Atlanta Journal-Constitution v. Jewell

• Decision Date: 10 October 2001
• Docket Number: No. A01A1564-A01A1566.
• Citation: 251 Ga. App. 808,555 S.E.2d 175
• Parties: ATLANTA JOURNAL-CONSTITUTION et al. v. JEWELL (Two Cases). Jewell v. Cox Enterprises, Inc. et al.
• Court: Georgia Court of Appeals

555 S.E.2d 175

251 Ga. App. 808

ATLANTA JOURNAL-CONSTITUTION et al. v. JEWELL (Two Cases).

Jewell v. Cox Enterprises, Inc. et al.

Nos. A01A1564-A01A1566.

Court of Appeals of Georgia.

October 10, 2001.

Certiorari Denied February 11, 2002.

Dow, Lohnes & Albertson, Peter C. Canfield, Sean R. Smith, Thomas M. Clyde, James A. Demetry, Atlanta, for appellants.

L. Lin Wood, Jr., Atlanta, G. Watson Bryant, Jr., David B. Hornsby, Jonesboro, Mahaley C. Paulk, for appellee.

Hull, Towill, Norman, Barrett & Salley, David E. Hudson, Augusta, amicus curiae. JOHNSON, Presiding Judge.

These cases arise from coverage by the Atlanta Journal-Constitution of the 1996 bombing in Centennial Olympic Park and Richard Jewell's involvement in that incident. The initial media coverage of the Olympic Park bombing portrayed Jewell as a hero for his role in discovering the bomb, alerting authorities, and evacuating bystanders from the immediate vicinity, no doubt saving lives. Subsequently, however, the Federal Bureau of Investigation (FBI) focused its investigation on Jewell. The resulting media coverage of the criminal investigation caused Jewell and his family considerable anguish, while converting Jewell's status from hero to suspect. The investigation ultimately cleared Jewell of any involvement in the bombing. And through subsequent media coverage of the investigation, his role in these events has once again been depicted as the positive role it was originally believed to be.

In Case No. A01A1564, the Atlanta Journal-Constitution seeks review of a June 1999 trial court order holding two of its reporters in contempt and ordering them incarcerated indefinitely for failing to disclose the identities of confidential news sources who provided information regarding Jewell's status in the Olympic Park bombing investigation.¹ In Case No. A01A1565, Jewell seeks review² of an October 1999 trial court order finding him to be a limited-purpose public figure for purposes of his defamation action. In Case No. A01A1566, the Atlanta Journal-Constitution seeks review of the trial court's refusal to grant its motion for judgment on the pleadings and its motion for summary judgment.

Case No. A01A1564

Throughout this case, the Atlanta Journal-Constitution has consistently refused to provide Jewell with the names of confidential sources who allegedly provided its reporters with information concerning Jewell's status in the investigation of the Olympic Park bombing. On February 26, 1998, Jewell filed a motion to compel discovery, specifically requesting the names of the Atlanta Journal-Constitution's confidential sources. The trial court granted Jewell's motion to compel, finding that no reporter's privilege exists in Georgia for a reporter in a libel case, where the reporter is also a party to the case. Subsequently, counsel for the Atlanta Journal-Constitution instructed a deponent not to answer questions regarding the confidential informants. On May 8, 1998, the Atlanta Journal-Constitution filed a motion seeking a protective order precluding discovery of the reporters' confidential sources. The trial court denied this motion.

Jewell filed a motion for sanctions, asking that the newspaper and its reporters be held in contempt of court based upon their knowing, willful, conscious, deliberate, and public refusal to obey the trial court's order requiring them to reveal their confidential sources. On December 15, 1998, and again on March 16, 1999, the trial court ordered the Atlanta Journal-Constitution to reveal information about its confidential sources. The Atlanta Journal-Constitution and its reporters refused to comply with the trial court's orders. As a result of their "willful and continued disobedience," the trial court held the Atlanta Journal-Constitution and the two reporters in civil contempt on June 3, 1999, and ordered the incarceration of the two reporters until such time as they disclosed their confidential sources as required by the trial court's discovery orders. This appeal followed. As to that portion of the appeal regarding defendant Kathy Scruggs, the matter is now moot. As to the remaining defendants, for the reasons discussed below, we vacate the orders requiring disclosure of the reporters' confidential sources, as well as the contempt order, and remand the case to the trial court with direction that it revisit the issue in a manner consistent with this opinion.

