On certification to the Superior Court, Law Division.
For reversal and remandment -- Chief Justice Wilentz and Justices Pashman, Clifford, Handler, Pollock and O'Hern. For affirmance -- Justice Schreiber. The opinion of the Court was delivered by Pashman, J. Schreiber, J., dissenting.
Twice in recent years, this Court has mediated between a newsperson's right not to disclose confidential information and a criminal defendant's right to compel the production of witnesses in his or her favor. State v. Boiardo, 82 N.J. 446 (1980); In re Farber, 78 N.J. 259 (1978). We have held that the New Jersey Shield Law, N.J.S.A. 2A:84A-21, protects confidential information gathered by news media "to the greatest extent permitted by the Constitution of the United States and that of the State of New Jersey." Farber, 78 N.J. at 270. Because criminal defendants have a constitutional right to obtain evidence necessary to their defense, U.S.Const., Amend. 6; N.J.Const. (1947), Art. I, par. 10, including confidential information, we held in those criminal cases that the newsperson's privilege is not absolute.
Today, for the first time since the landmark libel case of New York Times v. Sullivan, 376 U.S. 254, 84 S. Ct. 710, 11 L. Ed. 2d 686 (1964), this Court must decide whether the Shield Law allows newspersons who are sued for libel to refuse to disclose their sources and editorial processes leading to publication of the alleged libel. As in the earlier criminal cases, we must decide
here whether a countervailing constitutional right limits the Shield Law. In the present suit, which seeks monetary damages for alleged injury to reputation, we find no such right. We therefore hold that the newsperson's privilege in a civil action for libel is absolute. Since defendants have not waived their privilege, the trial court's order compelling answers to plaintiff's discovery requests must be reversed.
The October 1979 issue of New Jersey Monthly magazine contains an article entitled "Rating the Legislature" that evaluates the performance of New Jersey legislators. The article discusses several categories of representatives -- including "The Best," "The Worst" and "The Drones." Plaintiff, Senator Joseph Maressa, appeared under "The Worst" category. He was described as a "floundering and ineffectual" man whose short-comings went unnoticed by scores of extremists who, "appealing to Maressa's considerable ego, managed to enlist him as their advocate this term." Describing Maressa as "callous, stupid, and just plain devious," the article's authors listed several incidents upon which they based the senator's low rating. The article claimed that during a Senate debate of the death penalty, Maressa whined and attempted to cut off debate; that he smuggled an anti-gay lobbyist onto the Senate floor and then lied to the sergeant-at-arms that the lobbyist was his aide; that he was called before the Legislative Ethics Committee; and that he was "shot down" by the Supreme Court Advisory Committee. The article concluded, "Maressa's problem is not so much that he is evil as that he is sneaky, self-interested, and basically unprincipled."
Maressa filed a libel action in the Superior Court, Law Division, on December 12, 1979 against the magazine's owner, publisher, editor-in-chief, an editor and the three reporters who wrote the article. He alleged that the article falsely conveyed
to the public that he was unfit to serve the people of New Jersey, and that he had participated in dishonest, illegal and unethical practices. Maressa further alleged that defendants had published the defamatory falsehoods without making reasonable inquiries as to their accuracy, thereby defaming him in reckless disregard of the truth.*fn1
This interlocutory appeal arose during pretrial discovery proceedings. On February 11, 1980 plaintiff served interrogatories upon defendants, and on April 8, 1980 plaintiff took the depositions of the three reporter defendants. Maressa sought a broad range of information including names and addresses of all sources interviewed, copies of all rough drafts, notes, questions and memos pertaining to the article, and a summary of what each source told the reporters. Defendants refused to provide any information about their sources or editorial processes. They answered each interrogatory with the word "privileged."
Plaintiff sought an order from the Law Division compelling more specific answers to the interrogatories and deposition questions. On June 27, 1980 the trial court ruled that the responses sought by plaintiff were not privileged; alternatively, the court found that any newsperson's privilege had been waived. Maressa then served upon defendants a supplemental set of interrogatories containing the unanswered questions. After defendants again claimed the newsperson's privilege, the trial court on October 15, 1980 directed them to provide more specific answers within 20 days or face judicial sanctions.
The Appellate Division granted defendants leave to appeal the order compelling disclosure. Before that court heard the appeal, we directly certified the matter on our own motion. R. 2:12-1. We now reverse.
