Dow Jones & Co., Inc. v. Superior Court

• Citation: 364 Mass. 317,303 N.E.2d 847
• Parties: DOW JONES & COMPANY, INC. et al. v. SUPERIOR COURT et al.
• Decision Date: 20 November 1973
• Court: United States State Supreme Judicial Court of Massachusetts

Page 847

303 N.E.2d 847

364 Mass. 317

DOW JONES & COMPANY, INC. et al. v. SUPERIOR COURT et al.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Oct. 1, 1973.

Decided Nov. 20, 1973.

Raymond J. Kenney, Jr., Boston (Robert D. Sack, New York City, with him), for petitioners.

David M. Davis, Boston (Roger S. Davis, Boston, with him) for respondents.

Before TAURO, C.J., and QUIRICO, BRAUCHER, KAPLAN and WILKINS, JJ.

TAURO, Chief Justice.

This case is before us pursuant to G.L. c. 211, § 4A, as appearing in St. 1972, c. 740, § 2, for determination of a single issue of law. The petitioners here, Dow Jones & Company, Inc. (Dow Jones), and Liz Roman Gallese (Gallese), are the defendants in a tort action for libel brought in the Superior Court by one of the present respondents, William D'Annolfo (D'Annolfo). The only issue now before us is the correctness of an interlocutory order compelling discovery issued by a Superior Court judge in that tort action. The matter was heard, reserved and reported to us without decision by a single justice of this court upon the pleadings, a statement of agreed facts (together with certain documents incorporated by reference in that statement) and the transcript of the deposition of the petitioner Gallese.

The pertinent facts are briefly summarized. Gallese is a reporter for The Wall Street Journal (the Journal), a publication of Dow Jones. On October 17, 1972, the Journal published an article written by Gallese concerning the practical effects in Massachusetts towns of the so called 'anti-snob zoning law.' ¹ In connection with the principal article a shorter article, also written by Gallese, was printed in a 'box' on the bottom of the front page in the same issue. This second article focused on the possibility that the anti-snob zoning law might be used by some developers to 'blackmail' town officials by threatening to build low cost housing if approval is not given for conventional development projects. Included in this article was a brief description of a situation in the town of Stoneham in which a developer who reportedly had previously been denied permission to build luxury apartments was currently attempting to have the same site rezoned for low cost housing. An unnamed 'Stoneham official' was quoted as stating that William D'Annolfo, the developer, was a 'bad word' in Stoneham and that D'Annolfo was in fact using the law to 'blackmail' the town officials. The article closed with a paraphrased denial of those charges attributed to 'a lawyer for Mr. D'Annolfo.' ² In a subsequent edition of the Journal (December 22, 1972), a 'correction' was printed in which it was stated that the earlier report that D'Annolfo had applied for a zoning change to permit construction of luxury apartments was incorrect. D'Annolfo had in fact applied to build a nursing and covalescent home. The Journal conclude, therefore, that 'the inference of 'blackmail' was incorrect,' and stated that it regretted the error.

Early in 1973 D'Annolfo instituted the present tort action against the petitioners. On May 30 counsel for D'Annolfo, pursuant to S.J.C. Rule 3:15, 351 mass. 798 (1967), took an oral deposition of the petitioner Gallese. During the course of that deposition Gallese refused to answer several questions relating to the identify of or the precise office held by the 'Stoneham official' whom she had quoted in her article. D'Annolfo thereupon filed a motion in the Superior Court for an order compelling answers under Rule 3:15, § 8. After argument, a Superior Court judge ordered Gallese to answer all the questions which she had refused to answer during the deposition. The petitioners first moved in the Superior Court to quash the order compelling discovery, which motion was continued without action pending disposition of the present petition to this court under G.L. c. 211, § 4A.

The issue before us is the correctness of the lower court judge's order compelling the petitioner Gallese to identify the source of the allegedly defamatory statements which she quoted in a published news article.

