Saturday, November 21, 2009
I. Introduction: History & Background
The New York reporters privilege, codified in Civil Rights Law § 79-h (the "Shield Law"), provides broad protection to reporters and publishers. As originally enacted, the statute only applied to materials or information given in confidence to the reporter. However, various amendments, some in response to judicial decisions, expanded the statute so that it now protects both confidential and nonconfidential information from disclosure.
The New York Shield Law is an outgrowth of the state's long history of protecting the freedom of the press and of providing "one of the most hospitable climates for the free exchange of ideas." In re Beach v. Shanley, 62 N.Y.2d 241, 255, 476 N.Y.S.2d 765,733 (1984) (Wachtler, J., concurring). According to one judge, the first New York case in which a reporter refused to reveal his sources dates back to 1735, when John Peter Zenger was prosecuted for publishing articles critical of the New York colonial governor. The case resulted in an acquittal. Id. Since that time, and particularly with the growth of the publishing industry in New York in the 19th century, the privilege has been expanded to the point that it provides "broadest possible protection" to the press.
Both Article I, § 8 of the New York State Constitution and New York Civil Rights Law § 79-h provide an absolute privilege from forced disclosure of materials obtained or received in confidence by a professional journalist or newscaster, including the identity of source. Beach, 62 N.Y.2d 241 (applying absolute privilege against disclosing a confidential source even though the disclosure of the materials to the reporter may itself have been a crime). The privilege applies in both criminal and civil contexts and to information passively received by a reporter.
As a result of a 1981 amendment to the Shield Law, the term "professional journalist" was expanded to include not only those working for traditional news media (newspapers, magazines, and broadcast media), but those working for any "professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public," as well. Civil Rights Law § 79-h (a) (6).
In 1988, the New York Court of Appeals, in O'Neill v. Oakgrove Construction, Inc., 71 N.Y.2d 521, 528 N.Y.S.2d 1 (1988), held that both the New York State Constitution and the First Amendment to the U.S. Constitution provide a qualified privilege from the forced disclosure of nonconfidential materials. This privilege may only be overcome by a clear and specific showing by the party seeking disclosure that the materials sought are: (a) highly material and relevant to the action; (b) critical or necessary to the maintenance of a party's claim or defense; and (c) not obtainable from any alternative source. In 1990, Civil Rights Law § 79-h was, in the wake of O'Neill, amended to incorporate this three-part test for nonconfidential news.
The Shield Law represents a formidable barrier to those who seek to compel the disclosure of information obtained by reporters in the course of their newsgathering activities. The O'Neill court, citing to the New York State Constitution and the State's early recognition of a constitutionally guaranteed free press, noted that this barrier is deliberately high:
The ability of the press freely to collect and edit news, unhampered by repeated demands for its resource materials, requires more protection than that afforded by the [CPLR]. The autonomy of the press would be jeopardized if resort to its resource materials by litigants seeking to utilize the newsgathering efforts of journalists for their private purposes were routinely permitted. Moreover, because journalists typically gather information about accidents, crimes, and other matters of special interest that often give rise to litigation, attempts to obtain evidence by subjecting the press to discovery as a nonparty would be widespread if not restricted. The practical burdens on time and resources, as well as the consequent diversion of journalistic effort and disruption of newsgathering activity, would be particularly inimical to the vigor of a free press.
O'Neill, 71 N.Y.2d at 526-27 (quashing subpoena seeking nonconfidential photographs) (citations omitted). New York courts thus afford the broadest possible protection to those engaged in "'the sensitive role of gathering and disseminating news of public events,'" and they do not hesitate to quash subpoenas issued to reporters in both criminal and civil actions. Id. at 529 (quoting In Re Beach v. Shanley, 62 N.Y.2d at 256).
There are limits to the protection afforded by New York's Shield Law, however, and, as discussed below, recent decisions indicate that some courts may be more willing to order reporters' materials produced in cases where a criminal defendant's Sixth Amendment rights are at stake.
Special thanks to Elisa Krall, who is a student at the New York University School of Law (class of '04) and a summer associate at Davis Wright Tremaine LLP, for her substantial and untiring assistance in researching and drafting the New York section of this compendium.
From Reporters For Freedom of the Press:
II. Authority for and source of the right
A. Shield law statute
New York Civil Rights Law § 79-h. Special provisions relating to persons employed by, or connected with, news media.