The newsperson's privilege in New Jersey dates from a 1933 statute,*fn2 L. 1933, c. 167; N.J.S.A. 2:97-11. Like other evidentiary privileges, it limits the common law right to compel testimony in judicial proceedings. The Legislature enacts such privileges "because in the particular area concerned, they are regarded as serving a more important public interest than the need for full disclosure." State v. Briley, 53 N.J. 498, 506 (1969).
Unlike most other privileges, however, a newsperson's privilege has a constitutional foundation. While narrowly upholding a grand jury's right to subpoena reporters, the United States Supreme Court has unanimously recognized that a reporter's gathering of information receives some First Amendment protection. See Branzburg v. Hayes, 408 U.S. 665, 691, 92 S. Ct. 2646, 2661, 33 L. Ed. 2d 626 (1972) (opinion of White, J., joined by Burger, C.J., and Blackmun, Rehnquist, JJ.); id. at 709, 92 S. Ct. at 2670 (Powell, J., concurring); id. at 712, 92 S. Ct. at 2686 (Douglas, J., dissenting); id. at 725, 92 S. Ct. at 2694 (Stewart, J., dissenting, joined by Brennan and Marshall, JJ.).
Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S. Ct. 2814, 65 L. Ed. 2d 973 (1980), which recognized a First Amendment right to attend criminal trials, reinforced the newsperson's right to gather information:
whether we describe this right . . . as a 'right of access' . . . or a 'right to gather information,' . . . we have recognized that 'without some protection for seeking out the news, freedom of the press could be eviscerated.' [448 U.S. at 576, 100 S. Ct. at 2827 (quoting Branzburg v. Hayes, 408 U.S. at 681, 92 S. Ct. at 2656; additional citations and footnote omitted).]
Lower federal courts have read Branzburg as supporting some First Amendment protection for reporters' use of confidential sources. See, e.g., Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 594-95 (1st Cir. 1980); Gulliver's Periodicals,
Ltd. v. Chas. Levy Circulating Co., 455 F. Supp. 1197, 1202 (N.D.Ill.1978); see also Lindberg, Source Protection in Libel Suits, 81 Colum.L.Rev. 338 (1981).
Federal constitutional protection of news gathering, however, gives newspersons only a qualified privilege not to reveal sources and other confidential information. In Branzburg v. Hayes, supra, the Court upheld grand jury subpoenas of newspaper reporters in three state courts. And in Herbert v. Lando, 441 U.S. 153, 99 S. Ct. 1635, 60 L. Ed. 2d 115 (1979), the Court held that the First Amendment does not preclude a plaintiff's inquiries into the editorial processes leading to publication of an allegedly defamatory television program.
To buttress the constitutional protection for news gathering, the Legislature has amended the Shield Law, N.J.S.A. 2A:84A-21, twice in recent years. Both enactments were in large part responses to judicial construction limiting the effect of the statute.
The bill that ultimately led to the 1977 Shield Law amendments, L. 1977, c. 253, was introduced shortly after the Appellate Division upheld incarceration of a newspaper reporter for his refusal to testify in In re Bridge, 120 N.J. Super. 460 (1972),*fn3 cert. den. 410 U.S. 991, 93 S. Ct. 1500, 36 L. Ed. 2d 189 (1973). There the court found that by disclosing the name of his source and some information received from the source, the reporter had waived his statutory privilege under the waiver provisions of Evid. R. 37, N.J.S.A. 2A:84A-29.*fn4
At the time Bridge was decided, the statute granting the newsperson's privilege provided as follows:
Subject to Rule 37, 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.
L. 1960, c. 52, p. 458, § 21, eff. July 1, 1960. [footnote omitted.]
The Legislature responded to the finding of waiver in In re Bridge by creating separate privileges such that disclosure of information provided by a confidential source did not require the newsperson to identify the source. Beyond addressing the waiver issue, however, the Legislature thoroughly revamped the newsperson's privilege to make it more comprehensive. The Legislature revised the privilege to read:
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. . . .
L. 1977, c. 253, § 1, eff. Oct. 5, 1977; N.J.S.A. 2A:84A-21.
These amendments left no doubt that the Legislature intended to provide comprehensive protection for all aspects of news gathering and dissemination. The Court recognized this intent in In re Farber, holding:
We read the legislative intent in adopting this statute in its present form as seeking to protect the confidential sources of the press as well as information so
obtained by reporters and other news media representatives to the greatest extent permitted by the Constitution of the United States and that of the State of New Jersey. [78 N.J. at 270 (emphasis added).]
