Loadholtz v. Fields

• Citation: 389 F. Supp. 1299
• Decision Date: 07 February 1975
• Docket Number: No. 74-587 Civ-J-S.,74-587 Civ-J-S.
• Parties: Thomas S. LOADHOLTZ, Plaintiff, v. Alan B. FIELDS, Jr., and Neil Thorn, Defendants.
• Court: U.S. District Court — Middle District of Florida

389 F. Supp. 1299

Thomas S. LOADHOLTZ, Plaintiff, v. Alan B. FIELDS, Jr., and Neil Thorn, Defendants.

No. 74-587 Civ-J-S.

United States District Court, M. D. Florida, Jacksonville Division.

February 7, 1975.

William L. Townsend, Jr., Palatka, Fla., for plaintiff.

Alan B. Fields, Jr., Palatka, Fla., E. Robert Williams, Jacksonville, Fla., for defendant Fields.

Joe C. Miller, II, Palatka, Fla., for defendant Thorn.

Parker D. Thomson, Sanford L. Bohrer, Robert T. Wright, Jr., of Paul & Thomson, Miami, Fla., for Clarence Arnold Prevatt.

ORDER AND MEMORANDUM OPINION

CHARLES R. SCOTT, District Judge.

This cause came before the Court with respect to the plaintiff's motion to compel discovery, filed herein October 25, 1974. At issue herein are First Amendment considerations of profound dimension.

Clarence Arnold (Butch) Prevatt is a reporter for the Palatka Daily News, a newspaper published in Putnam County, Florida. On September 24, 1974, an article under the byline of "Butch" Prevatt was published in the Palatka Daily News which was entitled "Harassment, Intimidation Cited in Arrest of Couple." On October 14, 1974, Mr. Prevatt was duly served with a subpoena to testify and produce certain documents on October 23, 1974, at a deposition. On October 23, 1974, at the deposition, plaintiff's attorney was served with an "Objection to Production of Documents Pursuant to Subpoena Duces Tecum." In addition to refusing to produce the requested documents, Mr. Prevatt refused to answer questions from plaintiff's attorney concerning statements made by the defendant Fields about the plaintiff, about the interview at which such statements were made and about further statements made by defendant Fields regarding the lawsuits which gave rise to the instant case. On this basis, the motion to compel discovery was filed by the plaintiff.

Mr. Prevatt opposes the motion on the ground that requiring him to attend the deposition and produce unpublished as well as published documents received or developed by him in the course of his duties as a reporter necessarily has a "chilling effect" upon his functioning as a reporter and upon the flow of information to the general public in violation of the First and Fourteenth Amendments. This Court agrees.

The issue raised is whether the First Amendment prevents compulsory disclosure in civil litigation of materials developed in preparation of a newspaper article. This Court concludes that the paramount interest served by the unrestricted flow of public information protected by the First Amendment outweighs the subordinate interest served by the liberal discovery provisions embodied in the Federal Rules of Civil Procedure.

