Court: Supreme Court of New Jersey; January 28, 1989; New Jersey; State Supreme Court
The Court, led by Justice Garibaldi, ruled that a newsperson cannot be compelled to testify about a confession made to them by a criminal defendant, even if that confession has been published, under New Jersey's Shield Act (N.J.S.A. 2A:84A-21). This ruling arose from the capital case of State of New Jersey v. Gary J. Mayron, where Mayron was charged with kidnapping and murder. The State sought the testimony of reporter Evan Schuman, who had published articles detailing Mayron's confessions prior to his indictment. Schuman's articles included Mayron's admissions of guilt and descriptions of the crime, but he moved to quash the subpoena to testify, asserting that his information was obtained solely through his professional activities as a reporter. Schuman noted that he had no eyewitness knowledge of the crime and emphasized the importance of protecting reporters' privileges to maintain the flow of information. The State clarified that it only sought to use the specific statements from Mayron reported in Schuman's articles.
The State asserts it possesses independent evidence to validate the context of telephone conversations and confirm that Mr. Sehuman spoke with Gary Mayron. Consequently, the State did not seek reporter’s notes or other related interview information, focusing solely on acquiring a sworn statement to substantiate that Mayron made statements quoted in a newspaper article. This statement would be introduced as admissions and declarations against penal interest under Evid. R. 63(7) and Evid. R. 63(10). Sehuman argues that, under the New Jersey Shield Law (N.J.S.A. 2A:84A-21(b)), he retains a privilege to refuse disclosure of information obtained during his professional activities, regardless of any publication. The State counters that this privilege, being subject to Evid. R. 37 regarding waivers, allows for the possibility of waiver concerning specific disseminated information. The trial court sided with Sehuman, quashing the subpoena based on precedent indicating the statutory privilege against disclosing confidential information is absolute unless overridden by a constitutional right. The court expressed uncertainty about the confidentiality of the published information but chose to protect the newspaper's rights. The State's subsequent appeal led the Appellate Division to rule that, despite the Shield Law’s language suggesting a privilege exists even after dissemination, another section (N.J.S.A. 2A:84A-21.3(b)) indicates that publication constitutes a waiver only for the specific materials published. The court concluded that the State could subpoena a newsperson regarding disseminated information, especially when the source has been identified. The Appellate Division's ruling was subsequently appealed by Schuman.
The appeal addresses a conflict between the public's right to evidence and the right to free information flow, recognizing the significance of both principles. The New Jersey Shield Law aims to protect the confidentiality of press sources and the information they gather, as supported by constitutional provisions. The law reflects the New Jersey Legislature's intent to provide robust protections for journalists, concluding that Mr. Schuman cannot be compelled to testify against Mayron. This decision is grounded in the law's language, statutory framework, and the underlying public policies favoring press protection.
Historically, reporters lacked common law privileges to conceal sources or information, prompting calls for legislative protections. Currently, 26 states have enacted Shield Laws offering various levels of protection. New Jersey's original privilege, established in 1933, initially protected only the sources of information. Subsequent amendments expanded this privilege, particularly after court cases highlighted the need for stronger protections. For instance, in the 1970s, legislative changes were prompted by cases like Branzburg v. Hayes and In re Bridge, where reporters were compelled to testify, undermining their privileges. The Bridge case illustrated that disclosing a source’s identity could lead to a waiver of the privilege, resulting in the reporter being held in contempt. These events catalyzed the 1977 amendments to the Shield Law, reinforcing journalists' privileges and protections against compelled testimony.
The 1977 amendments to New Jersey’s Shield Law broadened the "source privilege" to include all sources of information, irrespective of dissemination, and established an "information privilege" for all information gathered during professional activities, regardless of dissemination. In 1979, the Legislature revised the Shield Law following the court's ruling in In re Farber, which determined that a criminal defendant could compel the production of exculpatory evidence even at the expense of press protections. The 1979 statute incorporated these procedural guidelines, emphasizing the need for the defendant to be the only party capable of overcoming the newsperson’s privilege. The continuous legislative actions demonstrate a commitment to providing robust protections against compulsory testimony for the press, particularly from the state. This intent is further reflected in the New Jersey Wiretap Act, which requires the state to demonstrate a "special need" to legally wiretap a journalist's phone, and in new laws that restrict state searches and seizures of materials obtained during newsgathering. The principles of statutory construction indicate that Schuman should not be compelled to testify, as the plain language of the statutes harmonizes Evid. R. 27(b) and Evid. R. 37, affirming a privilege for journalists to refuse disclosure of information obtained during professional activities, regardless of whether that information was disseminated.
Evid.R. 37 establishes that privileged disclosures are not waived, and there is no conflict between this rule and other statutes. A specific statute that contradicts a general one supersedes it. The language “whether or not it is disseminated” in Evid.R. 27(b), enacted in 1977, takes precedence over the general waiver principles of Evid.R. 37 from 1960. Avoiding interpretations that render parts of statutes meaningless is crucial, as demonstrated in Abbotts Dairies v. Armstrong and Paper Mill Playhouse v. Millburn Township. The interpretation maintains that while a newsperson's privilege can be waived through non-professional communication, it is upheld during professional activities, with the 1977 language overriding previous rules. Legislative history supports that the waiver provisions of Evid.R. 37 do not undermine Evid.R. 27(b). During public hearings on the New Jersey Shield Law, concerns were raised about potential conflicts with Evid.R. 37, leading to recommendations that would prioritize the 1977 language. The 1979 amendments, which incorporate aspects of Evid.R. 37 for criminal defendants, explicitly do not include the dissemination clause from Evid.R. 27(b). The legislature was aware of the implications of standard construction rules but limited the statutory privilege's scope to criminal defendants, confirming that the specific waiver language applies only to materials requested in those cases. The assertion that dissemination equates to waiver was not supported by the amendments.