Disclosure of confidential information was ordered in Farber only because the newsperson's privilege conflicted with a criminal defendant's constitutional right to compel the attendance of witnesses and production of evidence in his favor.*fn5
Following our decision in Farber, the Legislature again amended the Shield Law to grant newspersons increased protection in accord with constitutional limits. The new amendments established stringent prerequisites for judicial enforcement of a subpoena issued on behalf of a criminal defendant.*fn6 Applying the newly amended Shield Law in State v. Boiardo, supra, the Court vacated an order in a murder trial compelling a reporter to produce for in camera inspection a letter written by a prospective government witness. We found that the defendant had not met the statutory requirement of demonstrating the lack of less intrusive sources of the information contained in the letter. Moreover, we reaffirmed our holding in Farber "that the privilege created by N.J.S.A. 2A:84A-21, was intended by the Legislature to be as broad as possible." 82 N.J. at 457 (emphasis added).
Twice in recent sessions, the Legislature has made evident its intent to preserve a far-reaching newsperson's privilege in this State. And twice in recent terms, this Court has construed the Shield Law to protect confidential information to the extent allowed by the United States and New Jersey Constitutions. Absent any countervailing constitutional right, the newsperson's statutory privilege not to disclose confidential information is absolute.
Plaintiff contends that this absolute privilege does not apply to certain news gathering activities that may be characterized as "editorial processes." These would include communications between newspersons, decisions about which leads to pursue and what information to publish, and the development of a newsperson's belief in the veracity of what he or she pursues and publishes. A reporter's basis for believing in the veracity of what is published has particular importance in an action for defamation by a public figure because, under New York Times Co. v. Sullivan, supra, a public figure must prove "actual malice" -- wilful or reckless disregard of the truth -- to recover damages. According to plaintiff, because the Shield Law's enumeration of protected activities does not precisely specify "editorial processes," they are beyond the protection of the statute.
Plaintiff's argument is simplistic. It would deny comprehensive effect to the Shield Law merely because the Legislature did not include those specific words in its exhaustive list of news-gathering activities. It is clear that the Legislature did not intend such a narrow interpretation. The Legislature plainly expressed its intent that all significant news-gathering activities be protected. The Shield Law protects against disclosure of 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." N.J.S.A. 2A:84A-21(a) (emphasis added). It also separately protects "any news or information obtained in the course of pursuing . . . professional activities whether or not it is disseminated." N.J.S.A. 2A:84A-21(b). This litany of protected activities was clearly intended to afford complete and pervasive security against disclosure.
Discovery of editorial processes is especially threatening to newspersons because it inhibits the exchange of ideas that is crucial to the functioning of a free and vigorous press. In his dissent in Herbert v. Lando, supra, Justice Brennan noted the concerns that had impelled the Court of Appeals, 568 F.2d 974,
(2nd Cir.) to find an absolute privilege not to disclose editorial processes as a matter of First Amendment right:
"[i]deas expressed in conversations, memoranda, handwritten notes and the like, if discoverable, would in the future 'likely' lead to a more muted, less vigorous and creative give-and-take in the editorial room." Chief Judge Kaufman stated that "[a] reporter or editor, aware that his thoughts might have to be justified in a court of law, would often be discouraged and dissuaded from the creative verbal testing, probing, and discussion of hypotheses and alternatives which are the sine qua non of responsible journalism." [441 U.S. at 193, 99 S. Ct. at 1657, 60 L. Ed. 2d at 144, quoting Herbert v. Lando, 568 F.2d at 993-94 (Oakes, J., concurring); id. at 980 (Kaufman, C.J.)]
Although the United States Supreme Court reversed the Court of Appeals' decision, nothing in Herbert v. Lando militates against our interpreting the Shield Law to include the editorial process. The Court there simply held that the First Amendment does not grant a privilege to withhold editorial processes. There was no Shield Law at issue in the case. Moreover, the Court in Branzburg v. Hayes, 408 U.S. at 706, 92 S. Ct. at 2669, recognized that its holding does not "bar state courts from responding in their own way and construing their own Constitutions so as to recognize a newsman's privilege, either qualified or absolute." (Emphasis added).
We need not determine whether the state constitution grants an absolute evidentiary privilege to newspersons not to disclose editorial processes, for it is clear that the state courts are equally free to enforce a privilege enacted by statute. As we stated in Boiardo, supra, "Absent . . . any clear impingement on Sixth Amendment [or other constitutional] rights, the Court's task is simply to determine the legislative intent and to construe the statute accordingly." 82 N.J. at 457. ...