respect to the commission of crimes; (5) to protect [the] innocent accused who is exonerated from disclosure of the fact that he has been under investigation, and from the expense of standing trial where there was no probability of guilt.

....

After considering what he deemed the "competing and conflicting" interests of the Shield Law and the Grand Jury Act, Judge Mazzoni, in his thorough opinion below, determined that "the Shield Law should relinquish its priority" and yield to the public interest in grand jury secrecy. Castellani, 73 Pa. D. & C.4th at 514. The trial court was of the opinion that striking such a balance and creating a limited exception to the Shield Law would put the news media on notice that "grand jury proceedings are confidential and are to remain so." Id.

While we share the trial court's concern for the integrity of the grand jury process, the exception it  recognized is not supported by the text of the Shield Law. It is, in the first instance, a question of policy suited to the legislative branch to align the values of the two potentially "competing" statutes. In addition, we note that hampering the news media in the performance of their essential function would not necessarily remedy or prevent violations of the Grand Jury Act. Only the grand jury participants are bound by the oath of secrecy, and it is their duty, as well as the responsibility of the courts, to uphold the integrity of the grand jury process. As for appellants' alleged "criminal communication," because only the individual swearing the oath can violate grand jury secrecy, it is the speaker in appellants' scenario, and not the listener, who has the capacity to commit a crime. Thus, under the present circumstances, although appellees may have published defamatory information, they did not commit a crime. Appellees may indeed have been on the receiving end of a criminal communication, but it was the opening of the speaker's mouth which violated the Grand Jury Act, not the attentiveness of the listener's ears. Of course, the media should act responsibly in exercising their statutory right, and when they do not, they may be answerable in defamation. And, examples of irresponsible journalism are known. But, the news media have a right to report news, regardless of how the information was received. The exception crafted by the trial court penalizes the news media for another's crime and is in direct tension with our decision in Taylor, which recognized that the Shield Law protects a journalist's source information from disclosure, even if such protection would conceal or cover-up a crime.

Notably, it appears that the alleged criminal violations of the Grand Jury Act in the present case were adequately investigated by the authorities without implicating the Shield Law. Following the allegations of a breach of grand jury secrecy involving appellee Henn, the supervising judges of both the Statewide Grand Jury and the County Grand Jury appointed special prosecutors to investigate the leaks. After receiving the prosecutors' reports, both were satisfied that the integrity of their respective Grand Juries had been maintained (though the reports only addressed potential breaches by the District Attorney's Office and the Attorney General's Office). Thus, the statewide special prosecutor's investigation and report did not reveal, and appellants have not proven, that the alleged violations actually took place. Revealingly, as then-Judge (now Justice) Todd noted in her concurrence below, this is a defamation case and "[t]he public interest in grand jury secrecy will be vindicated only indirectly." Castellani, 916 A.2d at 656(Todd, J., concurring). In other words, because this is a defamation action, where the plaintiffs are seeking monetary damages rather than the restoration of the grand jury's integrity, the public's interest in the free flow of information to the news media is not presently in conflict with the public's interest in grand jury secrecy.

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Accordingly, we reaffirm that the Shield Law prohibits the compelled disclosure of a confidential source's identity, or any information which could expose the source's identity. Thus, the Shield Law precludes the very type of discovery order issued in the present case. Furthermore, we reject the invitation to fashion a non-textual, "crime-fraud" exception to the operation of the statute. The Superior Court's reversal of the trial court's order compelling disclosure of The Scranton Times-Tribune's confidential source is affirmed.

The case is Castellani v. Scranton Times (decided Sept. 24, 2008)(2008 Pa. LEXIS 1547). Read the entire ruling here. Here's more from the Times-Tribune about the case.

October 20, 2008 | Permalink | TrackBack (0)

Little Rock, Arkansas TV Anchor Found Injured In Home; Hospitalized in Critical Condition

CNN reports that Anne Pressly, a news anchor for ABC affiliate KATV in Little Rock, was found injured in her home by her mother. She is now hospitalized in critical condition. Police are investigating and suspect her injuries may be the result of an intruder bent on robbery.

October 20, 2008 | Permalink | TrackBack (0)

Some Resources on Libel Tourism Legislation

The website/blog Finding Dulcinea offers this quick overview of the "libel tourism" issue.

October 20, 2008 | Permalink | TrackBack (0)

When You Can't Hit "Delete"

Siobhain Butterworth, the Guardian's "reader's editor", discussses whether ordinary people should be allowed to "unpublish" their comments after publishing them. As she says,

When you write a blog, agree to be interviewed, send a letter for publication or post a comment online, you are making a public statement in permanent form. That might seem screamingly obvious but, judging from the numbers of emails I get from people asking for material to be removed from the Guardian's electronic archive, it seems that some people still don't fully understand the implications of speaking to or even writing for a news organisation in the web age.

Read more of her thoughts here.

October 20, 2008 | Permalink | TrackBack (0)

Max Mosley Opens Up

The Guardian's Angelique Chrisafis interviews Max Mosley here.

October 20, 2008 | Permalink | TrackBack (0)

British Lawyers and Libel Tourism

The Guardian's Roy Greenslade's discusses the reaction of British media lawyers to the likely passage of a federal law against "libel tourism." Read more here.

October 20, 2008 | Permalink | TrackBack (0)