Reporter’s Privilege In Doubt
By his rulings in a high-profile murder case, a Wake County judge has put the North Carolina reporter’s privilege in doubt — and a Raleigh television reporter in jail. He also has presented the NCPA with a challenge and a possible dilemma. Here’s the story, and what it means for you.
The Branzburg cases. In 1972 the United States Supreme Court, in three reporter’s subpoena cases known collectively as Branzburg v. Hayes, held that the First Amendment provides a degree of protection for newsgathering, because if the press cannot acquire information the right to publish it is meaningless. The same opinion, however, rejected the notion that representatives of the news media have complete immunity from subpoenas and ruled that reporters who witness criminal acts may be compelled to testify about them, even if they have promised not to reveal their sources. Because the reporters involved in the consolidated Branzburg cases were ordered to disclose information they considered privileged, the organized press tended to view the opinion as a “loss,” despite its affirmation that reporters’ First Amendment rights must be balanced against the “the obligation of all citizens to give relevant testimony with respect to criminal conduct.”
“Shield Laws.” When Branzburg was decided 17 states already had “shield laws” — statutes that establish privileges for reporters. Branzburg motivated a number of state press associations to lobby for such laws; now they exist in 29 states — including Georgia, South Carolina and Tennessee — and the District of Columbia. Early on, however, the NCPA decided not to seek a “shield law” from the North Carolina General Assembly. The thinking was — and is — that (1) because shield laws vary in their terms, they also vary in their effectiveness; (2) the legislature might decline to enact a shield law even if (or precisely because) the NCPA asked for it; (3) whatever the General Assembly gives it can (and probably will) take away; (4) the NCPA traditionally has declined to ask the legislature for privileges or benefits that don’t extend to all citizens; and (5) over the long run, the First Amendment is a safer harbor than any statute.
The qualified privilege in North Carolina. In North Carolina and other states without shield laws the news media looked to the Branzburg decision itself for relief. By focusing on Branzburg’s acknowledgement that the First Amendment provides some protection for newsgathering, media lawyers began persuading courts to interpret Branzburg as contemplating a qualified, or limited, reporter’s privilege. Over time, recognition of the privilege by numerous courts led to the formulation that reporters could be compelled to testify in court proceedings only if (1) they had information that is “highly relevant” or “critical,” to the proceeding and (2) the information was not available from any other source.
North Carolina journalists first asserted the Branzburg-based qualified privilege in February, 1983 when Elizabeth Leland, then a reporter for The News & Observer, was subpoaened by the defendant in a criminal case to testify about her interviews with members of the District Attorney’s staff who possibly had made statements that would have supported the defendant’s “selective prosecution” defense. Superior Court Judge Anthony Brannon, applying Branzburg and its progeny, quashed the subpoena. Three months later, Judge Hamilton Hobgood applied the qualified privilege and quashed a subpoena issued to a reporter for the Wilmington Morning Star, and in November of that year Judge Forrest Ferrell followed suit in quashing a subpoena issued to a reporter for the Lenoir News-Topic.
Following these initial successes trial courts throughout North Carolina began recognizing and applying the qualified reporter’s privilege; since 1983 the privilege has been recognized by some of the state’s most experienced judges and in some of the state’s most publicized cases, including State v. Demery, the prosecution of the two men charged with killing Michael Jordan’s father. The most important North Carolina privilege case is Miller v. Mecklenburg County, in which a federal district court judge held that the privilege could be asserted by a Charlotte Observer reporter who wished to protect a confidential source. The privilege also has been recognized and applied by other federal district judges in North Carolina, and by the U.S. Court of Appeals for Fourth Circuit.
As it happens, none of the orders issued by state trial court judges involving reporters’ subpoenas was ever appealed, so neither the North Carolina Court of Appeals nor the North Carolina Supreme Court has had occasion to pass on the existence or the application of the qualified privilege. Nevertheless, by 1996 the media’s successes led the authors of a book about the reporter’s privilege to list North Carolina as a state in which the privilege was well established. Then came State v. Boychuck.
