Farber, Matter of

Decision Date27 November 1978
Citation394 A.2d 330,78 N.J. 259
Parties, 99 A.L.R.3d 1, 4 Media L. Rep. 1360 In the Matter of Myron FARBER and the New York Times Company, Charged with Contempt of Court, Defendants-Appellants. STATE of New Jersey, Plaintiff, v. Mario E. JASCALEVICH, Defendant.
CourtNew Jersey Supreme Court

Floyd Abrams of the New York Bar, New York City, for appellants Myron Farber and The New York Times Co. (Winne, Banta, Rizzi & Harrington, Hackensack, attorneys; Peter G. Banta, Donald A. Klein, Hackensack, and Cahill, Gordon & Reindel of the New York Bar, New York City, of counsel; Raymond L. Falls, Jr., Eugene R. Scheiman, Kenneth M. Vittor and Faith Wender, members of the New York Bar, New York City, on the brief).

Dan P. S. Paul, Miami, Fla., of the Florida Bar for amici curiae The Miami Herald Pub. Co., The Washington Post Co., National Broadcasting Co., Inc., Times Mirror Co., The Philadelphia Inquirer, Scripps-Howard Newspapers, United Press International, Inc., Associated Press, Gannett Co., Inc., Newhouse News Service, Educational Broadcasting Corp., The Chicago Sun Times, The Courier-Journal and Louisville Times Co., Dow Jones & Co., Inc., The American Society of Newspaper Editors, Radio Television News Directors Ass'n, The National Ass'n of Broadcasters, The Reporters Committee for Freedom of the Press, National Newspaper Ass'n, The Florida Times Union and Jacksonville Journal, The Daily Sentinel, Star-Ledger, The Jersey Journal, CBS, Inc., American Broadcasting Companies, Inc., The Anniston Star, The New Jersey Press Ass'n, Trenton Times, Minneapolis Star and Tribune Co., The Bergen Evening Record Corp., The Des Moines Register and Tribune Co., Newsweek, The Newspaper Guild and The Newspaper Guild of New York, Local 3 (Mazer, Lesemann & Rupp, Hackensack, attorneys; Paul & Thomson of the Florida Bar, Miami, Fla., of counsel; Arthur J. Lesemann, Hackensack, on the brief).

John J. Degnan, Atty. Gen., for appellant pro se (John J. Degnan, attorney; John J. Degnan and Deputy Attys. Gen. John De Cicco, Edwin H. Stern, Anthony J. Parrillo and Ileana Saros, of counsel and on the brief).

Raymond A. Brown, Jersey City, for respondent Mario E. Jascalevich (Brown, Vogelman & Brown, Jersey City, attorneys; Raymond A. Brown and Henry F. Furst, Jersey City, on the brief).

Edith S. Rose, Princeton, submitted a brief on behalf of amicus curiae Ass'n of American Publishers, Inc. (Smith, Cook, Lambert & Miller, Princeton, attorneys; Henry R. Kaufman, Brooklyn, N. Y., of the New York Bar, of counsel and on the brief).

Thomas C. Jamieson, Jr., Trenton, submitted a brief on behalf of amicus curiae American Newspaper Publishers Ass'n (Jamieson, McCardell, Moore, Peskin & Spicer, Trenton, attorneys; Hanson, O'Brien, Birney & Butler, Washington, D. C., of the District of Columbia Bar, of counsel; Arthur B. Hanson and Mitchell W. Dale, Washington, D. C., members of the District of Columbia Bar, on the brief).

The opinion of the court was delivered by


In these consolidated appeals The New York Times Company and Myron Farber, a reporter employed by the newspaper, challenge judgments entered against them in two related matters one a proceeding in aid of a litigant (civil contempt), the other for criminal contempt of court. The proceedings were instituted in an ongoing murder trial now in its seventh month, as a result of the appellants' failure to comply with two Subpoenas duces tecum, directing them to produce certain documents and materials compiled by one or both of these appellants in the course of Farber's investigative reporting of certain allegedly criminal activities. Farber's investigations and reporting are said to have contributed largely to the indictment and prosecution of Dr. Mario E. Jascalevich for murder. Appellants moved unsuccessfully before Judge William J. Arnold, the trial judge in State v. Jascalevich, to quash the two subpoenas; an order was entered directing that the subpoenaed material be produced for In camera inspection by the court. The appellants' applications for a stay of Judge Arnold's order were denied successively by the Appellate Division of the Superior Court, by this Court, and by two separate Justices of the Supreme Court of the United States.

