Maressa v. New Jersey Monthly

• Citation: 445 A.2d 376,89 N.J. 176
• Court: United States State Supreme Court (New Jersey)
• Decision Date: 06 May 1982
• Parties: , 8 Media L. Rep. 1473 Joseph A. MARESSA, Plaintiff-Respondent, v. NEW JERSEY MONTHLY and Hendrix F. C. Niemann and Christopher Leach and Michael Aron and Teresa Carpenter and Harvey Fisher and Robert Narus, jointly, severally and in the alternative, Defendants-Appellants.

Page 176

89 N.J. 176

445 A.2d 376, 8 Media L. Rep. 1473

Joseph A. MARESSA, Plaintiff-Respondent, v. NEW JERSEY MONTHLY and Hendrix F. C. Niemann and Christopher

Leach and Michael Aron and Teresa Carpenter and Harvey

Fisher and Robert Narus, jointly, severally and in the

alternative, Defendants-Appellants.

Supreme Court of New Jersey.

Argued Jan. 11, 1982.

Decided May 6, 1982.

Alan M. Wallack, Princeton, for defendants-appellants (Brener, Wallack & Hill, Princeton, attorneys; Alan M. Wallack and Joseph C. Mahon, Princeton, on the brief).

Arthur B. Hanson, Washington, D. C., a member of the Dist. of Columbia Bar, for amicus curiae American Newspaper Publishers Ass'n (Jamieson, McCardell, Moore, Peskin & Spicer, Princeton, attorneys; Arthur B. Hanson, Frank M. Northam, Mitchell W. Dale and Arthur D. McKey, Washington, D. C., members of the Dist. of Columbia Bar, of counsel; Thomas C. Jamieson, Jr., and Frances Goldmark, Princeton, on the brief).

Benjamin Goldstein, Berlin, for plaintiff-respondent (Maressa, Goldstein, Birsner & Patterson, Berlin, attorneys; Benjamin Goldstein and Nancy D. Gold, Berlin, on the brief).

Thomas J. Cafferty, North Brunswick, and Frances Goldmark, Princeton, submitted a brief on behalf of amici curiae New Jersey Press Ass'n and the Trenton Times Corp. (Seiffert, Frisch, McGimpsey & Cafferty, North Brunswick, and Jamieson, McCardell, Moore, Peskin & Spicer, Princeton, attorneys).

Peter G. Banta, Hackensack, submitted a brief on behalf of amicus curiae The Bergen Evening Record Corp. (Winne, Banta & Rizzi, Hackensack, attorneys; Peter G. Banta and Donald A. Klein, Hackensack, of counsel).

The opinion of the Court was delivered by

PASHMAN, J.

Twice in recent years, this Court has mediated between a newsperson's right not to disclose confidential information and a criminal defendant's right to compel the production of witnesses in his or her favor. State v. Boiardo, 82 N.J. 446, 414 A.2d 14 (1980); In re Farber, 78 N.J. 259, 394 A.2d 330 (1978). We have held that the New Jersey Shield Law, N.J.S.A. 2A:84A-21, protects confidential information gathered by news media "to the greatest extent permitted by the Constitution of the United States and that of the State of New Jersey." Farber, supra, 78 N.J. at 270, 394 A.2d 330. Because criminal defendants have a constitutional right to obtain evidence necessary to their defense, U.S.Const., Amend. 6; N.J.Const. (1947), Art. I, par. 10, including confidential information, we held in those criminal cases that the newsperson's privilege is not absolute.

Today, for the first time since the landmark libel case of New York Times v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), this Court must decide whether the Shield Law allows newspersons who are sued for libel to refuse to disclose their sources and editorial processes leading to publication of the alleged libel. As in the earlier criminal cases, we must decide here whether a countervailing constitutional right limits the Shield Law. In the present suit, which seeks monetary damages for alleged injury to reputation, we find no such right. We therefore hold that the newsperson's privilege in a civil action for libel is absolute. Since defendants have not waived their privilege, the trial court's order compelling answers to plaintiff's discovery requests must be reversed.

