"News Media Privilege" by Lawerence J. Mullen
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Abstract

In late 1977 and early 1978, the Boston Globe published a series of articles about a Delaware corporation engaged in building fiberglass boats in New Hampshire. The articles reported a number of allegedly serious defects in the boats, some of which may have contributed to sinkings. Critical comments of boat owners, surveyors, Coast Guard officers, company employees and a repairman were included. The builder was given an opportunity to respond in part of one article. Provoked by this quotidien instance of investigative journalism, the boat builder brought a libel action against the Globe in federal district court. The boat builder's action, Bruno & Stillman, Inc. v. Globe Newspaper Co., reached the First Circuit on an interlocutory appeal. It is easy to imagine that the climate of doubt created by the articles could and probably did have an impact upon the corporation's boat sales. The boat builder chose the judicial forum to seek a vindication of the corporate reputation. In recent years the news media have frequently found themselves in an adversary relationship with defamation plaintiffs, as in Bruno & Stillman, and with other civil litigants, criminal defendants, the state and the courts. While some antagonism is undoubtedly healthy for the maintenance of an independent press, what has particularly provoked controversy in the last decade has been whether the Constitution requires protection for news gathering activities. The news media and many legal scholars maintain that such protection is a constitutional mandate. One aspect of this protection includes access to government information and legal proceedings. Related to its concern with access to information, the press has sought the establishment of a news media privilege against disclosure of confidential news sources and information in the face of a demand for disclosure in a legal proceeding. One unavoidable effect of this privilege would be to make some relevant and material evidence unavailable to the proceeding. The institutional American media are in the business of gathering, editing and disseminating newsworthy information. Frequently, some of this information is relevant to a criminal investigation or trial, or a civil suit. Although the press acquires this information from a wide spectrum of sources, most available to any member of the general public, controversial news leads for investigative journalism, particularly for stories involving the government, often develop from informants who demand confidentiality as a quid pro quo for their candor. The press claims that requiring the disclosure of confidential sources would have a deleterious effect upon its ability to gather and disseminate the news because the confidential sources would dry up. The constitutional issue posed is whether the press as news gatherer has a privilege to protect its relationships with confidential sources from the potential harm of intrusive and burdensome compliance with legal processes because of the disruptive impact such compliance would have upon news gathering and dissemination. This Comment will outline the legal history of the media privilege argument, examining common law, constitutional and statutory foundations. The Comment will then concentrate on recent developments of the media privilege in both criminal and civil contexts, with particular emphasis on defamation actions such as Bruno & Stillman. The present uncertain status of a news media privilege in the courts merits examination because of its discordant effect upon the national media.

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