Downing v. Monitor Pub. Co. Inc.

Decision Date22 May 1980
Docket NumberNo. 79-364,79-364
Citation120 N.H. 383,415 A.2d 683
Parties, 19 A.L.R.4th 913, 6 Media L. Rep. 1193 Clayton W. DOWNING v. MONITOR PUBLISHING COMPANY INC.
CourtNew Hampshire Supreme Court

Brown & Nixon, Manchester (Frank E. Kenison, Manchester, orally), for plaintiff.

Orr & Reno, Concord (William L. Chapman, Concord, orally), for defendant.

GRIMES, Chief Justice.

The issue in this libel case is whether the defendant should be required to disclose the source of its information. We hold that it should.

The plaintiff was a public official at the time of the alleged libel. The plaintiff, then chief of police, claimed to have sustained a gunshot wound on April 3, 1975 while checking on a residence in Boscawen. An investigation ensued during which the defendant published several articles about the incident, suggesting that the plaintiff had not told the truth about the incident.

On April 12, 1975, the defendant published an article that contained the following statement:

Boscawen Police Chief Clayton W. Downing failed substantive portions of a lie detector test on his account of how he was shot April 3, the Monitor learned yesterday.

Downing failed a test Monday given at State Police Headquarters under the direction of the Attorney General's Office, a source close to the investigation said.

Four polygraph experts reviewed and agreed on the results, the source said.

State Police Polygraph tests are accurate more than 95 per cent of the time. . . ."

The plaintiff brought an action of libel based on the above publication. By way of discovery, he propounded interrogatories to the defendant dated March 8, 1976, one of which asked for the "name, address and title" of each person who provided information supporting the statement in the article that plaintiff had "failed . . . a lie detector test." The defendant responded that its employees John Reid, Rod Paul and Tom Gerber had provided information for the article. The defendant further stated that additional sources provided specific information but refused to disclose those sources on the grounds of privilege.

In January 1979, the plaintiff filed a motion to compel discovery in which he sought the names of the defendant's undisclosed sources. At a non-evidentiary hearing on the motion, the plaintiff represented through counsel that he could prove that the article was false with respect to his failing a polygraph test, the agreement of four experts and the 95 percent accuracy. The defendant, in turn, offered to prove that the statements were true and that it acted without actual malice. The Court (Contas, J.) heard no evidence on these issues but concluded on February 16, 1979, that the information sought was "essential to the material issue in dispute . . . (and) is not available from any source other than the press. . . ." After granting the motion, the court approved this interlocutory appeal pursuant to Supreme Court Rule 8.

Because the plaintiff is a public official, to prevail, he must prove not only that the statements were false, but also that the defendant either knew they were false or published them recklessly. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). New York Times imposes a heavy burden upon a public official suing for libel and conversely gives great protection to first amendment rights. In none of the cases born of New York Times has the United States Supreme Court suggested that there is any first amendment restriction upon the sources from which a plaintiff can obtain the evidence necessary to prove the essential elements of his libel case. Herbert v. Lando, 441 U.S. 153, 160, 99 S.Ct. 1635, 1641, 60 L.Ed.2d 115 (1979). One way to show reckless publication is to show that "there are obvious reasons to doubt the veracity of the informant or the accuracy of his reports." St. Amant v. Thompson, 390 U.S. 727, 732, 88 S.Ct. 1323, 1326, 20 L.Ed.2d 262 (1968). Another is to show that there was in fact no informant and that the publication was therefore baseless. If a defendant is unable or unwilling to name its informant, it may be inferred that there was none. If there was in fact an informant, a plaintiff would be unable to show that there "were obvious reasons to doubt" his veracity if he is unable to determine who the informant was. "(U)nless liability is to be completely foreclosed," the identity of the informer must be available to the plaintiff. Herbert v. Lando, supra, 441 U.S. at 160, 99 S.Ct. at 1641.

It is untenable to impose the heavy New York Times burden of proof upon a plaintiff and at the same time prevent him from obtaining the evidence necessary to meet that burden. We hold that there is no absolute privilege allowing the press to decline to reveal sources of information when those sources are essential to a libel plaintiff's case. See Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); In re Farber, 78 N.J. 259, 394 A.2d 330 (1978), cert. denied sub nom. New York Times v. New Jersey, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670. Even the President does not have an absolute privilege against disclosure of materials subpoenaed for a judicial proceeding. United States v. Nixon, 418 U.S. 683, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974). Our earlier ruling in Opinion of the Justices, 117 N.H. 386, 373 A.2d 642 (1977), that there is a press privilege under the New Hampshire Constitution not to disclose the source of information when the press is not a party to an action is not applicable here. That opinion expressly left open "whether libel actions would require disclosure." Id. at 389, 373 A.2d at 647. In the case at hand we do not have the governmental involvement versus the press that was at issue in Keene Publishing Corp. v. Keene District Court, 117 N.H. 959, 380 A.2d 261 (1977) or in Keene Publishing Corp. v. Cheshire County Superior Court, 119 N.H. ---, 406...

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13 cases
  • Maressa v. New Jersey Monthly
    • United States
    • New Jersey Supreme Court
    • May 6, 1982
    ...a media defendant's refusal to name its source cannot support an inference that no source existed. Cf., Downing v. Monitor Publishing Co., 120 N.H. 383, 387, 415 A.2d 683, 686 (1980) (creating a presumption to that effect in the absence of a statutory privilege). However, similar burdens ha......
  • Mortg. Specialists, Inc. v. Implode-Explode Heavy Indus., Inc.
    • United States
    • New Hampshire Supreme Court
    • May 6, 2010
    ...We also reject Mortgage Specialists' alternative argument that if Implode is considered a reporter, then Downing v. Monitor Publishing Co., Inc., 120 N.H. 383, 415 A.2d 683 (1980), is controlling and disclosure is warranted. In Downing, the issue was whether the defendant-newspaper in a lib......
  • Roche, Matter of
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • October 15, 1980
    ...to reveal his sources arises, it is impossible to tailor an alternative remedy other than to compel disclosure. See Downing v. Monitor Publishing Co., 415 A.2d 683 (N.H.1980) (defendant in libel action not required to disclose sources, but that refusal to disclose same creates a presumption......
  • Bruno & Stillman, Inc. v. Globe Newspaper Co.
    • United States
    • U.S. Court of Appeals — First Circuit
    • October 17, 1980
    ...for example, should be drawn into question and established as a jury issue before discovery is compelled. Downing v. Monitor Publishing Co., N.H., 415 A.2d 683, at 686 (1980); see 8 C. Wright & A. Miller, supra, § 2040, at 288. There may also be, even at an early stage of proceedings, stron......
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