It is not questioned that the order is authorized by the terms of Rule 3:15. ³ Nor, apparently, is there any question that at least at some stage in a libel action such as this one the trial judge may properly issue an order compelling disclosure of the source of the allegedly libellous statement. The petitioners contend, however, that such a stage has not yet been reached in this case. They argue that the free press guaranty of the First Amendment to the Constitution of the United States, while not creating an absolute privilege at least creates a partial shield behind which journalists may conceal their confidential sources even from the fact-finding procedures which are integral to the judicial process. That shield must stand, it is argued, unless and until it has been demonstrated that the information concealed by it is crucial to a particular judicial proceeding. Thus, in the present case, the petitioners would have us require postponement of the discovery order until the plaintiff below has completed discovery, has exhausted alternative means of acquiring the desired information, and has demonstrated that he can and will succeed only if the identity of the anonymous 'Stoneham official' is revealed. In short, we are asked to rule that journalists have a qualified privilege to refuse to reveal confidential information which is admittedly relevant to a court proceeding. We adhere to our prior holding that the First Amendment imports no such privilege, qualified or absolute. See Matter of Pappas, 358 Mass. 604, 266 N.E.2d 297 (1971), affd. sub nom. Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972).

The opinion of this court in the Pappas case, supra, contains a thorough analysis of the question of a newsman's privilege under the First Amendment. It is true, of course, that the Pappas case involved a grand jury proceeding, not a civil suit. It is also true that the majority of the Supreme Court in the Branzburg decision, supra, emphasized that the sole issue before them was 'the obligation of reporters to respond to grand jury subpoenas,' 408 U.S. at 682, 92 S.Ct. at 2656 (1972), and thus in reaching their decision stressed the importance of the grand jury in the criminal investigation system. The basis for the decision in the Pappas case, however, was not so restricted. While the Branzburg decision stressed the importance of the complete disclosure of all relevant information to the criminal process, the Pappas decision stressed its importance to the judicial process. Thus, the conclusion of this court in the Pappas opinion applies here as well: 'there exists no constitutional newsman's privilege, either qualified or absolute, to refuse to appear and testify before a court or grand jury. The obligation of newsmen, we think, is that of every citizen, viz. to appear when summoned, with relevant written or other material when required, and to answer relevant and reasonable inquiries.' ⁴ 358 Mass. at 612, 266 N.E.2d at 303 (1971). We adhere to both the reasoning and the conclusion of the Pappas decision.

The petitioners have cited several cases which, they contend, support their argument for at least a qualified privilege requiring reversal, or at least postponement, of the lower court judge's order compelling discovery. The two principally relied on are decisions by United States Courts of Appeals, Baker v. F & F Inv., 470 F.2d 778 (2d Cir. 1972), cert. den. 411 U.S. 966, 93 S.Ct. 2147, 36 L.Ed.2d 686 (1973), and Cervantes v. Time, Inc., 464 F.2d 986 (8th Cir. 1972), cert. den. 409 U.S. 1125, 93 S.Ct. 939, 35 L.Ed.2d 257 (1973). Each may be distinguished from the present case in several respects.

The Baker case involved an interlocutory appeal of a trial court judge's ruling on a motion to compel a journalist to disclose confidential news sources. The journalist was not a party to the case (a class action alleging recial discrimination in the sale of houses), but in magazine article written approximately ten years earlier he had reported on the activities of a pseudonymous 'block-buster' whose identity the plaintiffs then wanted to learn. The trial judge refused to order the journalist to disclose the identity of his source. In affirming that ruling, the Court of Appeals noted that the journalist was not a party to the underlying action (470 F.2d at 783 (1972)) and that the plaintiffs had failed to make any showing that the identity of the source was necessary to their case (at 784). In addition, the court was influenced by the fact that both Illinois and New York ⁵ had enacted legislation protecting journalists from forced disclosure of their sources (at 781--782). Finally, the court emphasized that a ruling on a discovery motion is discretionary and thus will be reversed only on a showing of abuse of discretion (at 781).

The case now before us is quite different from the situation in the Baker case. The deponent here is a party to the underlying action, and the information which she desires to keep confidential relates to the factual issue which is central to the plaintiff's case. The Massachusetts Legislature has not enacted a 'shield law' protecting reporters' sources. And the ruling of the lower court judge at issue on this report, unlike that in the Baker case, is an order that the petitioner Gallese must testify. If we are to be guided by the Baker decision, as the petitioners suggest, then we can reverse that order only if we find that it constituted an abuse of discretion. We find no such abuse in this case.

We intend no implication by what we have just said that, in some future case, it would be within the trial judge's 'discretion' to determine that a qualified newsman's privilege exists which permits at least some protection of a journalist's confidential sources. We have this day reaffirmed that no such privilege exists. This does not mean, however,...