Matter of Contempt of Wright , 108 Idaho 418 ( 1985 )

HUNTLEY, Justice.

By this appeal we are asked to determine whether there exists under the United States or the Idaho Constitution a newsperson’s qualified privilege to refuse to disclose confidential sources. We hold there is such a qualified privilege under the First Amendment to the United States Constitution and Art. I, § 9 of the Idaho Constitution. We reverse and remand to the trial court for further proceedings consistent with this opinion.

This case arose when Jim Wright, reporter for the Moscow, Idaho, Daily Idahonian, refused to disclose the name of a confidential source he had interviewed in the course of writing an article about marijuana growing. The criminal defendant, Gary Kiss, had been charged with felony manufacture and possession of a controlled substance based solely on the word of Lewis, one of Kiss’ co-defendants. The State wanted Wright to corroborate Lewis’ testimony against Kiss so that the State could meet its evidentiary burden under I.C. § 19-2117, which provides:

19-2117. Testimony of accomplice— Corroboration.—

A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof.

The district court held a hearing to receive testimony from Wright as to whether he would disclose his source. He refused, stating that he had written the article to uncover the inadequacies and falsity of police reporting in marijuana raids. He also said he had promised his source confidentiality, and that he believed he would not have gotten the information had he not promised the grower confidentiality.

The district court found no absolute or qualified privilege to excuse Wright from testifying. It found Wright in contempt, and fined him $500 a day, that fine being stayed pending this appeal.

Wright appealed, contending that compulsion of his disclosure of a confidential source without appropriate hearing to evaluate his claim of privilege was in violation of the First Amendment, and of his due process rights under the Fourteenth Amendment of the U.S. Constitution. Rather than an absolute privilege, Wright seeks a privilege qualified by application, in a separate hearing, of a balancing test. The test would encompass consideration of (1) the relevancy of the information compelled; (2) whether the information is critical to the State’s claim, and (3) whether there are alternative sources for the information sought to be compelled. This Court accepted the appeal for plenary review.

BACKGROUND

Reporters maintain that successful investigative reporting requires the ability to maintain confidential sources. That belief has been incorporated in the American Newspaper Guild’s Code of Ethics: “Newspapermen shall refuse to reveal confidences or disclose sources of confidential information in court or before judicial or investigative bodies.” See, P. Marcus, The Reporter’s Privilege: an Analysis of the Common Law, Branzburg v. Hayes and Recent Statutory Developments, 25 Arizona L.R. 815 (1983). Without confidential sources, reporters argue, many informants, sensitive to threats of exposure, would be silenced. Not only newspeople, but the public as well would suffer the resulting loss of information.

This Court, and many others, have acknowledged reporters’ concerns, and more importantly, public interest in the need for effective investigative reporting. In Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983), we noted our basic agreement with this statement from Zerilli v. Smith, 656 F.2d 705, 711 (D.C.Cir.1981):

Without an unfettered press, citizens would be far less able to make informed political, social, and economic choices____ [T]he press’ function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired. Compelling a reporter to disclose the identity of a source may significantly interfere with his news gathering ability; journalists frequently depend on informants to gather news, and confidentiality is often essential to establishing a relationship with an informant. (Footnotes omitted.)

Compelling a reporter to disclose the identity of a confidential source clearly raises First Amendment considerations. The First Amendment guarantees a free press in large part because of the important role it can play as “a vital source of public information.” Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660 (1936).

In his dissenting opinion in Caldero v. Tribune Publishing Co., 98 Idaho 288, 562 P.2d 791 (1977), cert. denied, 434 U.S. 930, 98 S.Ct. 418, 54 L.Ed.2d 291 (1977), Chief Justice Donaldson asserted that every case involving an infringement of First Amendment rights raises the question of whether there is a compelling interest justifying the infringement. A First Amendment case necessarily involves the balancing between the competing interests of maintaining a strong First Amendment and the interest asserted as justifying the impairment of First Amendment freedoms. The balance, he stated, is weighted in favor of the First Amendment — the competing interest must be “compelling” or “paramount”. Caldero, supra at 298, 562 P.2d 791.

In Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the United States Supreme Court, in a plurality opinion, held that a journalist has no absolute privilege under the First Amendment to refuse to disclose confidential sources to a grand jury conducting a criminal investigation. The Court recognized, however, that news gathering does have some First Amendment protection, and that in certain circumstances, such as in a bad faith investigation or official harassment, a newsperson would have a qualified privilege even before a grand jury. Justice Powell, casting the deciding vote for the majority, wrote a concurring opinion which recognized that courts may determine whether a privilege exists by applying a balancing test:

The 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. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions. Branzburg, supra, 408 U.S. at 710, 92 S.Ct. at 2671.

