FOUND AND LOST: RECLAIMING THE PRESS PRIVILEGE FOR NONCONFIDENTIAL INFORMATION.

• Author: McCraw, David

INTRODUCTION

For nearly thirty years, New York State has recognized a qualified right of journalists to withhold nonconfidential but unpublished editorial materials in the face of subpoenas from investigators and litigants. (1) But two recent appellate decisions have raised questions about the vitality of that protection: both criminal cases, both involving murders, both involving jailhouse interviews, and neither on its face the kind of case in which one would expect to find courts making important decisions shaping the future of press law in New York. (2)

The first case involves "Ramona Moore[, who] was last seen on July 31, 2012, when she vanished from her residence in the Bronx." (3) Nearly two years later, her landlord, Nasean Bonie, was charged with her murder. (4) On December 15, 2014, as Mr. Bonie sat in a New York City jail, he was interviewed on camera by a local television crew for nearly thirty minutes. (5) He denied killing Ms. Moore. (6) A few weeks later, News 12, The Bronx, aired some sixty seconds of the interview as part of a show entitled "Burden of Proof." (7)

The second case involves the infamous murder of "Baby Hope," a death that had once captured the attention of New Yorkers. (8) In July 1991, police discovered near the Henry Hudson Parkway the body of a four-year-old girl. (9) The anonymous victim, who had been sexually assaulted and suffocated, came to be known as "Baby Hope." (10) Her murder, dramatically reported by New York's tabloids, remained unsolved for more than two decades. (11) Then, in 2013, police came upon new leads and learned that the girl's name was Anjelica Castillo. (12) A short time later, Conrado Juarez, one of Anjelica's cousins, was charged with murder. (13) As Juarez remained in jail on Rikers Island, he was visited by New York Times reporter Frances Robles and sat down for an interview in which he denied killing the little girl. (14) Ms. Robles's story appeared in the paper a short time later. (15)

In 2016, the two cases became the latest battlegrounds in the fight over the scope and strength of New York State's "Shield Law." (16) Skirmishes between prosecutors and reporters over anonymous sources have been in the public spotlight since the U.S. Supreme Court's 1972 decision in Branzburg v. Hayes, (17) in which the Court refused to quash three subpoenas on reporters who declined to identify sources during grand jury investigations. (18) But Bonie and Juarez were different. They involved the Shield Law's separate protection, under subdivision (c), for nonconfidential material collected by journalists but not used in their stories or broadcast reports. (19) The Shield Law contains an absolute privilege for confidential information, but sets out a three-prong qualified privilege for unpublished nonconfidential information. (20) Several years ago, the Court of Appeals candidly admitted: "[T]here are uncertainties concerning the application of the outer reaches of our statute, particularly the scope of the qualified privilege for nonconfidential news." (21)

In light of that uncertainty, it was not surprising that the same appellate court would come to different results in cases that had basic similarities. In Bonie, the First Department ordered News 12 to turn over its unaired footage from the jailhouse interview. (22) In Juarez, the First Department veered the other way, quashing the subpoena served on the reporter. (23)

Yet, in neither Bonie nor Juarez did the appellate division delve deeply into the language of the statutory privilege or grapple with the policy and philosophy that underlie the Shield Law's protection for unpublished materials. (24) It was a lost opportunity in an area that the Court of Appeals acknowledges is lacking in clear precedent. (25) More than that, both decisions continue a judicial trend of diluting the applicable standard and, by doing so, eroding the intended protection of the press.

To be sure, for courts accustomed to dealing with privileges that grow out of confidential relationships--attorney-client, physician-patient, cleric-parishioner, reporter-source--subdivision (c) is a strange legal cousin. Why do reporters need a privilege to cover information that was given to them with the expectation and understanding that it could be published or aired? What public good is advanced by such a privilege? Where should the courts draw the outer boundaries of the privilege, which by the very terms of subdivision (c) is qualified?