(a)Definitions. As used in this section, the following definitions shall apply:
(1) "Newspaper" shall mean a publication that is printed and distributed ordinarily not less frequently than once a week, and has done so for at least one year, and that contains news, articles of opinion (as editorials), features, advertising or other matter regarded as of current interest, has a paid circulation and has been entered in the United States post office as second-class matter.
(2) "Magazine" shall mean a publication containing news which is published and distributed periodically, and has done so for at least one year, has a paid circulation and has been entered in the United States post-office as second-class matter.
(3) "News agency" shall mean a commercial organization that collects and supplies news to subscribing newspapers, magazines, periodicals and news broadcasters.
(4) "Press association" shall mean an association of newspapers and/or magazines formed to gather and distributed news to its members.
(5) "Wire service" shall mean a news agency that sends out syndicated news copy by wire to subscribing newspapers, magazines, periodicals or news broadcasters.
(6) "Professional journalist" shall mean one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium which has as one of its regular functions the processing and researching of news intended for dissemination to the public; such person shall be someone performing said function either as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication.
(7) "Newscaster" shall mean a person who, for gain or livelihood, is engaged in analyzing, commenting on or broadcasting, news by radio or television transmission.
(8) "News" shall mean written, oral, pictorial, photographic, or electronically recorded information or communication concerning local, national or worldwide events or other matters of public concern or public interest or affecting the public welfare.
(b) Exemption of professional journalists and newscasters from contempt: Absolute protection for confidential news. Notwithstanding the provisions of any general or specific law to the contrary, no professional journalist or newscaster presently or having previously been employed or otherwise associated with any newspaper, magazine, news agency, press association, wire service, radio or television transmission station or network or other professional medium of communicating news or information to the public shall be adjudged in contempt by any court in connection with any civil or criminal proceeding, or by the legislature or other body having contempt powers, nor shall a grand jury seek to have a journalist or newscaster held in contempt by any court, legislature or other body having contempt powers for refusing or failing to disclose news obtained or received in confidence or the identity of the source of such news coming into such person's possession in the course of gathering or obtaining news for publication or to be published in a newspaper, magazine, or for broadcast by a radio or television transmission station or network or for public dissemination by any other professional medium or agency which has as one of its main functions the dissemination of news to the public, by which such person is professionally employed or otherwise associated in a news gathering capacity notwithstanding that the material or identity of a source of such material or related material gathered by a person described above performing a function described above is or is not highly relevant to a particular inquiry of government and notwithstanding that the information was not solicited by the journalist or newscaster prior to disclosure to such person.
(c) Exemption of professional journalists and newscasters from contempt: Qualified protection for nonconfidential news. Notwithstanding the provisions of any general or specific law to the contrary, no professional journalist or newscaster presently or having previously been employed or otherwise associated with any newspaper, magazine, news agency, press association, wire service, radio or television transmission station or network or other professional medium of communicating news to the public shall be adjudged in contempt by any court in connection with any civil or criminal proceeding, or by the legislature or other body having contempt powers, nor shall a grand jury seek to have a journalist or newscaster held in contempt by any court, legislature or other body having contempt powers for refusing or failing to disclose any unpublished news obtained or prepared by a journalist or newscaster in the course of gathering or obtaining news as provided in subdivision (b) of this section, or the source of any such news, where such news was not obtained or received in confidence, unless the party seeking such news has made a clear and specific showing that the news: (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. A court shall order disclosure only of such portion, or portions, of the news sought as to which the above-described showing has been made and shall support such order with clear and specific findings made after a hearing. The provisions of this subdivision shall not affect the availability, under appropriate circumstances, of sanctions under section thirty-one hundred twenty-six of the civil practice law and rules.
(d) Any information obtained in violation of the provisions of this section shall be inadmissible in any action or proceeding or hearing before any agency.
(e) No fine or imprisonment may be imposed against a person for any refusal to disclose information privileged by the provisions of this section.
(f) The privilege contained within this section shall apply to supervisory or employer third person or organization having authority over the person described in this section.
(g) Notwithstanding the provisions of this section, a person entitled to claim the exemption provided under subdivision (b) or (c) of this section waives such exemption if such person voluntarily discloses or consents to the disclosure of the specific information sought to be disclosed to any person not otherwise entitled to claim the exemptions provided by this section.