Justice Powell emphasized the limited nature of the majority holding, id. .at 725, 92 S.Ct. at 2671; in fact, the majority specifically limited its holding to the issue of “the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime.” Id. at 682, 92 S.Ct. at 2657.

The District of Columbia Circuit took the opportunity in U.S. v. Liddy, 478 F.2d 586 (1972), shortly after the Branzburg decision, to analyze Justice Powell’s opinion. Judge Leventhal stated:

____ I begin with the premise that the Branzburg decision is controlled in the last analysis by the concurring opinion of Justice Powell (408 U.S. at 709, 92 S.Ct. at 2670) as the fifth Justice of the majority. That opinion holds, as I understand it, that there is no universal constitutional privilege of a newsman to keep confidential the identity of his sources and the content of their revelations. The assertion of that privilege may, however, come to involve a question under the First Amendment freedom of the press, and in such case there will be need for balancing that assertion against the need for the material in the interest of society, as in a case where a newsman.has “reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement.” (p. 710, 92 S.Ct. at 2671). That does not require a demonstration of either total lack of legitimacy or utter lack of any possible need, for it may be raised on a claim that the information desired of the newsman has only a “remote” relationship to the subject of the investigation. As to the conduct of the balancing test, Justice Powell made it clear that the judge is “free to balance the competing interests on their merits in the particular case.” Id. at 586-7.

The now widely accepted view of Branzburg appears to be that it was limited by the specific facts presented by the consolidated eases, and that a ease-by-case analysis must be used in “balancing freedom of the press against a compelling and overriding public interest in the information sought.” Zelenka v. State, 83 Wis.2d 601, 266 N.W.2d 279, 287 (1978). See also, Riley v. City of Chester, 612 F.2d 708, 714 (3rd Cir.1979); Farr v. Pitchess, 522 F.2d 464, 467 (9th Cir.1975) cert. denied, 427 U.S. 912, 96 S.Ct. 3200, 49 L.Ed.2d 1203 (1976); State v. Siel, 122 N.H. 254, 444 A.2d 499, 502 (1982); State v. Sandstrom, 224 Kan. 573, 581 P.2d 812, 814-15 (1978) cert. denied, 440 U.S. 929, 99 S.Ct. 1265, 59 L.Ed.2d 485 (1979); Gadsden County Times, Inc. v. Home, 426 So.2d 1234 (Fla.App. 1 Dist.1983); Marcus, supra, at 838; Comment, The Newsman’s Privilege After Branzburg, The Case for a Federal Shield Law, 24 UCLA 160, 172-74 (1976).

Courts finding a qualified privilege generally have applied a balancing test similar to one proposed by Justice Stewart in his Branzburg dissent. See, e.g. United States v. Burke, 700 F.2d 70, 77 (2nd Cir. 1983) cert. denied, — U.S. -, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983); Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir.1980) cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 238 (1981); WBALTV Div., Hearst Corp. v. State, 300 Md. 233, 477 A.2d 776, 781 (1984). That test consists of the following elements:

(1) Whether there is probable cause to believe that the newsperson has information that is clearly relevant to a specific probable violation of law;

(2) Whether the information sought cannot be obtained by alternative means less destructive of First Amendment rights;

(3) Whether there is demonstrated a compelling and overriding interest in the information. Branzburg, 408 U.S. at 744, 92 S.Ct. at 2681.

Procedural requirements for the. evaluation process vary: many courts hold an in-camera hearing with a reporter and sometimes even with a source; others establish stringent burdens of proof with requirements of specific findings in the record and opportunity for immediate appeal. See e.g., State v. Siel, supra; In re Farber, 78 N.J. 259, 394 A.2d 330 (1978) cert. denied, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978); Wisconsin ex rel. Green Bay Newspaper v. Circuit Court, 9 Med. Law Rptr. 1889 (1983). Our trial judges are well qualified to select the procedure to fit the circumstances, but specific findings should be provided in all cases to facilitate review.

IDAHO CASES

In Mark’s, supra we stated:

We view this case as presenting a unique set of circumstances — a habeas corpus proceeding in which a journalist is a witness. Because we find a compelling and legitimate governmental interest in assuring the efficacy of the writ of habeas corpus, we hold that here there is no qualified newsman’s privilege beyond the usual inquiry concerning relevance and materiality of the information sought____

... We therefore decline to establish a specific newsman’s privilege with respect to such information. (Footnotes omitted.) 105 Idaho at 568-569, 671 P.2d 473.

