Contempt of Wright, Matter of

Decision Date29 April 1985
Docket NumberNo. 15091,15091
Citation700 P.2d 40,108 Idaho 418
Parties, 11 Media L. Rep. 1937 . STATE of Idaho, Plaintiff-Respondent, v. Gary KISS, Defendant-Respondent. Supreme Court of Idaho
CourtIdaho Supreme Court

Charles A. Brown, Lewiston, for appellant.

Jim Jones, Atty. Gen., Lynn E. Thomas, Sol. Gen., Boise, and Richard George Whitehead, Lewiston, for plaintiff-respondent.

HUNTLEY, Justice.

By this appeal we are asked to determine whether there exists under the United States or the Idaho Constitution a newsperson's qualified privilege to refuse to disclose confidential sources. We hold there is such a qualified privilege under the First Amendment to the United States Constitution and Art. I, § 9 of the Idaho Constitution. We reverse and remand to the trial court for further proceedings consistent with this opinion.

This case arose when Jim Wright, reporter for the Moscow, Idaho, Daily Idahonian, refused to disclose the name of a confidential source he had interviewed in the course of writing an article about marijuana growing. The criminal defendant, Gary Kiss, had been charged with felony manufacture and possession of a controlled substance based solely on the word of Lewis, one of Kiss' co-defendants. The State wanted Wright to corroborate Lewis' testimony against Kiss so that the State could meet its evidentiary burden under I.C. § 19-2117, which provides:

19-2117. Testimony of accomplice--Corroboration.--

A conviction cannot be had on the testimony of an accomplice, unless he is corroborated by other evidence, which in itself, and without the aid of the testimony of the accomplice, tends to connect the defendant with the commission of the offense; and the corroboration is not sufficient, if it merely shows the commission of the offense, or the circumstances thereof.

The district court held a hearing to receive testimony from Wright as to whether he would disclose his source. He refused, stating that he had written the article to uncover the inadequacies and falsity of police reporting in marijuana raids. He also said he had promised his source confidentiality, and that he believed he would not have gotten the information had he not promised the grower confidentiality.

The district court found no absolute or qualified privilege to excuse Wright from testifying. It found Wright in contempt, and fined him $500 a day, that fine being stayed pending this appeal.

Wright appealed, contending that compulsion of his disclosure of a confidential source without appropriate hearing to evaluate his claim of privilege was in violation of the First Amendment, and of his due process rights under the Fourteenth Amendment of the U.S. Constitution. Rather than an absolute privilege, Wright seeks a privilege qualified by application, in a separate hearing, of a balancing test. The test would encompass consideration of (1) the relevancy of the information compelled; (2) whether the information is critical to the State's claim, and (3) whether there are alternative sources for the information sought to be compelled. This Court accepted the appeal for plenary review.

BACKGROUND

Reporters maintain that successful investigative reporting requires the ability to maintain confidential sources. That belief has been incorporated in the American Newspaper Guild's Code of Ethics: "Newspapermen shall refuse to reveal confidences or disclose sources of confidential information in court or before judicial or investigative bodies." See, P. Marcus, The Reporter's Privilege: an Analysis of the Common Law, Branzburg v. Hayes and Recent Statutory Developments, 25 Arizona L.R. 815 (1983). Without confidential sources, reporters argue, many informants, sensitive to threats of exposure, would be silenced. Not only newspeople, but the public as well would suffer the resulting loss of information.

This Court, and many others, have acknowledged reporters' concerns, and more importantly, public interest in the need for effective investigative reporting. In Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983), we noted our basic agreement with this statement from Zerilli v. Smith, 656 F.2d 705, 711 (D.C.Cir.1981) Without an unfettered press, citizens would be far less able to make informed political, social, and economic choices.... [T]he press' function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired. Compelling a reporter to disclose the identity of a source may significantly interfere with his news gathering ability; journalists frequently depend on informants to gather news, and confidentiality is often essential to establishing a relationship with an informant. (Footnotes omitted.)

Compelling a reporter to disclose the identity of a confidential source clearly raises First Amendment considerations. The First Amendment guarantees a free press in large part because of the important role it can play as "a vital source of public information." Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 449, 80 L.Ed. 660 (1936).