Impelled by appellants' persistent refusal to produce the subpoenaed materials for In camera inspection, Judge Arnold issued an order returnable before Judge Theodore W. Trautwein, directing appellants to show cause why they should not be deemed in contempt of court. During the subsequent hearing, Judge Trautwein ordered counsel for Jascalevich to apply to Judge Arnold, pursuant to R. 1:10-5, for an additional order to show cause, this to be in aid of litigants' rights. The order was issued, served and the hearing on the matter consolidated with the hearing on the criminal contempt charge.

Judge Trautwein determined that both appellants had wilfully contemned Judge Arnold's order directing that materials be produced for In camera inspection and found them guilty as charged. A fine of $100,000 was imposed on The New York Times and Farber was ordered to serve six months in the Bergen County jail and to pay a fine of $1,000. Additionally, in order to compel production of the materials subpoenaed on behalf of Jascalevich, a fine of $5,000 per day for every day that elapsed until compliance with Judge Arnold's order was imposed upon The Times; Farber was fined $1,000 and sentenced to confinement in the county jail until he complied with the order.

The Appellate Division granted a stay of the contempt orders but denied a stay of the orders for relief of a litigant. Appellants' initial motion for direct certification to this Court was denied. The Attorney General, designated by the Court to prosecute the contempt charges against the appellants, moved before the Appellate Division for a remand in order that the trial court might determine whether the news media privilege, asserted by appellants throughout these proceedings, had been waived. This motion was denied and an appeal was taken to this Court. In response to an inquiry by the Court, the Attorney General filed a letter which contained, Inter alia, a motion for direct certification.

The Attorney General's motions for leave to appeal and for direct certification were granted, as was the appellants' motion for direct certification.

I The First Amendment

Appellants claim a privilege to refrain from revealing information sought by the Subpoenas duces tecum essentially for the reason that were they to divulge this material, confidential sources of such information would be made public. Were this to occur, they argue, newsgathering and the dissemination of news would be seriously impaired, because much information would never be forthcoming to the news media unless the persons who were the sources of such information could be entirely certain that their identities would remain secret. The final result, appellants claim, would be a substantial lessening in the supply of available news on a variety of important and sensitive issues, all to the detriment of the public interest. They contend further that this privilege to remain silent with respect to confidential information and the sources of such information emanates from the "free speech" and "free press" clauses of the First Amendment. 1

In our view the Supreme Court of the United States has clearly rejected this claim and has squarely held that no such First Amendment right exists. In Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), three news media representatives argued that, for the same reason here advanced, they should not be required to appear and testify before grand juries, and that this privilege to refrain from divulging information, asserted to have been received from confidential sources, derived from the First Amendment. Justice White, noting that there was no common law privilege, stated the issue and gave the Court's answer in the first paragraph of his opinion:

The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it does not. (Branzburg v. Hayes, supra, 408 U.S. at 667, 92 S.Ct. at 2649, 33 L.Ed.2d at 631 (1972).)

In that case one reporter, from Frankfort, Kentucky, had witnessed individuals making hashish from marijuana and had made a rather comprehensive survey of the drug scene in Frankfort. He had written an article in the Louisville Courier-Journal describing this illegal activity. Another, a newsman-photographer employed by a New Bedford, Massachusetts television station, had met with members of the Black Panther movement at the time that certain riots and disorders occurred in New Bedford. The material he assembled formed the basis for a television program that followed. The third investigative reporter had met with members of the Black Panthers in northern California and had written an article about the nature and activities of the movement. In each instance there had been a commitment on the part of the media representative that he would not divulge the source of his article or story.

By a vote of 5 to 4 the Supreme Court held that newspaper reporters or other media representatives have no privilege deriving from the First Amendment to refrain from divulging confidential information and the sources of such information when properly subpoenaed to appear before a grand jury. The three media representatives were directed to appear and testify. The holding was later underscored and applied directly to this case by Justice White in a brief opinion filed in this cause upon the occasion of his denial of a stay sought by these appellants. He said,

There is no present authority in this Court either that newsmen are constitutionally privileged to...

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