The bill (L. 1970, c. 615, § 2) containing what became Civil Rights Law § 79-h was signed into law, effective May 12, 1970, by Governor Rockefeller. Several news publishers, broadcasters and other media organizations expressed support for the bill, including the State Reporters Association, the Association of Managing Editors, the New York Society of Newspaper Editors, the American Newspaper Publishers Association, and the Magazine Publishers Association. Columbia Broadcasting System, Inc. (CBS) submitted perhaps the most detailed comments in favor of the bill, which included its amicus brief in In the Matter of Caldwell, 311 F.Supp. 358 (N.D. Ca. 1970), a California case decided in April 1970. CBS's amicus brief included affidavits from such luminaries as Walter Cronkite, Mike Wallace, and Dan Rather. At the time, several of the bill's supporters expressed the concern that the bill was not broad enough and that reporters' resource materials, in addition to the identities of confidential sources, should be protected.
While the New York Attorney General, Louis J. Lefkowitz, had no objections to the bill, the New York Civil Liberties Union opposed it, citing its concern that a blanket privilege could "lead to instances in which the reporter, if for no other reason than his own convenience, can defeat a public or private right of access to due process." Governor's Bill Jacket, L 1970, ch. 615, p. 10.
In his memorandum approving the bill, Governor Rockefeller stated:
This "Freedom of Information Bill for Newsman" will make New York State -- the Nation's principal center of news gathering and dissemination -- the only state that clearly protects the public's right to know and the First Amendment rights of all legitimate newspapermen, reporters and television and radio broadcasters."
The bill protects journalists and newscasters from charges of contempt in any proceeding brought under State law for refusing or failing to disclose information or sources of information obtained in the course of gathering news for publication.
Freedom of the press is one of the foundations upon which our form of government is based. A representative democracy, such as ours, cannot exist unless there is a free press both willing and able to keep the public informed of all the news.
The threat to a newsman of being charged with contempt and of being imprisoned for failing to disclose his information or its sources can significantly reduce his ability to gather vital information. That this real and imminent threat has been demonstrated by the statements of several prominent reporters that valuable sources of information have been cut off because of recent attempts by the Federal government to require the disclosure of information obtained by reporters in confidence.
At the present time, fifteen states have enacted legislation extending the testimonial privilege to newsmen. This measure affords a stronger safeguard of the free channels of news communication than most existing legislation, by protecting newsmen from being compelled to disclose the information they gather, as well as the identity of their informants.
Memorandum of Governor Nelson A. Rockefeller, Governor's Bill Jacket, L 1970, ch. 615, p. 91-92.
As originally enacted in 1970, the Shield Law only protected from disclosure information obtained by a professional journalist "under the cloak of confidentiality," and it only applied to professional journalists employed by traditional media outlets, such as newspapers, magazines and broadcast media. In addition, the original statute made no mention whether grand juries were included among the "other bodies" precluded from using their contempt powers against journalists. In 1975, Civil Rights Law § 79-h was, with the support of the New York Attorney General, the New York Civil Liberties Union (reversing its former position) and others, amended to make clear that the statute prohibited grand juries from seeking to hold reporters in contempt for failing to disclose information obtained in confidence.
The 1981 Amendment
In 1981, the statute was again amended in response to judicial decisions that, in the words of one of the sponsors of the bill containing the amendments, failed "to follow the letter or even the spirit of the existing law." Memorandum of Assemblyman Steven Sanders, Governor's Bill Jacket, L 1981, ch. 468, p. 1 ("Sanders Memorandum"). This was an apparent reference to the decision in People v. LeGrand, 67 A.D.2d 446, 415 N.Y.S.2d 252 (2d Dep't 1979), in which a criminal defendant succeeded in obtaining the notes of an author who was writing an investigative book on a notorious crime family to be published by a subsidiary of Harper & Row, Inc. The LeGrand court reasoned that the Shield Law did not extend to "authors," despite the fact that the writer in question previously worked for national and local broadcasters and had written, produced and directed numerous documentary films and news broadcasts. Id. at 448. See Sanders Memorandum at 2 ("But the highly absurd situation of Mr. Smith who writes news stories for the New York Times being covered while that same Mr. Smith six months later leaving the Times and beginning work on an investigative book of non-fiction intended for sale to a Harper & Row is not covered, is corrected in this bill. Thus the new bill will protect the journalistic process wherever that process is being professionally undertaken.")
