Taylor, In re

• Citation: 412 Pa. 32,193 A.2d 181
• Parties: , 7 A.L.R.3d 580, 1 Media L. Rep. 2675 In the Matter of Robert L. TAYLOR and Earl Selby, Appellants.
• Decision Date: 15 July 1963
• Court: United States State Supreme Court of Pennsylvania

Page 181

193 A.2d 181

412 Pa. 32, 7 A.L.R.3d 580, 1 Media

L. Rep. 2675

In the Matter of Robert L. TAYLOR and Earl Selby, Appellants.

Supreme Court of Pennsylvania.

July 15, 1963.

John R. McConnell, Arthur Littleton, Philadelphia, Morgan, Lewis & Bockius, Philadelphia, of counsel, for appellant.

Charles H. Rogovin, Chief Asst. Dist. Atty., Arlen Specter and Stanley M. Shingles, Louis F. McCabe, Asst. Dist. Attys., and James C. Crumlish, Jr., Dist. Atty., Philadelphia, for appellee.

Arthur B. Hanson, Washington, D. C., Calvin H. Cobb, Jr., Emmett E. Tucker, Jr., R. K. Kennonn Jones, Washington, D. C., of counsel, for amici curiae, American Newspaper Publishers Ass'n Charles H. Weidner, Calvin E. Smith, Stevens & Lee, Reading, for amici curiae, Pennsylvania Newspaper Publishers' Ass'n and Pennsylvania Society of Newspaper Editors.

Before BELL, C. J., and MUSMANNO, JONES, COHEN, EAGEN, O'BRIEN and ROBERTS, JJ.

BELL, Chief Justice.

Appellants appeal from Orders adjudging each of them guilty of contempt of Court and imposing on each of them a fine of $1,000.00 and a sentence of five days imprisonment in the Philadelphia County prison.

The November 1962 Investigating Grand Jury was convened and charged to investigate alleged criminal conduct and corruption in the legislative and executive branches of the City of Philadelphia and in the Zoning Board of Adjustment and in the Department of Licenses and Inspection and conspiracy with certain members of the City Committee of the Democratic party.

In January, 1963, a subpoena duces tecum was served upon Robert L. Taylor, President of Bulletin Company and General Manager of The Bulletin, and Earl Selby, who is City Editor of The Evening and Sunday Bulletin, which are newspapers of widespread general circulation. The subpoena to appear before the Grand Jury arose out of the Grand Jury's investigation of John J. Fitzpatrick, and statements made by him concerning alleged solicitation, bribery, corruption and crime. The subpoena directed Taylor and Selby to bring with them (a) 'All tape recordings, written statements, Memoranda of interviews, conversations, conferences had with John J. Fitzpatrick'; and (b) 'All copies of statements given by John J. Fitzpatrick to the District Attorney ¹ on February 20, 1962, portions of which appeared in the Philadelphia Evening Bulletin on December 30, 1962;' and (a) 'all tape recordings of conferences, interviews, discussions, interrogations or conversations with John Fitzpatrick'; (b) 'all memorandum, notes, reports and other documents of or pertaining to conferences, interviews, discussions, interrogations or conversations with John Fitzpatrick'; (c) 'all memorandum, notes, reports and other documents of or pertaining to investigations conducted as a result of information furnished by John Fitzpatrick'; (d) 'all records of expenses incurred directly or indirectly in gathering information from, or conducting conferences, investigations, discussions, interrogations or conversations with John Fitzpatrick'; (e) 'all documents of or pertaining to the examination of John Fitzpatrick by polygraph, examiners, physicians, psychologists or other experts'; and (f) 'any and all other documents of or pertaining to John Fitzpatrick'.

The aforesaid Bulletin article dated December 30, 1962 was titled, 'Fitzpatrick's Secret Talk to DA Is Bared'. The article consisted primarily of questions put to, and answers made by John Fitzpatrick, a former Democratic ward leader and a former Sergeant at Arms of City Council, on February 20, 1962, during one of the four times he was interrogated by the District Attorney's office. The article stated, inter alia, that the District Attorney had refused to make transcripts of these interrogations public, but that The Bulletin now had access to them. Near the close of the article it was stated that the interrogations ended with the Assistant District Attorney saying he would go over the record for further questions. The article then added: 'However, much of the subsequent questioning dealt with what John Fitzpatrick had told Bulletin reporters.' This last sentence is particularly important in the consideration of one of the questions involved, as will hereinafter more fully appear.