State v. Boychuck. On New Year’s Day in 1996 Karen Boychuck, a Cary lawyer, was killed after reportedly being struck and knocked from a highway overpass by a hit-and-run driver. A few days later the woman’s husband, William Boychuck, was charged with her murder. Upon becoming aware that he was a suspect, Boychuck hired an attorney, Bryan Collins. Although Boychuck declined to talk to the press, Collins granted interviews to local newspaper and television reporters. In October the Wake County District Attorney, who was attempting to disqualify Collins from representing Boychuck and force him to testify as a witness, subpoenaed three of those reporters to testify at a pre-trial hearing: Laurie Willis of The News & Observer, Mark Andrews of The Cary News, and Sarah Owens of WNCN-TV, the local NBC station. The reporters could not fathom how they could possibly provide any information that was critical to the State’s case, or that was not readily available from other sources, and the prosecutor refused to explain what information he was seeking from them; accordingly, our law firm filed motions to quash the three subpoenas.
When the motions to quash came on for hearing before Judge Robert Farmer, the district attorney did not attempt to explain what testimony he expected the reporters to provide, much less argue that their testimony was unique or indispensable; instead, he argued that the reporter’s privilege was a fiction, that the reporters were arrogantly attempting to avoid their duty as citizens, and that reporters can be subpoeaned “just like anybody else.” Judge Farmer, a seasoned and thoughtful judge, took the matter under advisement in order to read our brief and the cases that we had cited.
The next day Judge Farmer, without explaining the basis for his decision, ruled that the reporters had no privilege and ordered them to testify. For reasons unrelated to the subpoenas, the prosecutor decided not to proceed with the hearing that day, but indicated that he would pursue the matter at a later date. Meanwhile, the reporters’ employers petitioned the North Carolina Supreme Court to review the issue and order the trial court to apply the privilege. Although the State did not oppose our petition, the supreme court denied our petition, again without explanation.
In early February the State issued new subpoenas to the three reporters, who renewed their motions to quash. A visibly annoyed Judge Farmer denied the motions and ordered the reporters to testify. The two newspaper reporters identified the stories they had written and attested to the accuracy of quotes attributed to Collins. Although they declined to answer some other questions, the prosecutor did not force the issue.
Ms. Owens, the television reporter, was not so lucky. Even though her station had given the district attorney a videotape of an interview with Mr. Collins that the station had broadcast, the prosecutor all-but-ignored it and launched into other lines of inquiry. When she refused to answer, even after being admonished by Judge Farmer, the judge angrily held her in contempt and ordered her to serve 30 days in jail. When he refused a request to stay his order, we sought a stay from the state supreme court, which was meeting for its monthly conference that same day. The request for a stay was denied. Meanwhile, the superior court hearing ended, whereupon Judge Farmer reduced Ms. Owen’s sentence to two hours and she was released.
Unfortunately, this quasi-happy ending is not an ending at all, because we expect the district attorney to subpoena the reporters again when Boychuck comes to trial.
What happens next? Judge Farmer’s rulings are both surprising and disappointing. We are aware of cases in which North Carolina judges have required reporters to testify after determining that the qualified privilege was overridden; indeed, that was the ultimate outcome in Miller v. Mecklenburg. But neither I nor any other North Carolina media lawyer can recall any instance in which a judge has simply refused to recognize the privilege. And while his rulings are not binding on any other trial judge, they undoubtedly will embolden prosecutors and other attorneys seeking to enforce subpoenas directed to the news media.
Ultimately, only two solutions are possible, and neither is simple: either the appellate courts of this state must be persuaded to recognize the privilege, or the General Assembly must be persuaded to enact a shield law. The former would require a case in the right posture, a careful presentation of the arguments, and a receptive appellate court. The latter would require both an arduous lobbying effort and a departure from the NCPA’s traditional relationship with the legislature. Either would require solid support from the North Carolina news media, print and broadcast.
An appeal of Ms. Owen’s contempt conviction might provide the legal vehicle to present the privilege issue to the state supreme court. As of this writing, NBC is considering that option. Meanwhile, the privilege hangs in the balance, and its future is likely to remain unsettled for quite a while.
Stay tuned.