The purpose of the amendment was to fill the "gaps and loopholes not perceived and not intended in the original legislation, such inadequacies that have allowed the courts to pierce the Shield Law time after time, leaving it in a state of legal impotency, with defense attorneys engaging in frequent and increasingly popular fishing expeditions for reporters' notes, and with judges becoming ever more creative in finding limitless reasons to violate the statute and ignore the intent of the Legislature in its 1970 adoption of 79-h." Sanders Memorandum at 1. This amendment to the Shield Law, however, was not without its detractors. Despite some opposition, the bill was passed and signed into law.
The 1981 amendment broadened the definitions of the terms "news" and "professional journalist" in the statute, so that all persons "professionally engaged in a journalistic capacity" could claim its protection, including freelance journalists. Sanders Memorandum at 2. Accordingly, as of 1981, the Shield Law protects traditional, mainstream journalists and media entities, as well as those working for any "other professional medium which has as one of its regular functions the processing and researching of news intended for dissemination to the public." Civil Rights Law § 79-h(a)(6), (b), (c).
The 1990 Amendment
In 1988, the New York Court of Appeals recognized a constitutional privilege, under both Article I, § 8 of the New York State Constitution and under the First Amendment, for nonconfidential information gathered by reporters. See O'Neill, 71 N.Y.2d 521 (privilege extends to nonconfidential photographs sought in a civil action). The decision in O'Neill, however, left open the question whether the qualified privilege would apply in the criminal context, and it came less than a year after the same court held that the Shield Law, as then written, did not protect from disclosure to a grand jury nonconfidential outtakes of an interview conducted of a suspect in a homicide investigation. Knight-Ridder Broadcasting, Inc. v. Greenberg, 70 N.Y.2d 151, 518 N.Y.S.2d 595 (1987). See People v. Korkala, 99 A.D.2d 161, 472 N.Y.S.2d 310 (1st Dep't 1984) (nonconfidential outtakes ordered produced for in camera inspection).
In the wake of O'Neill and Knight-Ridder, the Legislature again amended Civil Rights Law § 79-h (effective November 1, 1990) to settle conflicting interpretations of the Shield Law. The 1990 amendment extended the qualified privilege to nonconfidential information obtained by reporters in the course of newsgathering and made clear that the privilege applies in both criminal and civil proceedings. The amendment codified the three-part test enunciated in O'Neill, which provides that the qualified privilege can only be overcome by a "clear and specific" showing by the party seeking to discover a reporter's resource materials that the materials sought are: (a) highly material and relevant; (b) critical or necessary to the maintenance of a party's claim or defense; and (c) not obtainable from any alternative source.
Other changes to Civil Rights Law § 79-h included provisions requiring that an order overcoming the qualified privilege could be no broader than necessary, and the order must be supported by clear and specific findings made after a hearing. Civil Rights Law §79-h (c). In addition, subsection (g) was also added to the statute, which provides that the privilege for both confidential and nonconfidential information may be waived by voluntary disclosure to a non-journalist of the specific information sought.
While the media supported the 1990 amendments, the New York Defenders Association, Inc. opposed extending the qualified privilege to nonconfidential news on the grounds that it conflicted with criminal defendants' Sixth Amendment rights and gave the press alone the power to decide whether and when to disclose information relevant to prosecutors and criminal defendants. Governor's Bill Jacket, L 1990, ch. 33 (pages not numbered). In order to address these concerns, the Defenders Association proposed that the privilege be limited to civil proceedings only, a position advocated by state Senator Gold and others in the floor debates over the bill. New York State Senate Debates, 1990, ch. 33 at p. 1834-35, 1849-50. However, Governor Cuomo signed the bill into law on March 23, 1990, stating:
Significantly, this qualified privilege will apply in both civil and criminal cases. Indeed, the need for protection of nonconfidential information and sources is especially strong in criminal cases where journalists are all too often drawn into the criminal justice system merely because they have reported on a crime.