Taylor and Selby appeared before the Grand Jury, but under advice of counsel and relying upon the Act of June 25, 1937, P.L. 2123, § 1, 28 P.S. § 330, as amended, respectfully refused to answer certain questions. Thereupon the Assistant District Attorney brought these witnesses before Judge Gold, Taylor on January 21, 1963 and Selby on January 22, 1963. On these occasions both witnesses for the above reasons again respectfully refused to answer certain questions propounded by the Assistant District Attorney and allowed by the Court, which questions in their opinion and in the opinion of their counsel were privileged and should not be disclosed. The Assistant District Attorney then moved orally that the witnesses be cited for contempt.

This case is of great importance, as is evidenced, inter alia, by the fact that the Pennsylvania Newspaper Publishers Association, the Pennsylvania Society of Newspaper Editors, the American Newspaper Publishers Association and the Pennsylvania Association of Broadcasters appeared and filed briefs as amici curiae.

Judge Kelley ² in holding appellants guilty of contempt of Court decided that the privilege established by the aforesaid Act of June 25, 1937, as amended, protects a newsman only against the compulsory disclosure of the identity of persons and does not protect him or them against the compulsory disclosure of documents or other inanimate materials. Judge Kelley further held (1) that appellants were not required to produce an alleged copy of statements made by John Fitzpatrick to the District Attorney's office on February 20, 1962 and set forth in part in The Bulletin on December 30, 1962, since, inter alia, the result might be to disclose the identity of the transmitter of the alleged copy to The Bulletin; (2) that appellants were not required to produce memoranda, notes, reports and other documents of or pertaining to investigations conducted by The Bulletin as a result of information furnished by John Fitzpatrick, since such investigations, made on leads furnished by Fitzpatrick, would doubtless encompass confidential interviews with other persons who would give information only if their identity were kept secret; (3) that appellants were not required to produce the results of alleged polygraph (lie-detector) tests given to Fitzpatrick, since, inter alia, this would reveal the identity of the experts who conducted such tests; but (4) that appellants were required to produce documents and tape recordings allegedly evidencing what John J. Fitzpatrick had told Bulletin reporters, since with respect to such materials The Bulletin had, in Judge Kelley's view of the matter, waived, the privilege created by the aforesaid Act of 1937 by publishing in The Bulletin of December 30, 1962 the single sentence quoted supra, i. e., 'However, much of the subsequent questioning dealt with what John Fitzpatrick had told Bulletin reporters'. The Court further held that appellants were required to answer certain questions concerning such materials.

The aforesaid Act of 1937, as amended, pertinently provides in § 1: 'No person, ³ engaged on, connected with, or employed by any newspaper of general circulation as defined by the laws of this Commonwealth, * * * for the purpose of gathering, procuring, compiling, editing or publishing news, shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any court, grand jury, traverse or petit jury, or any officer thereof, * * *.'

Appellants and one of the amici curiae contend that the right and privilege of nondisclosure of the source of newspaper-obtained information is encompassed within, and is protected by, the United States and the Pennsylvania Constitutional guarantee of freedom of the press.

The Constitution of the United States provides in Amendment Article I:

'Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech or of the press,3 * * *.'

The Constitution of Pennsylvania provides in Article I, § 7, P.S.:

'Section 7. The printing press shall be free to every person who may undertake to examine the proceedings of the Legislature or any branch of government, and no law shall ever by made to restrain the right thereof. The free communication of thoughts and opinions is one of the invaluable rights of man, and every citizen may freely speak, write and print on any subject, being responsible for the abuse of that liberty. * * *'

The language of each Constitution is clear, and by no stretch of language can it protect or include under 'freedom of the press,' the non-disclosure of sources of information. It is an often overlooked truism that neither freedom of the press nor freedom of speech is absolute and unlimited. Poulos v. New Hampshire, 345 U.S. 395, 73 S.Ct. 760, 94 L.Ed. 1105; Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919; Garner v. Los Angeles Board, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; American Communications Ass'n v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925; Kovacs v. Cooper, 336 U.S. 77, 69 S.Ct. 448, 93 L.Ed. 513; United Public Workers of America v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754; Whitney v. California, 274 U.S. 357, 47 S.Ct. 641, 71 L.Ed. 1095; Gitlow v. New York, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138; Gilbert v. Minnesota, 254 U.S. 325, 41 S.Ct. 125, 65 L.Ed. 287; Schenck v. United States, 249 U.S. 47, 39 S.Ct. 247, 63 L.Ed. 470; Frohwerk v. United States, 249 U.S. 204, 39 S.Ct. 249, 63 L.Ed. 561; Debs v. United States, 249 U.S....