Communications and Media Law
New York Law Journal
December 3, 1993
Bruce Cutler’s Surprising Victory Over the Press
A recent decision by the Second Circuit, United States v. Cutler,1 in favor of
Bruce Cutler, the lawyer for Mafia clients, has surprised the media bar. In that case the
Second Circuit granted Cutler the right to subpoena notes and video outtakes of reporters
in order to defend himself against charges he tried the Gotti case in the press in violation
of court rules.
The case is surprising because the Second Circuit seems to have done a turnabout
from recognizing a privilege for reporters not to disclose their sources or information (the
“reporter’s privilege”) to the reverse. Since its landmark decision in Baker v. F & F
Investment in 1972,2 the Second Circuit has heretofore been on the cutting edge of the
articulation of this privilege.
Cutler’s case grew out of statements he made on TV and to newspaper reporters
in the Gotti case before he was disqualified as the mafia boss’s counsel. To defend
himself, Cutler subpoenaed print and TV reporters to prove the “context” of what he said.
He needed the “context,” he argued, because he had not tried the case in the press
at all but was merely defending himself against charges of impropriety. To make this
defense he needed a record of everything he said, not just what the press had printed or
what the TV stations had shown.
In Baker, the Second Circuit in 1972 quashed a subpoena to a reporter to disclose
his sources in a civil case, concluding that no showing had been made under the First
Amendment that the information was needed or unavailable from alternative sources. A
decade later the same court extended this privilege to a criminal case in United States v.
Burke, quashing a criminal defendant’s subpoena to a Sports Illustrated reporter that
sought his notes for purposes of cross-examination by the defendant.3
1
United States v. Cutler, 1993 U.S. App. Lexis 24752 (2d Cir. Sept. 23, 1993).
2
Baker v. F & F Investment, 470 F2d 778 (2d Cir. 1972), cert. denied, 411 U.S. 966
(1973).
3
United States v. Burke, 700 F2d, 70, 76-78 (2d Cir.), cert. denied, 464 U.S. 816
(1983).
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Reporter’s Privilege
Under Burke and Baker the law was clearly settled in the Second Circuit. To
obtain confidential or unpublished documents (e.g., reporters’ notes and videotape not
broadcast [outtakes]), the party requesting the information had to show it was “highly
material and relevant, necessary or critical to the maintenance of the claim, and not
obtainable from other available sources.”4 This three-part test formed the essence of the
“reporter’s privilege.”
Not only did Baker and Burke clearly settle Second Circuit law in this regard,
these decisions led state after state, and federal circuit after federal circuit, to recognize
this privilege. Since Baker, nationwide there have been at least 450 cases litigating the
nature of this privilege. This privilege in some form or another is recognized in 46 states
and 10 federal circuits.5
It is clear that applying this three-part test to Cutler means that Cutler loses and
the press wins. Cutler subpoenaed the press to find out what he said and the
circumstance of what he said. There are, however, many alternate sources for this
information: notably Cutler himself6 and anyone else who heard what he said to the press.
Cutler’s case, therefore, flunks the third part of the three-part privilege test.
Faced with a clear line of cases in the Second Circuit that would require a press
victory in this case, the court was required to distinguish these cases. The court
concluded the reporter’s privilege does not apply when reporters witness an alleged
crime.
Cutler was committing a crime by talking to the press about his case; the press
witnessed the crime, ergo the press will have to testify about what it heard and saw. The
court noted the Supreme Court had held in Branzburg v. Hayes7 that reporters must
4
Id. at 77.
5
James C. Goodale, et al., “Reporter’s Privilege Cases,” in 2 P.L.I., Communications
Law 1992 at 237-1033. See also 2 P.L.I. Communications Law 1993 at 391-879.
The number of 46 given for the states includes the 29 states and the District of
Columbia that now have some form of shield law for reporters.
6
This assumes no assertion of a Fifth Amendment privilege. Applying the three-part
test, the Second Circuit should have at the very least returned the case to the trial
court for such assertion and a showing of exhaustion of other alternative sources.
7
Branzburg v. Hayes, 408 U.S. 665 (1972).
2
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testify before a grand jury when they witnessed crimes. Ignoring the difference between
the broad sweep of a grand jury subpoena in Branzburg and the defendant’s subpoena in
Cutler, the Second Circuit applied Branzburg.
Cutler is not the only case in New York where a subpoena has been issued to a
reporter for witnessing a crime of so-called illegal speech. In Beach v. Shanley,8 a
reporter was subpoenaed to disclose the source of a grand jury leak. Since it is a crime in
New York to leak grand jury information, the reporter was asked to disclose his source to
enable prosecution of the leaker. The New York State Court of Appeals held the reporter
was protected under the state shield law.
Judge, Jury, Prosecutor, Legislator
One of the ironies of the Cutler decision is that a reporter in a similar situation
now has more protection in New York state court than in federal court. In 1990, New
York State amended its shield law to protect even non-confidential information, unless
the party seeking the information makes “a clear and specific showing that [the
information] (i) is highly material and relevant; (ii) is critical or necessary to the
maintenance of a party’s claim, defense or proof of an issue material thereto; and (iii) is
not obtainable from any alternative source.”9
This statutory language comes from the Baker and Burke decisions and if applied
to Cutler would result in a press victory.
One senses the reason the Second Circuit went off its beaten track in Cutler is its
concern that, in calling for the prosecution of Cutler for trying his case in the press, the
judiciary was acting as judge, jury, prosecutor and even legislator. In other words, the
Second Circuit (1) made the rule forbidding lawyers from talking about their case; (2)
alleged the rule was broken; (3) arranged for a prosecution of that alleged breach, and (4)
will decide without a jury whether Cutler is guilty or not.
In these extreme circumstances, where the Sixth Amendment rights of Cutler are
stretched to the limit, the Second Circuit is not about to limit those rights further by
balancing them against the First Amendment rights of the press.
In this analysis is correct, then Cutler should properly be regarded as an off-track
case limited to is peculiar and particular facts. Cutler does not really need the
8
Beach v. Shanley, 62 NY2d 241, 465 NE2d 304, 476 NYS2d 765 (1984).
9
N.Y. Civ. Rights Law §79-h(c) (1992).
3
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information to find out what he said. He already knows. It is relevant for Cutler to have
the information, but his case does not depend on it.
To expand this reasoning to a broad principle that only a modest showing of
relevance is needed to enforce a subpoena against the press in the federal courts in New
York would align the Second Circuit with a small minority of jurisdictions rather than
with the majority the Circuit itself created.
4
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