We did not there preclude the finding in other circumstances of a qualified privilege as the result of a case-by-case balancing process. In Sierra Life v. Magic Valley Newspapers, Inc., 101 Idaho 795, 623 P.2d 103 (1980) and Caldero, supra, the issue of a newsperson’s privilege arose in the context of a libel action. We stated in Sierra:

We recognize that the news media rely upon confidential sources in the preparation of many stories, particularly those involving government or large organizations. The ability to keep the identity of those sources confidential is not infrequently a prerequisite to obtaining information. This interest, while legitimate, is not so paramount that the legitimate discovery needs of a libel plaintiff must bow before it. But by the same token a trial court can be expected to exercise caution when it orders these sources to be revealed. As the Supreme Court of the United States has suggested, the first question to be answered is whether the identity of the sources is relevant. In Caldero, the very crux of the case was whether or not the “police expert” actually existed, and whether or not he said that which the newspaper published. Relevance was there established beyond quibble. Sierra, 101 Idaho at 801, 623 P.2d 103.

The dissenters in Caldero stated that the interest in compelling testimony could be balanced differently in a civil action than in a criminal matter. Caldero, 98 Idaho at 299, 562 P.2d 791. Commentators have pointed out that in a civil setting, courts are more reluctant to require disclosure. See, e.g., Marcus, supra at 850-51. An exception to that statement appears to occur in two situations:

(1)Where a reporter is a plaintiff making allegations of wrongdoing against defendants; see e.g. Anderson v. Nixon, 444 F.Supp. 1195 (D.C.Cir.1978).

(2) Where a newsperson, paper or publisher is the defendant in a defamation action. See Senear v. The Daily Journal-American, 97 Wash.2d 148, 641 P.2d 1180 (1982).

It might be noted that these situations could be viewed not as exceptions to a general rule of privilege, but as circumstances in which the balancing favors disclosure, since the source or information at issue may be so relevant and material as to be at the very heart of the claim. See, Garland v. Torre, 259 F.2d 545 (2d Cir.) cert. denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231 (1958). If the source or information is also not available elsewhere, and of overriding interest to the moving party, then Justice Stewart’s balancing test has been met. While Caldero has been read as refusing to find either an absolute or qualified privilege, it more properly can be seen as a case in which there was implicit balancing, with the result being that the need for the identity of a source there outweighed the First Amendment interest. To the extent that Caldero holds that under no circumstances is there a qualified news-person’s privilege in Idaho which is protected by the First Amendment of the U.S. Constitution, we decline to follow it as precedent. Since Caldero there has been an increasing recognition by federal and other state courts, as well as state legislatures which have passed “shield laws” (26 to date),¹ of the connection between freedom of the press and the public’s right to know. A careful balancing by the courts between a First Amendment privilege, and any interest asserted which may conflict with that privilege, will serve the parties and the public most appropriately.

We hold that the elements of Justice Stewart’s balancing test in Branzburg are the proper ones to be used. This test may be applied in both a criminal and a civil context; however, the weight given to each factor will vary depending on the type of case and the interest at issue. In a criminal matter where, for example, the defendant asserts a Sixth Amendment right to a fair trial to compel disclosure, the weight of such a constitutional interest may tip the balance in favor of disclosure. In a civil matter, disclosure will not be compelled absent a showing of a significant interest by the moving party supported by the balancing test elements.

A balancing test such as we adopt will not adversely affect a criminal or civil trial or even a grand jury process. Many states had adopted such a test by statute as early as 1971 with no apparent disruption of the investigative process. See Comment, The Newsman’s Privilege After Branzburg; The Case for a Federal Shield Law, 24 U.C.L.A. L.Rev. 160, 167 (1976). Moreover, we reiterate that such a balancing test does not contemplate an absolute immunity; if the material is relevant, unavailable from other sources, and of significant interest in an investigation or case, the reporter will be compelled to divulge sources and information.

Art. I, § 9 of the Idaho Constitution provides for protection of freedoms substantially similar to those of the First Amendment to the U.S. Constitution. Accordingly, for the reasons discussed above, we also ground this decision on the mandates of the Idaho Constitution.

We reverse and remand to the trial court for appropriate proceedings consistent with this opinion.

No attorney fees. Costs to appellant.

DONALDSON, C.J., and BAKES and BISTLINE, JJ., concur.

1 . The following states have Shield Laws which provide a newsperson's privilege:

Alabama Louisiana New York

Alaska Maryland North Dakota

Arizona Michigan Ohio

Arkansas Minnesota Oklahoma

California Montana Oregon

Delaware Nebraska Pennsylvania

Illinois Nevada Rhode Island

Indiana New Jersey Tennessee

Kentucky New Mexico

See, Comment, supra, 24 U.C.L.A. L.Rev. 160, 167 (1976).