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In re Subpoena AC Testificandum to Rene Avila

Decided: December 5, 1985.

IN RE SUBPOENA AD TESTIFICANDUM TO RENE AVILA, A JOURNALIST


On appeal from Superior Court of New Jersey, Law Division, Criminal Part, Hudson County.

Fritz, Brody and Baime. The opinion of the court was delivered by Brody, J.A.D.

Brody

[206 NJSuper Page 62] We granted the Hudson County Prosecutor leave to appeal a Law Division order declaring that Avance, a 20-page tabloid paper printed in Spanish, is a news medium thereby entitling Rene Avila, its owner and publisher, to assert the statutory

newsperson's privilege in proceedings before a Hudson County grand jury. N.J.S.A. 2A:84A-21; Evid.R. 27.

N.J.S.A. 2A:84A-21a(a) defines "news media" as

Avila contends that Avance is a news medium because it is "similar" to a "newspaper." A "newspaper" is defined by N.J.S.A. 2A:84A-21a(c) as follows:

"Newspaper" means a paper that is printed and distributed ordinarily not less frequently than once a week and that contains news, articles of opinion, editorials, features, advertising, or other matter regarded as of current interest, has a paid circulation and has been entered at a United States post office as second class matter. [Emphasis added.]

Avance is not a "newspaper" as defined by the statute because its copies are free and it is not entered as second-class matter at a United States post office. The Prosecutor contends that because Avance does not satisfy these two specific criteria of the statutory definition of a "newspaper," it cannot be considered "similar" to a "newspaper." We disagree and affirm.

In determining whether Avance is "similar" enough to a "newspaper" to qualify as a news medium, we must be sensitive to the legislative momentum that has steadily expanded the scope of the statutory newsperson's privilege since its first enactment as L. 1933, c. 167. Our Supreme Court has declared that the scope of its present protection is "the greatest extent permitted by the Constitution of the United States and that of the State of New Jersey." In re Myron Farber, 78 N.J. 259, 270 (1978), cert. den., 439 U.S. 997, 99 S. Ct. 598, 58 L. Ed. 2d 670 (1978).

Twenty-five thousand copies of Avance are published weekly and distributed free at newsstands and at other places of business in north Hudson County. Avila has been a bona fide journalist in this country since 1965, shortly after his arrival here from Cuba, and has published Avance weekly since 1973. The paper is supported entirely by its advertisers.

The requirement that a paper have a "paid" circulation reflects the Legislature's legitimate concern that to qualify for the privilege, the paper be read by those who receive it. See North Jersey Suburbanite Co., Inc. v. State, 154 N.J. Super. 126, 131-133 (App.Div.1977). Unsolicited papers left at the door are less likely to be read than papers that are paid for. Demand for a paper, however, can be measured in ways other than by its paid circulation. Here, 25,000 people deliberately pick up copies of Avance every week from places where it is distributed. These selective acts are convincing evidence that Avance is read even though its copies are free.

The United States Postal Service offers low second-class mail rates for matter that qualifies as a periodical. In a democratic society the public must have information to exercise its freedoms in a responsible manner. Favoring "news media" with the newsperson's privilege and favoring a "periodical" with low mailing rates are both designed to foster the gathering and distribution of information to the public. It is therefore not surprising that the definition of "news media" that ...


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