Ventura v. the Cincinnati Enquirer: the Sixth Circuit Correctly Determined a News Reporter's Disclosure of a Confidential News Source's Criminal Acts to Law Enforcement Was Absolutely Privileged, but the Court Improperly Ignored

• Publication year: 2022

39 Creighton L. Rev. 961. VENTURA V. THE CINCINNATI ENQUIRER: THE SIXTH CIRCUIT CORRECTLY DETERMINED A NEWS REPORTER'S DISCLOSURE OF A CONFIDENTIAL NEWS SOURCE'S CRIMINAL ACTS TO LAW ENFORCEMENT WAS ABSOLUTELY PRIVILEGED, BUT THE COURT IMPROPERLY IGNORED

Creighton Law Review

Vol. 39

VENTURA V. THE CINCINNATI ENQUIRER: THE SIXTH CIRCUIT CORRECTLY DETERMINED A NEWS REPORTER'S DISCLOSURE OF A CONFIDENTIAL NEWS SOURCE'S CRIMINAL ACTS TO LAW ENFORCEMENT WAS ABSOLUTELY PRIVILEGED, BUT THE COURT IMPROPERLY IGNORED WHETHER THE CONFIDENTIALITY AGREEMENT WAS ENFORCEABLE UNDER A PROMISSORY ESTOPPEL THEORY

INTRODUCTION

Stories of news reporters going to prison to protect the identity of confidential news sources present difficult questions about the function of the media in our society.(fn1) Historically, reporters have kept their promises not to divulge the identity of their confidential news sources.(fn2) More recently, in 2003, the most prominent leak investigation related to the disclosure of the identity of Valerie Wilson as an undercover agent for the Central Intelligence Agency.(fn3) Reporters were subpoenaed to testify about their news sources.(fn4) Judith Miller, who was a New York Times reporter at the time, initially refused to disclose her source and spent eighty-five days in jail as a result.(fn5) Miller finally appeared before the grand jury after her source voluntarily released her from her promise of confidentiality with respect to their conversations.(fn6) However, a handful of reporters have begun to not only willingly divulge the identity of their confidential sources, but have also tried to gain constitutional protection in doing so.(fn7)

In Ventura v. Cincinnati Enquirer,(fn8) the United States Court of Appeals for the Sixth Circuit was confronted with a promissory estoppel claim based on the alleged breach of a reporter-source confidentiality agreement.(fn9) George G. Ventura ("Ventura") furnished information that he obtained illegally from accessing private voice mailboxes of his former employer, Chiquita Brands International, Inc. ("Chiquita"), to a Cincinnati Enquirer ("Enquirer") newspaper reporter in exchange for a promise to protect his identity as a confidential news source.(fn10) Ventura maintained Enquirer breached its promise of confidentiality by disclosing certain information, which identified him as the news source, pursuant to a grand jury subpoena.(fn11) As a result, Ventura was convicted for his unlawful entry into the Chiquita voice mail system.(fn12) Ventura's action against Enquirer included a claim based on the doctrine of promissory estoppel.(fn13) Under the circumstances, the Sixth Circuit determined disclosure of statements and other evidence to a grand jury was absolutely privileged under Ohio law.(fn14) Accordingly, the Sixth Circuit affirmed the district court's grant of summary judgment on Ventura's promissory estoppel claim.(fn15)

This Note will begin by reviewing the facts and holding of Ventura v. Cincinnati Enquirer.(fn16) This Note will then discuss the development of the law relating to reporter-source confidentiality agreements.(fn17) This Note will also examine pertinent cases involving promissory estoppel claims in the context of reporter-source confidentiality agreements, the absolute privilege and immunity doctrine under Ohio law in the context of judicial proceedings, the applicability of absolute privilege to the reporting of criminal activity, and the bar on recovery for damages proximately caused by dishonest conduct.(fn18) This Note will show the Sixth Circuit (1) failed to recognize the development of the law regarding reporter-source confidentiality agreements and (2) ignored the importance of a promissory estoppel claim in the context of a breach of a confidentiality agreement.(fn19) However, this Note will also demonstrate the Sixth Circuit (1) correctly determined the absolute privilege and immunity doctrine applied to oral or written state-ments submitted to a prosecutor or grand jury relating to the reporting of a crime, (2) correctly recognized Ohio public policy prohibited the enforcement of an agreement not to report criminal activities to authorities, and (3) correctly determined a source cannot recover damages proximately caused by his own criminal acts.(fn20)

