[183 NJSuper Page 446] This controversy arose in the course of pretrial discovery. It may have interest beyond the perimeters of this lawsuit because it involves the confrontation between press freedom and the right of a defamation plaintiff to elicit information critical in
most such cases. The collision of these valued interests is occurring with increasing frequency in libel actions.
The case was instituted by Central New Jersey Jewish Home for the Aged and its Director, Elliot Solomon. They allege they were defamed in an article which appeared in the New York Times on December 16, 1979 and which had been written by Gertrude Dubrovsky, both defendants. The alleged libel involved charges of inadequate care of patients, labor strife at the Home and other improprieties practiced by the Home and Solomon. Plaintiffs charge malice and seek both compensatory and punitive damages. These defendants raise fair comment and opinion and absence of malice in their answer.
This motion resulted when hostilities broke out during the deposition of Gertrude Dubrovsky. She was asked to produce preliminary drafts of her article and, through her attorney, has refused. She was also confronted with the report of a state agency whose investigation seemed to exonerate plaintiffs with respect to at least some of the charges against them mentioned in the article. Ms. Dubrovsky apparently had knowledge of the report. She admitted that she did not consider referring to it in her article. However, when asked why she did not, her attorney directed her not to answer. Defendants' position is that these inquiries intrude into their state of mind and editorial processes, and plaintiffs have no right to such intrusions.
This motion is phrased in broad, general terms ("for an Order compelling defendants to answer all inquiries relevant to state of mind and the editorial process"), but the above two disputes are the only ones presented and my ruling is specifically limited to the propriety of those two areas of inquiry.
Defendants seem to agree that the First Amendment to the Federal Constitution does not afford them protection against the inquiries plaintiffs propose. Herbert v. Lando , 441 U.S. 153, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979), is dispositive. However, they contend that New Jersey's "Shield Law" (N.J.S.A. 2A:84A-21) and Article 1, para. 6, of the State Constitution prohibit plaintiffs
from inquiring into their editorial processes and the bases for their editorial decisions. Let us first consider the applicability of the "Shield Law":
Subject to Rule 37, a person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated has a privilege to refuse to disclose, in any legal or quasi-legal proceeding or before any investigative body, including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative committee, or elsewhere.
a. The source, author, means, agency or person from or through whom any information was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated or delivered: and
b. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated. [ N.J.S.A. 2A:84A-21]
Defendants make a close-range examination of this language. From paragraph (a) they extract the words "means" and "edited" and conclude that an author's and editor's mental processes in evaluating and selecting material are protected from compulsory disclosure; thus, protection for the editorial process. They reason further from "information . . . . whether or not it is disseminated," in paragraph (b), that the preliminary ...