In Re Farber (State v. Jascalevich)
78 N.J. 259, 394 A.2d 330, cert. denied, 439 U.S. 997 (1978)
 

MOUNTAIN, J. In these consolidated appeals The New York Times Company and Myron Farber, a reporter employed by the newspaper, challenge judgments entered against them in two related matters--one a proceeding in aid of a litigant (civil contempt), the other for criminal contempt of court. The proceedings were instituted in an ongoing murder trial now in its seventh month, as a result of the appellants' failure to comply with two subpoenas duces tecum, directing them to produce certain documents and materials compiled by one or both of these appellants in the course of Farber's investigative reporting of certain allegedly criminal activities. Farber's investigations and reporting are said to have contributed largely to the indictment and prosecution of Dr. Mario E. Jascalevich for murder. Appellants moved unsuccessfully before Judge William J. Arnold, the trial judge in State v. Jascalevich, to quash the two subpoenas; an order was entered directing that the subpoenaed material be produced for in camera inspection by the court....

Impelled by appellants' persistent refusal to produce the subpoenaed materials for in camera inspection, Judge Arnold issued an order returnable before Judge Theodore W. Trautwein, directing appellants to show cause why they should not be deemed in contempt of court....

Judge Trautwein determined that both appellants had wilfully contemned Judge Arnold's order directing that materials be produced for in camera inspection and found them guilty as charged. A fine of $100,000 was imposed on The New York Times and Farber was ordered to serve six months in the Bergen County jail and to pay a fine of $1,000. Additionally, in order to compel production of the materials subpoenaed on behalf of Jascalevich, a fine of $5,000 per day for every day that elapsed until compliance with Judge Arnold's order was imposed upon The Times; Farber was fined $1,000 and sentenced to confinement in the county jail until he complied with the order....

I. THE FIRST AMENDMENT

Appellants claim a privilege to refrain from revealing information sought by the subpoenas duces tecum essentially for the reason that were they to divulge this material, confidential sources of such information would be made public. Were this to occur, they argue, newsgathering and the dissemination of news would be seriously impaired, because much information would never be forthcoming to the news media unless the persons who were the sources of such information could be entirely certain that their identities would remain secret. The final result, appellants claim, would be a substantial lessening in the supply of available news on a variety of important and sensitive issues, all to the detriment of the public interest. They contend further that this privilege to remain silent with respect to confidential information and the sources of such information emanates from the "free speech" and "free press" clauses of the First Amendment.

In our view the Supreme Court of the United States has clearly rejected this claim and has squarely held that no such First Amendment right exists. In Branzburg v. Hayes, 408 U.S. 665 (1972), three news media representatives argued that, for the same reason here advanced, they should not be required to appear and testify before grand juries, and that this privilege to refrain from divulging information, asserted to have been received from confidential sources, derived from the First Amendment. Justice White, noting that there was no common law privilege, stated the issue and gave the Court's answer in the first paragraph of his opinion:

"The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it does not." Branzburg v. Hayes, supra, 408 U.S. at 667 (1972).

In that case one reporter, from Frankfort, Kentucky, had witnessed individuals making hashish from marijuana and had made a rather comprehensive survey of the drug scene in Frankfort. He had written an article in the Louisville Courier-Journal describing this illegal activity. Another, a newsman-photographer employed by a New Bedford, Massachusetts television station, had met with members of the Black Panther movement at the time that certain riots and disorders occurred in New Bedford. The material he assembled formed the basis for a television program that followed. The third investigative reporter had met with members of the Black Panthers in northern California and had written an article about the nature and activities of the movement. In each instance there had been a commitment on the part of the media representative that he would not divulge the source of his article or story.

By a vote of 5 to 4 the Supreme Court held that newspaper reporters or other media representatives have no privilege deriving from the First Amendment to refrain from divulging confidential information and the sources of such information when properly subpoenaed to appear before a grand jury. The three media representatives were directed to appear and testify. The holding was later underscored and applied directly to this case by Justice White in a brief opinion filed in this cause upon the occasion of his denial of a stay sought by these appellants. He said,

"There is no present authority in this Court either that newsmen are constitutionally privileged to withhold duly subpoenaed documents material to the prosecution or defense of a criminal case or that a defendant seeking the subpoena must show extraordinary circumstances before enforcement against newsmen will be had." New York Times and Farber v. Jascalevich, 439 U.S. 1317, 1322 (1978)....

