Op-Ed: On Berkshire Eagle and “Reporter’s Privilege”

September 27, 2022

On September 21, 2022, The Berkshire Eagle did a story on itself entitled, “The Eagle fights Springfield diocese’s request for reporter’s notes on clergy rape in effort to protect confidential sources. Accoring to the story, “The Eagle says in court filings that doing so would break the reporter’s promise not to reveal the identity of a person who provided information about a Chicopee man’s claim in a civil lawsuit that as an altar boy in the 1960s he was repeatedly raped by clergy, including a former bishop, Christopher J. Weldon.”

RELATED: Top Left Corner #172: The Berkshire Eagle’s Larry Parnass on protection of confidential sources

Top Left Corner #173: Bill Densmore on protecting source identity

Judge in clergy rape suit says diocese can’t have information that reveals confidential Eagle sources

Headshot of a bearded middle-aged man, Rinaldo Del Gallo, III.
Attorney Rinaldo Del Gallo, III; photo via Facebook.

Traditionally, at common law when the Constitution was passed, reporters had no privilege to keep secret a confidential communication between a reporter and his source. In a 5-4 decision back in 1972, in the case of Branzburg v. Hayes, the US Supreme Court refused to recognize the use of the First Amendment as a defense for reporters summoned to testify in court. According to the majority, “It is clear that the First Amendment does not invalidate every incidental burdening of the press that may result from the enforcement of civil or criminal statutes of general applicability.”

In 1972 the Branzburg majority wrote, “A number of States have provided newsmen a statutory privilege of varying breadth, but the majority have not done so, and none has been provided by federal statute.” Writing for the dissent, Justice Douglass was completely miffed by the idea that the reporter’s privilege was not recognized under the First Amendment. In fact, Branzburg had a number of “companion” cases decided together, all involving the issue of a “reporter’s privilege” or “reporter’s immunity,” and the New York Times was a party.

While the New York Times was arguing for a reporter’s privilege, Douglass was upset that they opted to argue for a “balancing test” rather than absolute immunity. Douglass wrote, “The New York Times, whose reporting functions are at issue here, takes the amazing position that First Amendment rights are to be balanced against other needs or conveniences of government.” Douglass dismissed balance tests to see whether the reporter’s privilege should apply, opining, “My belief is that all of the ‘balancing’ was done by those who wrote the Bill of Rights. By casting the First Amendment in absolute terms, they repudiated the timid, watered-down, emasculated versions of the First Amendment which both the Government and the New York Times advance in the case.”

Justice Stewart wrote in a dissent in Branzburg (joined by Brennan, and Marshall), “The Court’s crabbed view of the First Amendment reflects a disturbing insensitivity to the critical role of an independent press in our society.” Unlike the Douglass dissent, three three judge Stewart dissent proposed a balancing test wherein the government must “(1) show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information.” It was not the rejection of a privilege as was the case with the thin five judge majority, nor the absolutism of Douglass—it was a recognition of a balancing test.

One of the “companion cases” of Branzburg was the Massachusetts 1971 case of In the Matter of Paul Pappas decided by the Massachusetts Supreme Judicial Court. In Pappas, not a single member of the Mass SJC dissented and they ruled that “there is no newsman’s privilege under the First Amendment of the Federal Constitution to refuse to appear and testify before a court or grand jury.” It is worthy of note that the source of my cases indicate that Pappas has a positive history, was approved by the United States Supreme Court, and that it has not been reversed yet by a Massachusetts opinion.

Back in 2000, the Massachusetts SJC stated in a case called In the Matter of a Grand Jury Subpoena, regarding a proposed parent-child privilege, “We have recognized very few common-law privileges,” favorably citing the then 30 years old Pappas decision refusing to recognize a non-statutory reporter’s privilege predicated on the First Amendment. The court unanimously rejected the creation of a new reporter’s privilege stating that this was a better task for the legislature. “The expansion of existing testimonial privileges and acceptance of new ones involves a balancing of public policies which should be left to the legislature.” While many statutes have been enacted creating testimonial privileges in other matters, Massachusetts has yet to create a statute for reporters. As recently as 2019, the Massachusetts Federal District Court wrote, “Massachusetts does not recognize any formal reporter’s privilege.”

Nonetheless, to the Berkshire Eagle’s credit, the 2022 Massachusetts Guide to Evidence does seem to recognize a reporter’s privilege, kind of, sort of, by a balancing test and a product of recent common law (and not by statute or constitutional exegesis). In a somewhat confused statement, the Mass SJC wrote in 1988, “It is well settled that, in supervising discovery, a presiding judge is obliged to consider the effect that compelled discovery would have on the values protected by the First Amendment, even though these values were entitled to no constitutional privilege.”

In the 1991 case of In the Matter of a John Doe Grand Jury Investigation, when evaluating a reporter’s privilege through some type of modern common law development, “The first inquiry is whether the unwilling witness has made some showing that the asserted damage to the free flow of information is more than speculative or theoretical.” Once it is determined that the damage to the free flow of information is more than speculative but a bona fide real concern, the court said there was a “balancing test.” It has been said by the SJC in the 1985 non-binding case of Petition for the Promulgation of Rules, that under Massachusetts common law, “a judge has the authority to prevent harassing or the needless disclosure of confidential relationships.” But protections of “needless” disclosures of a reporter’s confidential sources is a bit of a thin protection, for in most cases the information being sought is of great importance, cannot be obtained elsewhere and is not meant to harass. Perhaps the inquiry of the reporter cannot be “unreasonably broad, unnecessary, irrelevant, or needlessly burdensome,” but that test too is seldom failed.

In Petition for the Promulgation of Rules, the Mass SJC ruled, using recent common law principles (and also not an interpretation of the state or federal constitution or a statute), “This court has also noted that the method of case-by-case adjudication involves a balancing between the public interest in every person’s evidence and the public interest in protecting the free flow of information.” Perhaps that is enough for the Berkshire Eagle to hand their hat on, but how much weight is to be put on “every person’s evidence” and how much on “the public interest in protecting the free flow of information”? Like all balancing test, there is room enough for the judges to do whatever they want, for this is a completely subjective evaluation of what matters more between two competing interest.

Balancing test are often criticized as giving judges too much discretion and providing too little guidelines to avoid litigation in the first place. For instance, in the 1986 Georgia case of Bobo v. State, the Supreme Court of Georgia qualified the psychiatrist privilege with a “balancing test” when considering the constitutional right to face one’s accuser. In a dissent, Justice Weltner wrote, “The majority opinion removes the absolute protection of privileges, which our law has recognized for many decades, and casts them upon the doubtful scales of another ‘balancing’ test.”

It is my opinion that Justice Douglass was right, and that a reporter’s privilege should be absolute and not subject to a “balancing test,” save for instances when the publisher is engaged in alleged wrongdoing such as by defaming someone or perpetrating a crime or other tort. Moreover, I believe the Massachusetts legislature should promulgate a statute creating such a reporter’s privilege to provide much needed clarity and heightened protection of the free flow of information.

Rinaldo Del Gallo, III
The  Law Office of Attorney Del Gallo
PO Box 1082
Pittsfield, MA 01202-1082
(413) 445-6789

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