In his dissenting opinion in Caldero v. Tribune Publishing Co., 98 Idaho 288, 562 P.2d 791 (1977), cert. denied, 434 U.S. 930, 98 S.Ct. 418, 54 L.Ed.2d 291 (1977), Chief Justice Donaldson asserted that every case involving an infringement of First Amendment rights raises the question of whether there is a compelling interest justifying the infringement. A First Amendment case necessarily involves the balancing between the competing interests of maintaining a strong First Amendment and the interest asserted as justifying the impairment of First Amendment freedoms. The balance, he stated, is weighted in favor of the First Amendment--the competing interest must be "compelling" or "paramount". Caldero, supra at 298, 562 P.2d 791.

In Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the United States Supreme Court, in a plurality opinion, held that a journalist has no absolute privilege under the First Amendment to refuse to disclose confidential sources to a grand jury conducting a criminal investigation. The Court recognized, however, that news gathering does have some First Amendment protection, and that in certain circumstances, such as in a bad faith investigation or official harassment, a newsperson would have a qualified privilege even before a grand jury. Justice Powell, casting the deciding vote for the majority, wrote a concurring opinion which recognized that courts may determine whether a privilege exists by applying a balancing test:

The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions. Branzburg, supra, 408 U.S. at 710, 92 S.Ct. at 2671.

Justice Powell emphasized the limited nature of the majority holding, id. at 725, 92 S.Ct. at 2671; in fact, the majority specifically limited its holding to the issue of "the obligation of reporters to respond to grand jury subpoenas as other citizens do and to answer questions relevant to an investigation into the commission of crime." Id. at 682, 92 S.Ct. at 2657.

The District of Columbia Circuit took the opportunity in U.S. v. Liddy, 478 F.2d 586 (1972), shortly after the Branzburg decision, to analyze Justice Powell's opinion. Judge Leventhal stated:

.... I begin with the premise that the Branzburg decision is controlled in the last analysis by the concurring opinion of Justice Powell (408 U.S. at 709, 92 S.Ct. at 2670) as the fifth Justice of the majority. That opinion holds, as I understand it, that there is no universal constitutional privilege of a newsman to keep confidential the identity of his sources and the content of their revelations. The assertion of that privilege may, however, come to involve a question under the First Amendment freedom of the press, and in such case there will be need for balancing that assertion against the need for the material in the interest of society, as in a case where a newsman has "reason to believe that his testimony implicates confidential source relationships without a legitimate need of law enforcement." (p. 710, 92 S.Ct. at 2671). That does not require a demonstration of either total lack of legitimacy or utter lack of any possible need, for it may be raised on a claim that the information desired of the newsman has only a "remote" relationship to the subject of the investigation. As to the conduct of the balancing test, Justice Powell made it clear that the judge is "free to balance the competing interests on their merits in the particular case." Id. at 586-7.

The now widely accepted view of Branzburg appears to be that it was limited by the specific facts presented by the consolidated cases, and that a case-by-case analysis must be used in "balancing freedom of the press against a compelling and overriding public interest in the information sought." Zelenka v. State, 83 Wis.2d 601, 266 N.W.2d 279, 287 (1978). See also, Riley v. City of Chester, 612 F.2d 708, 714 (3rd Cir.1979); Farr v. Pitchess, 522 F.2d 464, 467 (9th Cir.1975) cert. denied, 427 U.S. 912, 96 S.Ct. 3200, 49 L.Ed.2d 1203 (1976); State v. Siel, 122 N.H. 254, 444 A.2d 499, 502 (1982); State v. Sandstrom, 224 Kan. 573, 581 P.2d 812, 814-15 (1978) cert. denied, 440 U.S. 929, 99 S.Ct. 1265, 59 L.Ed.2d 485 (1979); Gadsden County Times, Inc. v. Horne, 426 So.2d 1234 (Fla.App. 1 Dist.1983); Marcus, supra, at 838; Comment, The Newsman's Privilege After Branzburg, The Case for a Federal Shield Law, 24 UCLA 160, 172-74 (1976).

Courts finding a qualified privilege generally have applied a balancing test similar to one proposed by Justice Stewart in his Branzburg dissent. See, e.g. United States v....

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