[A]mong the many First Amendment protections that may be invoked by the press, there is not to be found the privilege of refusing to reveal relevant confidential information and its sources to a grand jury which is engaged in the fundamental governmental function of "[f]air and effective law enforcement aimed at providing security for the person and property of the individual...." 408 U.S. at 690. The reason this is so is that a majority of the members of the United States Supreme Court have so determined....

Thus we do no weighing or balancing of societal interests in reaching our determination that the First Amendment does not afford appellants the privilege they claim. The weighing and balancing has been done by a higher court. Our conclusion that appellants cannot derive the protection they seek from the First Amendment rests upon the fact that the ruling in Branzburg is binding upon us and we interpret it as applicable to, and clearly including, the particular issue framed here. It follows that the obligation to appear at a criminal trial on behalf of a defendant who is enforcing his Sixth Amendment rights is at least as compelling as the duty to appear before a grand jury.

II. THE SHIELD LAW(1)2

In Branzburg v. Hayes, supra, the Court dealt with a newsman's claim of privilege based solely upon the First Amendment. As we have seen, this claim of privilege failed. In Branzburg no shield law was involved. Here we have a shield law, said to be as strongly worded as any in the country.

We read the legislative intent in adopting this statute in its present form as seeking to protect the confidential sources of the press as well as information so obtained by reporters and other news media representatives to the greatest extent permitted by the Constitution of the United States and that of the State of New Jersey. It is abundantly clear that appellants come fully within the literal language of the enactment....

III. THE SIXTH AMENDMENT AND ITS NEW JERSEY COUNTERPART

Viewed on its face, considered solely as a reflection of legislative intent to bestow upon the press as broad a shield as possible to protect against forced revelation of confidential source materials, this legislation is entirely constitutional. Indeed, no one appears to have attacked its facial constitutionality.

It is, however, argued, and argued very strenuously, that if enforced under the facts of this case, the Shield Law violates the Sixth Amendment of the Federal Constitution as well as Article 1, 10 of the New Jersey Constitution.... Essentially the argument is this: The Federal and State Constitutions each provide that in all criminal prosecutions the accused shall have the right "to have compulsory process for obtaining witnesses in his favor." Dr. Jascalevich seeks to obtain evidence to use in preparing and presenting his defense in the ongoing criminal trial in which he has been accused of multiple murders. He claims to come within the favor of these constitutional provisions--which he surely does. Finally, when faced with the Shield Law, he invokes the rather elementary but entirely sound proposition that where Constitution and statute collide, the latter must yield. Subject to what is said below, we find this argument unassailable.

The compulsory process clause of the Sixth Amendment has never been elaborately explicated by the Supreme Court. Not until 1967, when it decided Washington v. Texas, 388 U.S. 14, had the clause been directly construed. Westen, Confrontation and Compulsory Process: A Unified Theory of Evidence for Criminal Cases, 91 Harv. L. Rev. 567, 586 (1978). In Washington the petitioner sought the reversal of his conviction for murder. A Texas statute at the time provided that persons charged or convicted as co-participants in the same crime could not testify for one another. One Fuller, who had already been convicted of the murder, was prevented from testifying by virtue of the statute. The record indicated that had he testified his testimony would have been favorable to petitioner. The Court reversed the conviction on the ground that petitioner's Sixth Amendment right to compulsory process had been denied. At the same time it determined that the compulsory process clause in the Sixth Amendment was binding on state courts by virtue of the due process clause of the Fourteenth Amendment. It will be seen that Washington is like the present case in a significant respect. The Texas statute and the Sixth Amendment could not both stand. The latter of course prevailed. So must it be here.

Quite recently, in United States v. Nixon, 418 U.S. 683 (1974), the Court dealt with another compulsory process issue. There the Special Prosecutor, Leon Jaworski, subpoenaed various tape recordings and documents in the possession of President Nixon. The latter claimed an executive privilege and refused to deliver the tapes. The Supreme Court conceded that indeed there was an executive privilege and that although "[n]owhere in the Constitution ... is there any explicit reference to a privilege of confidentiality, yet to the extent this interest relates to the effective discharge of a President's powers, it is constitutionally based." 418 U.S. at 711. Despite this conclusion that at least to some extent a president's executive privilege derives from the Constitution, the Court nonetheless concluded that the demands of our criminal justice system required that the privilege must yield....