Analysis in this area must necessarily begin with the axiomatic principle that the First Amendment occupies a preferred position among the individual rights conferred by the Constitution and that any infringements thereon are closely scrutinized and strictly limited. Gooding v. Wilson, 405 U.S. 518, 92 S.Ct. 1103, 31 L.Ed.2d 408 (1972); Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971); reh. den. 404 U.S. 876, 92 S.Ct. 26, 30 L.Ed.2d 124; Speiser v. Randall, 357 U.S. 513, 78 S.Ct. 1332, 2 L.Ed.2d 1460 (1958); reh. den. sub nom. Prince v. City and County of San Francisco, 358 U.S. 860, 79 S.Ct. 13, 3 L.Ed.2d 95. The concept of freedom of the press as guaranteed by the First Amendment is the keystone of our constitutional democracy and is broad enough to include virtually all activities for the press to fulfill its First Amendment functions. Grosjean v. American Press Co., 297 U. S. 233, 56 S.Ct. 444, 80 L.Ed. 660 (1936); Lamont v. Postmaster General, 381 U.S. 301, 85 S.Ct. 1493, 14 L.Ed.2d 398 (1965); Bridges v. California, 314 U.S. 252, 263, 62 S.Ct. 190, 86 L.Ed. 192 (1941). Only a "compelling state interest in the regulation of a subject within the State's constitutional power to regulate can justify limiting First Amendment freedoms." NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328, 341, 9 L.Ed.2d 405 (1963); Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 546, 83 S.Ct. 889, 9 L.Ed.2d 929 (1963); De Gregory v. Attorney General of New Hampshire, 383 U.S. 825, 86 S.Ct. 1148, 16 L.Ed.2d 292 (1966); Bates v. Little Rock, 361 U.S. 516, 524, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293, 296, 297, 81 S.Ct. 1333, 6 L.Ed.2d 301 (1961). Any justifiable infringement upon First Amendment rights must be no greater than is necessary to vindicate legitimate subordinating interests. In re Stolar, 401 U. S. 23, 91 S.Ct. 713, 27 L.Ed.2d 657 (1971); United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968); reh. den. 393 U.S. 900, 89 S.Ct. 63, 21 L.Ed.2d 188; Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231 (1960).

In Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), in which the Supreme Court held that a newspaper reporter may be required to respond to a grand jury subpoena relevant to a criminal investigation, the majority recognized, nevertheless, that news gathering "qualifies" for First Amendment protection and that "without some protection for seeking out the news, freedom of the press could be eviscerated." 408 U.S., supra, at 681, 92 S. Ct. at 2656. Further, the Court in describing what was not involved therein, stated: "No attempt is made to require the press to publish its sources of information or indiscriminately to disclose them on request." 408 U.S., supra, at 682, 92 S.Ct. at 2657. In Mr. Justice Powell's concurring opinion, he emphasized "the limited nature of the Court's holding." 408 U.S., supra, at 709, 92 S. Ct. at 2671.

This Court has neither been cited nor has found any subsequent case which has extended the Branzburg case holding beyond the limited confines of the criminal justice system. See also In re Bridge, 120 N.J.Super. 460, 295 A.2d 3 (1972). In Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972), the Court of Appeals for the Second Circuit held, in a civil rights case, that a journalist could not be required to disclose his resource materials for a magazine article which he had authorized and published. The Court rejected the notion that the wide open discovery provisions of the Federal Rules of Civil Procedure justified disclosure:

As against these significant public and private interests, appellants urge us to consider the overriding importance of compelling testimony in judicial proceedings citing cases. This federal policy is particularly strong, we are told, when the issue involves enforcement of federal laws in federal courts, and is even more trenchant when the case involves claims under various provisions of the civil rights acts.

This argument, we believe, goes too far, for it would require disclosure of confidential sources in every case based upon federal question jurisdiction or, at least, in every case raising a claim under the civil rights acts. We can see no justification for either a blanket rule covering all federal question cases, or for a partial rule of disclosure for all civil rights actions. It would be inappropriate for a court to pick and choose in such a gross fashion between different acts of Congressional legislation, labelling one "exceedingly important" and another less so, without specific directions from the Legislature. While we recognize that there are cases — few in number to be sure — where First Amendment rights must yield, we are still mindful of the preferred position which the First Amendment occupies in the pantheon of freedoms. Accordingly, though a journalist's right to protect confidential sources may not take precedence over that rare overriding and compelling interest, we are of the view that there are circumstances, at the very least in civil cases, in which the public interest in non-disclosure of a journalist's confidential sources outweighs the public and private interest in compelled testimony. The case before us is one where the First Amendment protection does not yield.

470 F.2d at 782-783 (emphasis added).

In United States v. Liddy, 354 F.Supp. 208 (D.D.C.1972), Judge Sirica, who required a newspaper to produce evidentiary material in its possession relevant to a criminal trial arising out of the infamous "Watergate" burglary, stated with respect to the Baker case:

. . . In context, it appears that Judge Kaufman distinguishes Branzburg as being concerned principally with the criminal

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