While subdivision (c) resides in the long shadow of the much more prominent Shield Law provision protecting confidential sources, it is an essential bulwark of press freedom. Arguably, it is a more consequential provision for work-a-day journalism because it applies to virtually every news report that appears in a newspaper, on television or radio, or on a news website in New York. (26) Yet, neither Bonie nor Juarez provides the sort of jurisprudential foundation that is needed to assure that press freedom receives the protection afforded by the Shield Law. If anything, by moving away from strict application of the formal three-part test contained in the Shield Law and relying on an amorphous determination of whether the evidence is "necessary," the courts make it more likely that subpoenas from investigators and litigants will interfere with the legitimate and important news gathering activities of New York journalists. Now that leave to appeal has been granted in Juarez, these issues may again be front and center for the New York courts. (27)

1. THE HISTORY OF THE REPORTER'S PRIVILEGE IN NEW YORK

   The privilege for unpublished information is ultimately rooted in the legal battles over the privilege to protect confidential sources. (28) New York's original Shield Law was passed in 1970. (29) It made no mention of unpublished nonconfidential information and instead addressed solely the confidential source privilege, now embodied in subdivision (a), which provides an absolute privilege to journalist's confidential sources and information. (30) That privilege became a focal point of national attention two years later when three confidential sources cases made their way to the U.S. Supreme Court: Branzburg v. Hayes, In re Pappas, (31) and United States v. Caldwell. (32) At issue in each was whether the First Amendment embodied a constitutional privilege that would permit journalists to avoid having to disclose the identities of confidential sources. (33)

   Advocates for the press saw the trilogy of cases as providing the Supreme Court with an opportunity to carry forward its groundbreaking jurisprudence expanding First Amendment protections. (34) In 1964, the Court had revolutionized libel law in New York Times v. Sullivan (35) establishing that public officials could not prevail in libel actions without showing that the publisher had acted with reckless disregard for the truth. (36) Three years later, in Curtis Publishing Co. u Butts (37) and Associated Press v. Walker, (38) the Court expanded the Sullivan rule to public figures. (39) In 1971, in the Pentagon Papers decision, the Court refused to permit the government to enjoin the publication of classified information in a decision that left little doubt that prior restraints would rarely be tolerated, if at all. (40)

   In the Branzburg cases, the press stopped short of advocating for an absolute privilege to protect the identities of sources. (41) Instead, the journalists argued for a qualified constitutional privilege under which a subpoena seeking confidential sources would be quashed unless it was shown that the need for the information was compelling and no alternative sources were available. (42) By a 5-4 vote, the Court declined to adopt a constitutional "reporter's privilege" of any sort. (43) The Court's decision was, as the dissenters said, "enigmatic," thanks to a concurrence by Justice Powell that stressed that reporters subpoenaed to testify "are without constitutional rights" and that "[t]he asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct." (44) Indeed, in the aftermath of Branzburg, various federal courts found that there was a qualified First Amendment privilege. (45) Some federal courts found a privilege applicable to unpublished information, although the U.S. Court of Appeals for the Second Circuit declined to say whether it was acting under the First Amendment or as a matter of federal common law. (46) In recent years, many federal courts have turned hostile to the idea that Branzburg created a constitutional privilege in respect to grand jury subpoenas, most notably in the U.S. Court of Appeals for the Fourth Circuit's decision involving New York Times journalist James Risen. (47) Its scope is more in doubt than ever.

   But whatever the proper interpretation of Branzburg, that decision laid out the competing interests that would come to illuminate the debate over the subdivision (c) privilege: the long-held principle that every citizen has an obligation to provide evidence balanced against the recognition that the right to publish will often be rendered hollow without some protection for news gathering. (48)

   The issue of protecting unpublished information made its way to the Court of Appeals in 1987 in Knight-Ridder Broad. Co. v. Greenberg. (49) Greenberg involved the reporting of an Albany television station on the disappearance of a local woman. (50) As the hunt for the woman unfolded, WTEN-TV interviewed her husband, Donald Bent. (51) The station then aired a minute of the interview. (52) Later, Mrs. Bent was found dead in the trunk of a car and investigators' suspicions turned to her husband. (53) The District Attorney subpoenaed the tape of the WTEN interview. (54)

   Knight-Ridder, the owner of WTEN, moved to quash the subpoena on the basis of the Shield Law. (55) The...