439 U.S. 1331 (1978), A-111, New York Times Co. v. Jascalevich

Docket Nº:No. A-111
Citation:439 U.S. 1331, 99 S.Ct. 11, 58 L.Ed.2d 38
Party Name:New York Times Co. v. Jascalevich
Case Date:August 04, 1978
Court:United States Supreme Court

Page 1331

439 U.S. 1331 (1978)

99 S.Ct. 11, 58 L.Ed.2d 38

New York Times Co.



No. A-111

United States Supreme Court

August 4, 1978



Reapplication for stay of New Jersey Supreme Court's order declining to stay civil contempt penalties imposed by the New Jersey Superior Court, pending the filing of a petition for certiorari, is denied. The imposition of contempt penalties in order to coerce applicants, a newspaper and one of its reporters, to submit for in camera inspection materials sought by the defendant in an ongoing murder trial, without first making an independent, threshold determination of materiality, relevance, and necessity, likely inhibits the exercise of First Amendment rights and raises a substantial constitutional question. However, it does not appear that four Justices of this Court would vote to grant certiorari at this time.

MARSHALL, J., lead opinion

[99 S.Ct. 12] MR. JUSTICE MARSHALL, Circuit Justice.

The New York Times and one of its reporters, Myron Farber, have reapplied to me for a stay of an order issued by the Supreme Court of New Jersey on July 25, 1978, after MR. JUSTICE WHITE denied their initial application on August 1, 1978. Ante p. 1317.

At issue is the New Jersey Supreme Court's denial of a motion for a stay of civil contempt penalties imposed by the Superior [99 S.Ct. 13] Court of Bergen County in order to coerce the applicants to submit for in camera inspection materials sought by the defendant in a murder trial now in progress. The New Jersey Supreme Court also denied the applicants' motion for direct certification of their appeals from the contempt orders entered by the Superior Court.

The applicants have requested a stay pending the filing and determination of their petition for certiorari, which would raise the issue

whether the First and Fourteenth Amendments to the Constitution of the United States permit a State to incarcerate and fine a newsperson or newspaper to force them

Page 1332

to disclose to a court, in camera, all materials, including confidential sources and unpublished information, called for by a subpoena duces tecum, prior to making determinations with respect to the facial invalidity of the subpoenas as well as claims of First Amendment and statutory shield law privileges, when such issues are raised in a motion to quash the subpoena duces tecum.

Alternatively, they seek a stay pending review of those issues by the New Jersey appellate courts. This application was denied by MR. JUSTICE WHITE, and then referred to me. Although a single Justice would ordinarily refer a reapplication for a stay to the full Conference of this Court, as we are now in recess and widely scattered, such a referral is not immediately practicable.


A preliminary question is whether a Justice of this Court has jurisdiction to grant a stay under the circumstances of this case. Under 28 U.S.C. § 2101(f), the execution and enforcement of a judgment or decree may be stayed by a Member of this Court in "any case in which the final judgment or decree of any court is subject to review by the Supreme Court on writ of certiorari." The application of that provision, in turn, depends upon 28 U.S.C. § 1257, which provides that this Court has jurisdiction to review "[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had."

The proceedings relevant here began with an order of the Superior Court on June 30, 1978, denying the applicants' motion to quash the subpoena and directing them to produce the subpoenaed materials. The Superior Court declined to consider any constitutional or statutory claims of privilege until the applicants submitted the materials for in camera review. The applicants sought review of the Superior Court's order before the Appellate Division and the New Jersey Supreme Court, on the grounds they intend to raise in their

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petition for certiorari. Both courts denied leave to appeal and declined to stay the order to produce. With the case in that posture, both MR. JUSTICE WHITE and I denied the applicants' request for a stay.

Since the initial application for a stay, a different judge of the Superior Court, on July 24, found the applicants guilty of both criminal and civil contempt for refusing to comply with the June 30 order to produce the subpoenaed materials. Without considering the issues that I previously had expected would be addressed in a contempt proceeding, see ante at 1305-1306, the Superior Court held that the applicants could not raise their constitutional or statutory challenges to the validity of the June 30 order to produce. As a coercive sanction for the civil contempt, the court sentenced Farber to jail and fined the New York Times $5,000 per day until the applicants complied with the order to produce. On the criminal contempt charges, Farber received a sentence of six months in jail and the New York Times was assessed a fine of $100,000.

The applicants appealed both the...

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