CBS INC.(KMOX-TV) v. Campbell

Citations: 645 S.W.2d 30; 8 Media L. Rep. (BNA) 2529; 1982 Mo. App. LEXIS 3857Docket: 46176

Court: Missouri Court of Appeals; November 9, 1982; Missouri; State Appellate Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

On July 28, 1982, a subpoena duces tecum was issued by the St. Louis County Grand Jury to CBS (KMOX-TV, News Department) for all audio and video recordings of conversations involving Francis "Red" Markwell and Lloyd Grice, focusing on illegal gambling and video poker machines. Parts of the requested recordings were previously aired as part of KMOX-TV's news series on gambling. CBS filed a motion to quash the subpoena, citing First Amendment protections and Missouri constitutional rights, supported by affidavits from its News Director and a reporter. The trial court denied the motion, requiring CBS to present the tapes to the grand jury. CBS sought a preliminary order in prohibition, which was later quashed as improvidently granted. The investigation led by reporter Matt Meagher included a covert meeting with Markwell, during which Markwell discussed the illicit operation of video poker machines and confirmed the illegal payment practices associated with them. CBS maintained that compliance with the subpoena would compel the production of unpublished materials, infringing on its news-gathering and editorial rights.

The state contends that neither the U.S. Constitution nor the Missouri Constitution shields the plaintiff's "outtakes" from grand jury disclosure. Missouri case law has not directly addressed this issue, though the Supreme Court of Missouri, in Ex parte Holliway (1917), upheld a contempt conviction against a reporter who refused to disclose information to a grand jury, without discussing a reporter's privilege. Additionally, Missouri lacks a Reporter's Shield Law, unlike many states that offer statutory protections for journalists in grand jury contexts. The U.S. Supreme Court's decision in Branzburg v. Hayes (1972) ruled that no absolute privilege exists preventing grand jury questioning of journalists, although it acknowledged First Amendment protections against bad faith investigations. Subsequent cases have largely declined to recognize a qualified privilege for journalists in grand jury proceedings, with some exceptions focusing on confidential sources. The document emphasizes that courts are more inclined to protect journalists in civil and criminal trials than in grand jury situations, attributing this to the inherent secrecy of grand jury proceedings and their dual role in prosecuting crimes and safeguarding against unfounded accusations.

The trial court's decision to deny the motion to quash the subpoena duces tecum was upheld, recognizing the significance of a free press while clarifying that no confidential sources or information were implicated in the production of the relevant video and audio tapes for the grand jury. Markwell's communications with Meagher were made as a tavern owner, not as a reporter, with no claims of confidentiality promised by Meagher. Although Meagher's affidavit mentioned maintaining confidentiality for certain interviewees, this does not pertain to the tapes requested, which only involve Markwell and Grice. The subpoena was specifically designed to exclude "outtakes" containing confidential sources. Additionally, the plaintiff failed to demonstrate any bad faith in the grand jury's investigation or that it constituted harassment. The court confirmed that neither federal nor state constitutions prohibit the production of CBS's "outtakes" for the grand jury. The preliminary order in prohibition was consequently quashed. The ruling emphasized that the authority of the grand jury to issue subpoenas has not been challenged, and the plaintiff did not contest the specificity of the subpoena. The document also notes the constitutional protection of free speech and the responsibilities accompanying it.