In applying this standard to criminal proceedings, the bill does not override the right to a fair trial guaranteed to defendants in criminal proceedings by the United States and New York State Constitution. To the contrary, the bill strikes an appropriate balance between the principle of a free press embodied in the First Amendment and a defendant's right to a fair trial.
Memorandum of Governor Mario Cuomo filed with Assembly Bill No. 3226-B, Governor's Bill Jacket, 1990 ch. 33.
From Brian D'Agostino, PH.D
November 19, 2009
Dear President Obama,
I taught in New York City colleges and public high schools for fifteen years, have published peer reviewed research, and hold a Ph.D. in political science from Columbia University. I voted for you and had high hopes for your education policies, especially when I learned that Linda Darling-Hammond was one of your advisors. She is an educator and knows what she is talking about. I’m sorry you didn’t listen to her, because your administration is now on a collision course with public school teachers and administrators across the country.
There is no more glaring indication of your problem with educators than Arne Duncan’s attack on the staff of so-called failing schools. First, it is not as easy as you may think to identify academic failure. For example, based on standardized test scores, which give a very incomplete and distorted picture of academic performance, New York City schools Chancellor Joel Klein has sought to close certain schools that the parents want to keep open. Secondly, even if all agree that a school is failing, it is not always clear that closing the school is the best solution, as education professor Pedro Noguera (pictured below) has noted.
Third, even if closing a school is the right decision, it is not reasonable and just to fire the entire staff. Mr. President, if soldiers have fought a battle against all odds and lose the battle, do you discharge them from the military when they return? If fire fighters plunge into a burning building to save lives and stop the fire, do you dismiss them from their jobs if they don’t succeed? If a doctor treats a person who is in critical condition and the person dies, do you drum the doctor out of the medical profession? I don’t imagine you would answer “yes” to any of these questions. In that case, please tell your Education Secretary to stop attacking teachers who find themselves in failing schools.
President Obama, you and Mr. Duncan are not educators and apparently do not grasp how demoralizing and counterproductive your “Race to the Top” policies will be for students, teachers, and administrators. Using standardized tests as the primary method of assessing academic performance creates powerful incentives for “teaching to the test.” Instead of getting students excited about academic work and responding to their individual learning needs, teachers will be pressured to focus on test preparation, which can only produce mindless conformity and a life-long aversion to study.
These predictable outcomes are precisely the opposite of what the country needs from public education. One authoritative 2007 report, Tough Choices or Tough Times, calls for schools that can teach creativity and “out of the box” thinking in order to meet the competitive economic challenges of the 21st century. By contrast, you are now pushing states down the path of standardized test driven instruction and teacher evaluation, which will turn our schools into soul-less factories for producing standardized minds. This will imperil not only economic competitiveness but the critical thinking skills needed to preserve freedom and democracy from the threat of authoritarian rule.
It didn’t have to be this way. Instead of micromanaging how the states spend federal education money, you could have mandated instead that schools themselves develop and implement their own innovation plans. Besides need, there should be only two requirements for a school to receive federal education money. First, require each school to identify its core values, produce a mission statement addressing the aims of education in the twenty-first century, and produce an innovation plan addressing how the school will work to achieve its aims. Second, require every school to demonstrate that their mission statement and innovation plan were generated through an open dialogue and collaboration involving all their immediate stakeholders including parents, students, teachers, administrators, and community leaders.
A bottom-up approach such as this would tap the energies, intelligence and creativity of our schools’ stakeholders and give them ownership of the process, which is essential for reform to succeed. Some schools would produce a vision of reform that matches yours. But instead of imposing it on the schools, you would be empowering the stakeholders to create and enact their own visions. Other schools may take different approaches, and we should all welcome such diversity.
Here is my approach to school innovation. My core values include competence, creativity, individual responsibility, and teamwork. I would like to see a system of teacher evaluation that includes video portfolios, peer observation, and feedback from students. My school should be committed to science, the arts, and social studies, not only to math and literacy. It should offer nutrition, physical fitness, and other programs of proven effectiveness for building heath and achieving optimal brain function. And finally, my school should eliminate unproductive bureaucracy, supervision, and paperwork to help pay for all of the above.
Mr. President, it is not too late to listen to the teachers and other stakeholders in our nation’s schools. I respectfully urge you to do so.
Brian D’Agostino, Ph.D
New York, NY