1. In every case where a person is charged with contempt of court for alleged violations of a court's order, the legal correctness of the underlying order may be challenged on appeal. However, "if the [trial] court has jurisdiction to make the order, it must be obeyed however wrong it may be"³ until the order is superseded or vacated.⁴ The thrust of the appeal in this case is a challenge to the correctness of the discovery orders compelling the defendants to disclose their confidential sources. Our determination that these underlying orders are erroneous and must be vacated also has the effect of dissolving the civil contempt order which is based upon the violation of these discovery orders.

During discovery Jewell sought the disclosure of certain confidential sources that the Atlanta Journal-Constitution and its reporters relied upon in publishing allegedly defamatory statements. The Atlanta Journal-Constitution argues that these communications are privileged and protected by the First Amendment and by statute. Thus, the first issue raised in this appeal is whether the Atlanta Journal-Constitution and its reporters have a privilege against revealing the identification of confidential informants in a case where they are parties. This does not present a new or novel question of law, as it is well settled in the jurisprudence of the United States Supreme Court, and the Georgia appellate courts. It has been expressly addressed by an Act of the Georgia Legislature as well. The Atlanta Journal-Constitution and its reporters have no such privilege.

The United States Supreme Court has declined to recognize or create a testimonial privilege for journalists under the First Amendment to the United States Constitution:

Until now the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination. We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do.⁵

The Atlanta Journal-Constitution claims that such a privilege is necessary to maintain a free press, but this argument has been considered and rejected by the United States Supreme Court, where Justice White, in his assessment of such an argument, wrote for the Court:

We are admonished that refusal to provide a First Amendment reporter's privilege will undermine the freedom of the press to collect and disseminate news. But this is not the lesson history teaches us. As noted previously, the common law recognized no such privilege, and the constitutional argument was not even asserted until 1958. From the beginning of our country the press has operated without constitutional protection for press informants, and the press has flourished. The existing constitutional rules have not been a serious obstacle to either the development or retention of confidential news sources by the press.⁶

Georgia's appellate courts have likewise found that the state constitutional right to a free press does not protect a reporter from disclosing the identity of a confidential source.⁷ Aside from the constitutional issues, both the Supreme Court of Georgia and this Court have consistently held that under Georgia law, there is no common law privilege protecting a reporter's decision to refuse to disclose his or her confidential sources.⁸

As for any statutory privilege, OCGA § 24-9-30 speaks directly to the issue. This statute establishes a qualified privilege for persons engaged in the gathering and dissemination of news. It provides that a reporter does not have to reveal his or her sources unless the privilege has been waived or it is shown that the information sought is material and relevant, cannot be reasonably obtained by other means, and is necessary to the proper presentation or preparation of the case of a party seeking the information, documents, or items.⁹

The trial court correctly concluded, however, that the Atlanta Journal-Constitution and its reporters cannot rely on the qualified privilege established in OCGA § 24-9-30 because the language of the statute specifically provides that this qualified privilege applies only "where the one asserting the privilege is not a party." The qualified privilege simply is not available to one asserting the privilege who is a party to the lawsuit.¹⁰ Since the Atlanta Journal-Constitution and its reporters are named defendants in this action, they cannot rely upon the qualified privilege afforded by OCGA § 24-9-30. In deciding this issue, the trial court properly declined to apply the three-part balancing test set out in the statute. However, as discussed below, other provisions of Georgia law require the trial court to balance the interests of the parties in virtually the same manner as the statute would require if it applied here.

2. Although the Atlanta Journal-Constitution and its reporters may not rely upon any privilege in refusing to reveal the identities of confidential informants in a case where they are parties, the trial court's inquiry does not end there. For although there is no federal or state constitutional privilege, legislative act, or common law which protects against the disclosure of confidential sources, there is a strong public policy in favor of allowing journalists to shield the identity of their confidential sources unless disclosure is necessary in order to meet other important purposes of the law. This public policy is not only...