Civil action. On motion to strike interrogatories.
This is an action for libel in which plaintiff seeks compensatory, special and punitive damages as a result of an allegedly defamatory editorial published in the July 24, 1963 issue of defendant's newspaper, The Point Pleasant Leader. The editorial, entitled "INSIST ON RIGHT TO KNOW," allegedly accuses plaintiff of performing his duties as police chief of the Borough of Point Pleasant in an unlawful, partial and dictatorial manner, without regard to the rights of the public, contrary to law and in violation of his oath of office.
The matter is before this court on defendants' motion to strike several interrogatories propounded by plaintiff which, generally speaking, ask for the facts upon which defendants presumably based their editorial opinion and the source or sources of these facts including names, addresses and positions held.*fn1 Defendants claim that the information sought falls within the ambit of confidential communications between
newspapermen and their informants, thus conferring a privilege of nondisclosure. Defendants' other objections, based largely on the ground of irrelevancy, and plaintiff's objections to the procedural form of the motion have not been argued and, accordingly, are considered as abandoned.
At common law, newspapers had no privilege to conceal from judicial inquiry either the source of their information or the information itself. State v. Donovan , 129 N.J.L. 478 (Sup. Ct. 1943); In re Julius Grunow , 84 N.J.L. 235 (Sup. Ct. 1913). However, refusals of newspapermen to divulge their sources have occasionally been upheld without express judicial recognition of a privilege. Note, "Privilege of Newspapermen to Withhold Sources of Information from the Court," 45 Yale L.J. 357 (1935). The argument most often advanced for refusing to compel disclosure is that the public is the ultimate beneficiary of the free flow of news, and that absent the right of newspapers to fully and completely protect their sources of information, the public frequently would be deprived of knowledge concerning matters which rightfully belong in the public domain. Other reasons include the professional pride and code of ethics of newspapermen which preclude divulging the names of confidential informants, and the need for complete freedom of the press, not only in publishing news, but also in gathering it and protecting its source.
Both the privilege itself and the reasons underlying it have been the subject of frequent criticism. 8 Wigmore, Evidence
(McNaughton ed. 1961), §§ 2285-2286, pp. 527-533; Carter, "The Journalist, His Informant and Testimonial Privilege," 35 N.Y.U.L. Rev. 1111 (1960); Morgan, "Foreward," Model Code of Evidence (1942), pp. 22-30; Notes, 35 Neb. L. Rev. 562 (1954), 36 Va. L. Rev. 61 (1950), 45 Yale L.J. 357 (1935); State v. Donovan, supra; In re Julius Grunow, supra. In general, it is said that the harm caused by divulgence is more than compensated by the benefit to be derived by the correct disposal of litigation. 8 Wigmore, op. cit., pp. 527-528. Furthermore, the observation has been made that newspapers which publish in jurisdictions where no privilege of nondisclosure is available have not suffered as a consequence. Note , 45 Yale L.J. 357 (1935); In re Taylor , 412 Pa. 32, 193 A. 2 d 181 (Sup. Ct. 1963) (dissenting opinion).
However, it is unnecessary for this court to pass upon the respective merits of the arguments for and against the newspaperman's privilege, in view of the fact that the New Jersey Legislature has made the initial policy determination in recognizing the newspaperman's privilege not to divulge the source of his information. The statute in question, N.J.S. 2A:84A-21, provides:
"Subject to [ N.J.S. 2A:84A-29, relating to waiver], a person engaged on, connected with, or employed by, a newspaper has a privilege to refuse to disclose the source, author, means, agency or person from or through whom any information published in such newspaper was procured, obtained, supplied, furnished, or delivered."
In considering the scope of this legislative declaration, the above-mentioned policy considerations are useful as tools of construction, at least to the extent that the statute fails to clearly embrace a particular factual situation.
It is significant that in the vast majority of reported cases involving the newspaperman's privilege, it was invoked before grand jury or legislative bodies, or at similar investigating proceedings instituted as a result of an article or series of articles published in a newspaper. 8 Wigmore, op. cit., pp. 529-530, n. 9; Notes, 35 Neb. L. Rev. 562 (1954); 45 Yale L.J. 357
(1935). See also cases cited in Garland v. Torre , 259 F.2d 545, 550 (2 Cir. 1958), cert. denied 358 U.S. 910, 79 S. Ct. 237, 3 L. Ed. 2 d 231 (1958). Thus, in the typical case, the news reporter possesses information of the matter under investigation, yet refuses to disclose its source. The few reported decisions in this State illustrate similar situations. In re Julius Grunow , and State v. Donovan, supra.
With this background, it is entirely reasonable to conclude that our Legislature considered the benefit to the public welfare over the long run as outweighing the occasional benefit to be derived by compelling disclosure of newspaper sources as a necessary adjunct to investigating crime and corruption. This determination is not inconsistent with the rationale behind other, more widely recognized privileges which protect confidential communications such as those between lawyer and client (N.J.S. 2A:84A-20), priest and penitent (N.J.S. 2A:84A-23), and husband and wife (N.J.S. 2A:84A-22). In each of these cases our ...