Senear v. Daily Journal-American ( 1982 )

Utter, J.

(concurring) — I concur with the result reached by the majority, but I disagree that the holding of this case should be based on a common law qualified privilege. It is not mere surplusage that the balancing process articulated by the majority is informed by "First Amendment values and the precedential effect which decision in any one case would be likely to have." Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 598 (1st Cir. 1980). In making such decisions courts must be aware that permitting unlimited discovery of journalistic notes will encroach upon First Amendment rights. Id.

A constitutional balance has a significant advantage in that it is not subject to legislative whim. If the Legislature were to require journalistic disclosure of all confidential sources for publications dealing with the Legislature, the majority opinion would provide no relief. Fortunately, legislatures generally have provided greater protection than is constitutionally required. See Note, Shield Laws: The Legislative Response to Journalistic Privilege, 26 Clev. St. L. Rev. 453, 456 (1977). But that generosity is no reason to mislead the Legislature as to the constitutional limits to journalistic disclosure.

While the majority and I arrive at the same result, I see no reason to hide the constitutional nature of the privilege extended. In this case, a constitutional issue is before us, and no purpose is served by deciding the case on common law grounds to avoid recognition of the constitutional interests being balanced.

This dissenting opinion was prepared by Justice Floyd V. Hicks while a member of this court. It is adopted by the undersigned Justices.

Plaintiff/petitioner contends that no privilege for a reporter to withhold information in a judicial proceeding is to be found in the First Amendment. We agree. If some kind of shield law for reporters is necessary under present day circumstances, as the majority recognizes, it must be created. It seems to us that the Legislature, consisting of some 147 members, is better able to determine the need for creating such a shield law than is this court. This is so not only because the Legislature is closer to the people of the state than is the court, but also because the Legislature is equipped to hold hearings to determine whether such a far-reaching change in the law is truly in the public interest.

Consequently, we do not join in the court's latest creative effort.

Rosellini and Dore, JJ.