New York Law Journal
October 16, 1978
Page 1, Column 1
News Media and the Law
By James C. Goodale
Mr. Goodale, a member of the New York Bar who writes this column as a regular
feature of the Law Journal, is an executive vice president of The New York Times
Company.
Litigation Involving Reporter’s Privilege
While the Farber case has attracted all the headlines recently, other reporter’sprivilege litigation throughout the country has continued unabated — and has gone
largely unnoticed. Typical of cases involved in such litigation is a case decided a few
months ago and recently reported from the Supreme Court of Wisconsin — Zelenka v.
State.1 This case held that a defendant in a first-degree murder case did not have a Sixth
Amendment right to force a reporter to disclose his sources.
In Zelenka, an underground paper, The Take-Over, of Madison, Wis., reported
that a victim in a drug-murder case had been supplied funds — stolen by the murderers
— by local narcotic authorities in exchange for a promise to drop drug charges against
the victim. The defendant argued that he needed to know the source of the article to
prove the defense of entrapment. The Wisconsin Supreme Court held, however, that
under the United States Supreme Court’s decision in Branzburg v. Hayes2 and under the
Wisconsin equivalent of the First Amendment, that there was a qualified privilege not to
testify.
On the date of his death, the victim who had the unfortunate name of Posthuma,
left his rural Wisconsin home with $2,100 in cash in order to purchase drugs from the
defendant Zelenka and two companions. Posthuma was killed and the money stolen.
Zelenka’s defense was that his companions did the killing and that he had withdrawn
from the conspiracy. He subpoenaed the local newspaper in order to determine whether
he had an entrapment defense.
1
Zelenka v. State, 83 Wis. 2d 601, 266 NW 2d 279 (Wis. 1978).
2
Branzburg v. Hayes, 408 U.S. 665 (1972).
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Reporter’s Defense
Wisconsin has no shield law and the reporter relied on a First Amendment
defense as articulated in Branzburg. If there had been a shield law, the defendant, of
course, would have relied on both the shield law and the First Amendment. The
Wisconsin Supreme Court held that Branzburg was sufficient authority for the reporter’s
refusal to testify and that there was no “basis for concluding that he [the defendant] was
denied a fair trial.”3
Zelenka argued “that no newsman’s privilege presently exists because of the
United States Supreme Court decision in Branzburg v. Hayes.”4 The Wisconsin court,
however, pointed out that this was an incorrect interpretation of Branzburg since all that
case held was that a journalist’s testimony could be compelled where he had refused to
testify before a grand jury as to a crime he had witnessed: “Branzburg can be limited to
its narrow holding — that there is no First Amendment privilege to refuse to testify
before a grand jury where the journalist had witnessed criminal activity.”5
Of course, the Wisconsin court’s view of Branzburg rests on Justice Powell’s
opinion in which — as in many of his other decisions (e.g., Bakke)6 — he made a
majority opinion possible against the force of four dissents. Because of the limited nature
of Justice Powell’s opinion and because of other statements made in it, many courts have
held that reporters were entitled to a qualified privilege not to testify. As the Wisconsin
court pointed out, “Justice Powell clearly recognizes the existence of a privilege of
nondisclosure. He stated that a journalist could claim a privilege, which privilege should
then be considered in light of a balancing between freedom of the press and the
obligation of citizens to give testimony with respect to criminal conduct.”7
Qualified Privilege
It should be emphasized that the privilege urged upon the court by the press and
adopted by the Wisconsin Supreme Court was a qualified privilege and not an absolute
constitutional privilege as far as I know but always for a qualified one which can be
3
Zelenka, supra, 266 NW 2d at 287.
4
Id. at 286.
5
Id.
6
Regents of the Univ. of California v. Bakke, 98 S. Ct. 2733 (1978).
7
Zelenka, supra, 266 NW 2d at 287.
2
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divested upon a showing of (1) a compelling need for the testimony (2) relevancy and
(3) unavailability of the testimony from other sources.8
It would seem that this approach is a moderate approach to cushion conflicting
claims in fair trial-free press and other cases but it should be noted the test has been
heavily criticized as being too moderate. Justice Douglas said in Branzburg that “The
New York Times, whose reporting functions are at issue here, takes the amazing position
that First Amendment rights are to be balanced against other needs or conveniences of
government.”9 And Judge Oakes, concurring in a libel case presently before the Supreme
Court, Herbert v. Lando,10 said that the equivalent of such a balancing test was
“defective.” It was his view that only an absolute test would protect the press: “[T]he
compromise test is vague, difficult of application, and hence likely to be the subject of
constant litigation . . . [T]he resulting litigation over the ‘directly-related,’ ‘highlyrelevant,’ and ‘otherwise-unobtainable’ standards are not merely likely to make editors
more cautious, but inevitably require them to be.”11
Yet, the Wisconsin Supreme Court holds that this test is an appropriate solution to
fair trial-free press problems where there is no shield law. That court had had the very
same problem before it seven years ago in State v. Knops,12 a case involving a grand jury
investigation of a bombing of a building on the Wisconsin campus in which one student
was killed and several others injured. The grand jury subpoenaed an editor of the student
newspaper who refused to answer questions concerning the identity of students who
placed the bombs that blew up the building.
Court’s Ruling
The Wisconsin Supreme Court held that Knops, the editor, had a qualified
privilege not to testify unless the state could show: “(1) the substantiality of the state
interest to be served by compelling the testimony and (2) the lack of an alternative
8
See generally Goodale, Branzburg v. Hayes and the Developing Qualified Privilege
for Newsmen, 26 Hastings L.J. 709 (1975).