FACTS AND HOLDING

Beginning in 1996, The Cincinnati Enquirer ("Enquirer") commenced an investigation to examine and report on Chiquita Brands International, Inc. ("Chiquita"), an international company with its headquarters in Cincinnati, Ohio, and its business activities.(fn21) Enquirer assigned reporters Michael Gallagher ("Gallagher") and Cameron McWhirter ("McWhirter") to complete a series of articles about Chiquita, which were ultimately known as the Chiquita Story ("Chiquita Story").(fn22)

In an effort to find information for the anticipated Chiquita Story, Enquirer placed an inquiry on the Internet, soliciting individuals who were willing to provide information about Chiquita.(fn23) George G. Ventura ("Ventura"), the former Senior Legal Counsel for Chiquita in Ecuador, responded to the inquiry by contacting Enquirer and offering inside information about Chiquita.(fn24) In early 1996, Ventura left his employment with Chiquita, alleging discrimination and constructive discharge.(fn25) After his departure, Ventura demanded Chiquita pay him $1.5 million to prevent future litigation against the company and disclosure to the press of the company's unfavorable treatment of minority employees.(fn26) Ventura supported his allegations with written transcripts of private voice mail messages obtained from the Chiquita telephone system after he had left the company.(fn27)

Gallagher and McWhirter promised to protect Ventura's identity as a confidential news source in return for information about Chiquita.(fn28) Enquirer understood that it was also bound by its employees' commitment of confidentiality.(fn29) In exchange for Enquirer's promise, Ventura agreed to supply Enquirer with a variety of documents and other materials for the Chiquita Story.(fn30) After the agreement, Ventura gave McWhirter codes to gain access to various voice mailboxes at Chiquita.(fn31) McWhirter declined to use the codes, but turned them over to Gallagher.(fn32) Gallagher, in turn, used the codes to gain access to voice mail and used the acquired information in the Chiquita Story.(fn33) Unbeknownst to Ventura, Gallagher and McWhirter taped many of their telephone conversations with Ventura and lied when Ventura questioned if they were recording him.(fn34)

On May 3, 1998, Enquirer printed the first segment of the Chiquita Story, which contained excerpts from the voice mail messages.(fn35) After publication of the article, Chiquita told Enquirer about Gallagher's alleged unauthorized entries into its voice mail system and threatened to file a civil suit against the Enquirer.(fn36) Approximately three weeks later, on May 22, 1998, the Hamilton County Court of Common Pleas designated a special prosecutor to inquire into possible illegal activity surrounding the collection of information for the Chiquita Story.(fn37) In anticipation of litigation, Enquirer attempted to secure all materials used for the Chiquita Story, which included items identifying Ventura as a confidential news source.(fn38) On June 26, 1998, a grand jury issued a subpoena on the Enquirer, demanding it produce materials obtained for the Chiquita Story.(fn39) Enquirer fired Gallagher on the same day and directed Gallagher to return all Enquirer property he had in his possession, including tape recordings, notes, and files.(fn40) Enquirer publicly apologized for Gallagher's actions and paid damages in excess of $10 million to Chiquita.(fn41)

In reaction to the grand jury subpoena, Enquirer asserted the Ohio Shield Law,(fn42) which provided protection to reporters' materials disclosing confidential sources and established a screening procedure intended to withhold evidence that disclosed confidential news informants from the prosecutor and the grand jury.(fn43) Pursuant to the subpoena, Enquirer produced a Post-it note containing Ventura's telephone numbers and the initials "GV."(fn44)

Before his termination, Gallagher removed numerous audio tapes and documents identifying Ventura as a confidential news source and took these materials to his home.(fn45) Gallagher turned over these materials to his attorney.(fn46) Gallagher also received a subpoena from the grand jury, requiring him to produce all Chiquita-related materials in his possession.(fn47) Pursuant to the Ohio Shield Law, Gallagher filed a motion to quash the subpoena.(fn48) He asserted some of the materials would disclose the identity of a confidential informant.(fn49) The court ordered the documents in question to be filed but to remain confidential from public disclosure.(fn50)

In July, 1998, the grand jury subpoenaed Gallagher's personal computer, from which the prosecutor discovered incriminating e-mail messages between Gallagher and Ventura.(fn51) On September 10, 1998, pursuant to a plea agreement with prosecutors, Gallagher offered his own testimony and disclosed previously sealed materials to the grand jury.(fn52) The items released during Gallagher's testimony included tape recordings of Ventura's telephone conversations with McWhirter, in which Ventura gave Chiquita voice mail codes to McWhirter.(fn53) Accordingly, Ventura was charged in a ten count...