It is important to note that the Supreme Court in this case compelled the production of privileged material--the privilege acknowledged to rest in part upon the Constitution--even though there was no Sixth Amendment compulsion to do so. The Sixth Amendment affords rights to an accused but not to a prosecutor. The compulsion to require the production of the privileged material derived from the necessities of our system of administering criminal justice.

Article I, 10 of the Constitution of the State of New Jersey contains, as we have seen, exactly the same language with respect to compulsory process as that found in the Sixth Amendment. There exists no authoritative explication of this constitutional provision. Indeed it has rarely been mentioned in our reported decisions. We interpret it as affording a defendant in a criminal prosecution the right to compel the attendance of witnesses and the production of documents and other material for which he may have, or may believe he has, a legitimate need in preparing or undertaking his defense. It also means that witnesses properly summoned will be required to testify and that material demanded by a properly phrased subpoena duces tecum will be forthcoming and available for appropriate examination and use.

Testimonial privileges, whether they derive from common law or from statute, which allow witnesses to withhold evidence seem to conflict with this provision. This conflict may arise in a variety of factual contexts with respect to different privileges. We confine our consideration here to the single privilege before us--that set forth in the Shield Law. We hold that Article 1, 10 of our Constitution prevails over this statute....

IV. PROCEDURAL MECHANISM

Appellants insist that they are entitled to a full hearing on the issues of relevance, materiality and overbreadth of the subpoena. We agree. The trial court recognized its obligation to conduct such a hearing, but the appellants have aborted that hearing by refusing to submit the material subpoenaed for an in camera inspection by the court to assist it in determining the motion to quash. That inspection is no more than a procedural tool, a device to be used to ascertain the relevancy and materiality of that material. Such an in camera inspection is not in itself an invasion of the statutory privilege. Rather it is a preliminary step to determine whether, and if so to what extent, the statutory privilege must yield to the defendant's constitutional rights.

Appellants' position is that there must be a full showing and definitive judicial determination of relevance, materiality, absence of less intrusive access, and need, prior to any in camera inspection. The obvious objection to such a rule, however, is that it would, in many cases, effectively stultify the judicial criminal process. It might well do so here. The defendant properly recognizes Myron Farber as a unique repository of pertinent information. But he does not know the extent of this information nor is it possible for him to specify all of it with particularity, nor to tailor his subpoena to precise materials of which he is ignorant. Well aware of this, Judge Arnold refused to give ultimate rulings with respect to relevance and other preliminary matters until he had examined the material. We think he had no other course. It is not rational to ask a judge to ponder the relevance of the unknown.

The same objection applies with equal force to the contention that the subpoena is overbroad. Appellants do not assert that the subpoena is vague and uncertain, but that the data requested may not be relevant and material. To deal effectively with this assertion it is not only appropriate but absolutely necessary for the trial court to inspect in camera the subpoenaed items so that it can make its determinations on the basis of concrete materials rather than in a vacuum....

While we agree, then, 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. Our decision in this regard is not, contrary to the suggestion in some of the briefs filed with us, mandated by the First Amendment; for in addition to ruling generally against the representatives of the press in Branzburg, the Court particularly and rather vigorously, rejected the claims there asserted that before going before the grand jury, each of the reporters, at the very least, was entitled to a preliminary hearing to establish a number of threshold issues. Branzburg v. Hayes, supra, 408 U.S. at 701-07. Rather, our insistence upon such a threshold determination springs from our obligation to give as much effect as possible, within ever-present constitutional limitations, to the very positively expressed legislative intent to protect the confidentiality and secrecy of sources from which the media derive information. To this end such a determination would seem a necessity.

PASHMAN, J., dissenting....

This case is the first major test of New Jersey's new "Shield Law." There is no reason to accord this statute an unfriendly reception in any court of this State. There should be no eagerness to narrow or circumvent it. The Shield Law is not an irritation. It is an act of the Legislature.

This law was passed in the aftermath of the Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972). In Branzburg, the Court held that the First Amendment will not always prevent forced disclosure of a reporter's confidential sources and information. More specifically, it ruled that the reporters there involved had no privilege under the First Amendment against being compelled, on pain of contempt, to reveal such confidential data to an investigating grand jury. In its view, the resulting infringement upon the reporters' investigating abilities was outweighed by the grand jury's need to have everyman's evidence.