9
Branzburg, supra. 408 U.S. at 713 (Douglas, J. dissenting).
10
Herbert v. Lando, 568 F. 2d 974 (2d Cir. 1977), cert. granted, 98 S. Ct. 1483 (1978).
11
Id. at 994.
12
State v. Knops, 49 Wis. 2d 647, 183 NW 2d 93 (1971).
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method, less restrictive of First Amendment rights, by which such objective could be
served.”13 The case was decided before Branzburg reached the Supreme Court.
In Zelenka, the defendant argued that Branzburg had overruled Knops. The
Wisconsin Supreme Court disagreed, holding that “the privilege recognized by this court
in Knops and the balancing test therein has continuing validity under both the Wisconsin
Constitution and under the United States Constitution even after Branzburg.”14
The Supreme Court of Wisconsin is not the only court to have reached this
conclusion. There have been approximately eighty cases involving reporter’s privilege
since Branzburg – over twenty in the last year – and a majority of them have held a
qualified privilege exists along the lines of The New York Times test denounced by
Douglas.15 Indeed as the Wisconsin court itself notes “most courts have used a balancing
test like that proposed by Justice Powell.”16 Some of the Supreme Courts that have
adopted the test are the Supreme Courts of Kansas, Vermont, Virginia, Florida and
Iowa;17 Federal courts adopting the test include the D.C., second, and ninth circuits.18
In Farber,19 The New York Times made the same argument as made in Zelenka
and in the other cases decided since Branzburg that Farber should not be obliged to turn
over his notes unless the three-part test stated above had been met. This argument was
made only arguendo in the event that the New Jersey courts “pierced” the state’s shield
13
Id., 183 NW 2d at 99.
14
Zelenka, supra, 266 NW 2d at 287.
15
See generally Goodale, “Subpoenas,” Communications Law 1978 (Practising Law
Institute).
16
Zelenka, supra, 266 NW 2d at 287.
17
In re Pennington, 224 Kan. 573 (Sup. Ct. 1978); State v. St. Peter, 132 Vt. 266, 315
A. 2d 254 (1974); Brown v. Commonwealth, 214 Va. 755, 204 SE 2d 429 (1974);
Morgan v. State, 337 So. 2d 951 (Fla. Sup. Ct. 1976); Winegard v. Oxberger, 258
NW 2d 847 (Iowa Sup. Ct. 1977), cert. denied, 98 S. Ct. 2234 (1978).
18
See Carey v. Hume, 492 F. 2d 631 (D.C. Cir.), cert. dismissed under Rule 60, 417
U.S. 938 (1974); Baker v. F&F Investment, 470 2d 778 (2d Cir. 1972), cert. denied,
411 U.S. 966 (1973); Farr v. Pitchess, 522 F. 2d 464 (9th Cir. 1975), cert. denied, 427
U.S., 192 (1976).
19
In re Farber, 4 Med. L. Rptr. 1360 (N.J. Sup. Ct. Sept. 21, 1978).
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law which specifically stated reporter’s notes did not have to be turned over to “any
court.”20 Specifically, The Times argued a reporter’s notes did not have to be turned over
for an in camera inspection until the defendant made a showing of materiality, relevance
and necessity for such production.
On appeal, The Times and Farber were joined by the New Jersey Attorney
General in arguing to the New Jersey courts that a hearing should be held on the threepart test before requiring production of the notes. The position taken by the Attorney
General was most unusual since he was obligated to prosecute Farber’s criminal
contempt. Yet, he agreed with Farber and The Times that a hearing should be held. He
has also taken the same position in the United States Supreme Court where he supported
The Times position for certiorari rather than oppose it.
One of the great ironies in the Farber case is that the New Jersey Supreme Court
agreed with this “three-part test” before requiring an in camera inspection.
“[It’s] the obligation of the defense to satisfy the trial judge, by a fair
preponderance of the evidence including all reasonable inference, that there was a
reasonable probability or likelihood that the information sought by the subpoena was
material and relevant to his defense, that it could not be secured from any less intrusive
source, and that the defendant had a legitimate need to see and otherwise use it.”21
(Emphasis supplied).
Thus, having agreed “The New York Times test” applied, the New Jersey Supreme
Court refused to apply the test to The Times itself, concluding in the case of The Times
the hearing would be a useless act. The court did hold, however, that if the Farber facts
were duplicated sometime in the future a subpoenaed newspaper and its reporter would
be entitled to such a hearing.
“[W]e agree . . . that appellants should be afforded the hearing they are seeking,
one procedural aspect of which calls for their compliance with the order for in camera
inspection, we are also of the view that they, and those who in the future may be similarly
situated are entitled to a preliminary determination before being compelled to submit the
subpoenaed materials to a trial judge for such inspection.”22
20
NJSA 2A:84 A-21 (N.J. Shield Statute).
21
In re Farber, supra, 4 Med. L. Rptr. at 1366.
22
Id.
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Zelenka and Farber, and the Wisconsin Supreme Court and the New Jersey
Supreme Court have this much in common: they both find a qualified privilege for
reporters not to divulge their sources. One difference is that in Zelenka the decision was
based upon the First Amendment itself; in Farber it was based upon a reading, however
grudging, of a state shield law. Moreover, in Zelenka, the reporter could enjoy the fruits
of his victory; but in Farber the price of victory — leaving the shield law question aside
— was continuing imprisonment for the reporter and extremely heavy fines for his
employer.
Mr. Goodale is a lecturer of law at the Yale Law School and a member of the
Special Committee on Communications Law of The Association of the Bar of the
City of New York.
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