The 1979 amendment clearly restricts its application to requests made by criminal defendants, specifically in trial contexts, and does not permit its use by the prosecution or during grand jury proceedings. The Legislature intended for Evid. R. 27(b) to take precedence over Evid. R. 37 concerning subpoenas issued by the State. The underlying public policies of New Jersey's Shield Law support protecting Schuman from being forced to testify. It is established that the party seeking to compel a newsperson's testimony must show that their need is "manifestly compelling" and must prove, by a preponderance of the evidence, that less intrusive sources are unavailable. Previous cases, such as In re Farber and State v. Boiardo, support the notion that defendants enjoy greater protections under constitutional and statutory provisions compared to prosecutors. A defendant's request for documents from a reporter was denied when equivalent information was accessible through alternative sources. In Schuman's situation, the information sought could be obtained from several less intrusive means, reinforcing the argument against compelling his testimony. Additionally, compelling Schuman to testify could deter the free flow of information from journalists, making them less likely to gather information from sources who may fear prosecution. Such fears could lead reporters to destroy valuable notes and files, ultimately diminishing the effectiveness of criminal investigations and the benefits that crime-related journalism provides to law enforcement.
Schuman's employment at the Herald, a small daily newspaper with only nine reporters, raises concerns regarding the potential negative impact on its newsgathering activities if one of its reporters is compelled to testify. The burden associated with complying with a prosecution subpoena could infringe on First Amendment rights, as it may deter journalists from engaging with sources. While it is acknowledged that demonstrating the exact harm from compelling testimony is challenging, this is consistent with the rationale behind evidentiary privileges like attorney-client and marital privileges, which are based on the potential for harm to these relationships rather than conclusive evidence.
The State contends that the risks of compelling testimony are diminished when it does not involve confidential sources or undisclosed information. However, this distinction is not deemed significant; even when known information is involved, the act of compelling testimony can chill sources' willingness to provide information. The new shield law aims to mitigate these adverse effects by limiting compelled production to necessary cases. Additionally, precedent from similar federal cases indicates that the absence of confidential information does not negate the chilling effect that enforcement of a subpoena can have on the press. This perception can lead reporters and sources to feel apprehensive, regardless of the confidentiality of the information sought. Furthermore, the burden of responding to subpoenas is substantial for newspapers, whether the information is confidential or not. Notably, Schuman's testimony is requested in a trial context, which typically presents a higher likelihood of compelling testimony compared to grand jury proceedings.
The Supreme Court's decision in Branzburg established that the First Amendment does not protect journalists from being compelled to provide information to a grand jury, emphasizing the importance of the grand jury process in criminal investigations and the protection of citizens. In contrast, the same protections do not apply in public trials, where extensive cross-examination of journalists is feasible and expected. In the case discussed, the court found that Schuman, a reporter, did not waive his evidentiary privilege under Evid. R. 27(b) by publishing articles and therefore cannot be compelled to testify. The judgment of the Appellate Division was reversed, affirming that Schuman's rights were protected under the Shield Law, based solely on the interpretation of Evid. R. 27(b), without addressing potential constitutional issues. The State had previously subpoenaed Schuman but withdrew after he moved to quash the subpoenas. The court also acknowledged the participation of the New Jersey Press Association and other media organizations as amici curiae in the case.
Jeremy Bentham's hypothetical scenario illustrates that prominent figures, such as the Prince of Wales and the Archbishop of Canterbury, cannot refuse to testify in disputes over trivial matters, such as a halfpenny's worth of apples. This principle aligns with the ruling in *Branzburg v. Hayes*, where the U.S. Supreme Court determined that no general privilege exists for a newsperson to refuse testimony unless exempted by law. The case established that partial disclosure of privileged information waives that privilege under the First Amendment. However, the court also encouraged states to provide further protections for journalists against subpoenas. The current legal framework rests on statutory grounds rather than constitutional ones, following amendments to Rule 27, which grants journalists the privilege to refuse to disclose sources or information obtained during their professional activities in various legal proceedings. The statute requires that to claim this privilege, a journalist must demonstrate engagement with a news media entity and that the materials in question were obtained in the course of their professional work. Additionally, the privilege does not apply to radio or television stations unless they maintain specific records for one year after broadcasts.
A party seeking to enforce a subpoena against a claimant who has established a prima facie showing must provide clear and convincing evidence that the claimed privilege has been waived or demonstrate by a preponderance of the evidence that the subpoenaed materials are relevant, material, and necessary for the defense. This includes proving that the information cannot be obtained from a less intrusive source, that its value concerning guilt or innocence outweighs the privilege, and that the request is not overbroad, oppressive, or unduly burdensome. The court will assess these factors only after a hearing, allowing both the party asserting the privilege and the party enforcing the subpoena to present evidence and arguments regarding the materials sought.
The case Maressa v. New Jersey Monthly illustrates that partial disclosures by a newspaper do not constitute a blanket waiver of the privilege, emphasizing that the privilege remains protected in civil matters where public interest in disclosure is less compelling. The Appellate Division's interpretation that publication of materials by Schuman constituted a waiver of privilege is challenged, arguing that it contradicts the principle that publication waives privilege only for the specific materials disclosed. The issue of confidentiality concerning the testimony sought may also be relevant, but compelling reporters to testify can hinder the free flow of information from the press to the public. The precedent set in Branzburg encourages states to develop additional protections against subpoenas for journalists, which courts have referenced in related privilege matters.