The Court emphasized, however, that state legislatures were not powerless to alter the result reached in Branzburg. As Justice White stated:

"At the federal level, Congress has freedom to determine whether a statutory newsman's privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned and, equally important, to refashion those rules as experience from time to time may dictate. There is also merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards in light of the conditions and problems with respect to the relations between law enforcement officials and press in their own areas. It goes without saying, of course, that we are powerless to bar state courts from responding in their own way and construing their own constitutions so as to recognize a newsman's privilege, either qualified or absolute." [408 U.S. at 706, emphasis supplied].

The News Media Privilege Act was New Jersey's response to the Court's invitation. This Act reflects our Legislature's judgment that an uninhibited news media is more important to the proper functioning of our society than is the ability of either law enforcement agencies, the courts or criminal defendants to gain access to confidential news data....

A reporter's ability to obtain sensitive information depends on his reputation for keeping confidences. Once breached--that reputation is destroyed. Potential sources of information can no longer rest secure that their identities and confidences will remain free from disclosure.

Realizing that strict confidentiality is essential to the workings of a free press, our Legislature, through the News Media Privilege Act, has granted reporters an immunity from disclosure which is both absolute and comprehensive. Any person connected with any news media for the purpose of gathering or disseminating news is granted the privilege of refusing to disclose, in any legal or quasi-legal proceeding or before any investigative body, both the source of and any information acquired.

Courts are thus given no discretion to determine on a case-by-case basis whether the societal importance of a free and robust press is "outweighed" by other assertedly compelling interests. The Legislature has done the weighing and balancing and has determined that in every case the right to non-disclosure is paramount. If a reporter falls within the ambit of the statute, he has a privilege of non-disclosure.

This privilege exists not only with respect to public disclosures; it encompasses revelations to any legal or quasi-legal body, including "any court." Even forced in camera disclosures are thus prohibited.

[A concurring opinion by Chief Judge Hughes and a dissenting opinion by Judge Handler are omitted.]



What arguments may be advanced in support of a reporter's privilege? Does a reporter's privilege satisfy Wigmore's four conditions? Can such a privilege be defended on purely utilitarian grounds or on the basis of other values extrinsic to the litigation process? What data would support a reporter's privilege on either basis? Is such data obtainable? If not, is a reporter's privilege justifiable? Do the majority and dissenting opinions in the Farber case reflect fundamentally different philosophical approaches to privileges in general or only different conceptions of the impact that such a privilege would have on the judicial process?

What institutional issues do you see in the Farber case? What are the appropriate respective roles of the legislature and the judiciary in establishing privileges? Again, does this question depend upon the approach taken to the subject of privileges--the instrumentalist-utilitarian, the humanistic, or the perquisite of power?

1. 2. The term "shield law" is commonly and widely applied to statutes granting newsmen and other media representatives the privilege of declining to reveal confidential sources of information. The New Jersey shield law reads as follows:

"Subject to Rule 37, a person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated has a privilege to refuse to disclose, in any legal or quasi-legal proceeding or before any investigative body, including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative committee, or elsewhere:

"a. The source, author, means, agency or persons from or through whom any information was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated, or delivered; and

"b. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated....

"Unless a different meaning clearly appears from the context of this act, as used in this act:

"a. 'News media' means newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public.

"b. 'News' means any written, oral or pictorial information gathered, procured, transmitted, compiled, edited or disseminated by, or on behalf of any person engaged in, engaged on, connected with or employed by a news media and so procured or obtained while such required relationship is in effect.

"c. 'Newspaper' means a paper that is printed and distributed ordinarily not less frequently than once a week and that contains news, articles of opinion, editorials, features, advertising, or other matter regarded as of current interest, has a paid circulation and has been entered at a United States post office as second class matter.

"d. 'Magazine' means a publication containing news which is published and distributed periodically, has a paid circulation and has been entered at a United States post office as second class matter.

"e. 'News agency' means a commercial organization that collects and supplies news to subscribing newspapers, magazines, periodicals, and news broadcasters.

"f. 'Press association' means an association of newspapers or magazines formed to gather and distribute news to its members.

"g. 'Wire service' means a news agency that sends out syndicated news copy by wire to subscribing newspapers, magazines, periodicals or news broadcasters.

"h. 'In the course of pursuing his professional activities' means any situation, including a social gathering, in which a reporter obtains information for the purpose of disseminating it to the public, but does not include any situation in which a reporter intentionally conceals from the source the fact that he is a reporter, and does not include any situation in which a reporter is an eyewitness to, or participant in, any act involving physical violence or property damage."

N.J.S.A. 2A:84A-21 and 21a.

 


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