I

The October 1979 issue of New Jersey Monthly magazine contains an article entitled "Rating the Legislature" that evaluates the performance of New Jersey legislators. The article discusses several categories of representatives--including "The Best," "The Worst" and "The Drones." Plaintiff, Senator Joseph Maressa, appeared under "The Worst" category. He was described as a "floundering and ineffectual" man whose shortcomings went unnoticed by scores of extremists who, "appealing to Maressa's considerable ego, managed to enlist him as their advocate this term." Describing Maressa as "callous, stupid, and just plain devious," the article's authors listed several incidents upon which they based the senator's low rating. The article claimed that during a Senate debate of the death penalty, Maressa whined and attempted to cut off debate; that he smuggled an anti-gay lobbyist onto the Senate floor and then lied to the sergeant-at-arms that the lobbyist was his aide; that he was called before the Legislative Ethics Committee; and that he was "shot down" by the Supreme Court Advisory Committee. The article concluded, "Maressa's problem is not so much that he is evil as that he is sneaky, self-interested, and basically unprincipled."

Maressa filed a libel action in the Superior Court, Law Division, on December 12, 1979 against the magazine's owner, publisher, editor-in-chief, an editor and the three reporters who wrote the article. He alleged that the article falsely conveyed to the public that he was unfit to serve the people of New Jersey, and that he had participated in dishonest, illegal and unethical practices. Maressa further alleged that defendants had published the defamatory falsehoods without making reasonable inquiries as to their accuracy, thereby defaming him in reckless disregard of the truth. ¹

This interlocutory appeal arose during pretrial discovery proceedings. On February 11, 1980 plaintiff served interrogatories upon defendants, and on April 8, 1980 plaintiff took the depositions of the three reporter defendants. Maressa sought a broad range of information including names and addresses of all sources interviewed, copies of all rough drafts, notes, questions and memos pertaining to the article, and a summary of what each source told the reporters. Defendants refused to provide any information about their sources or editorial processes. They answered each interrogatory with the word "privileged."

Plaintiff sought an order from the Law Division compelling more specific answers to the interrogatories and deposition questions. On June 27, 1980 the trial court ruled that the responses sought by plaintiff were not privileged; alternatively, the court found that any newsperson's privilege had been waived. Maressa then served upon defendants a supplemental set of interrogatories containing the unanswered questions. After defendants again claimed the newsperson's privilege, the trial court on October 15, 1980 directed them to provide more specific answers within 20 days or face judicial sanctions.

The Appellate Division granted defendants leave to appeal the order compelling disclosure. Before that court heard the appeal, we directly certified the matter on our own motion. R. 2:12-1. We now reverse.

II

The newsperson's privilege in New Jersey dates from a 1933 statute, ² L.1933, c. 167; N.J.S.A. 2:97-11. Like other evidentiary privileges, it limits the common law right to compel testimony in judicial proceedings. The Legislature enacts such privileges "because in the particular area concerned, they are regarded as serving a more important public interest than the need for full disclosure." State v. Briley, 53 N.J. 498, 506, 251 A.2d 442 (1969).

Unlike most other privileges, however, a newsperson's privilege has a constitutional foundation. While narrowly upholding a grand jury's right to subpoena reporters, the United States Supreme Court has unanimously recognized that a reporter's gathering of information receives some First Amendment protection. See Branzburg v. Hayes, 408 U.S. 665, 691, 92 S.Ct. 2646, 2661, 33 L.Ed.2d 626 (1972) (opinion of White, J., joined by Burger, C. J., and Blackmun, Rehnquist, JJ.); id. at 709, 92 S.Ct. at 2670 (Powell, J., concurring); id. at 712, 92 S.Ct. at 2686 (Douglas, J., dissenting); id. at 725, 92 S.Ct. at 2694 (Stewart, J., dissenting, joined by Brennan and Marshall, JJ.).

Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973 (1980), which recognized a First Amendment right to attend criminal trials, reinforced the newsperson's right to gather information:

whether we describe this right ... as a 'right of access' ... or a 'right to gather information,' ... we have recognized that 'without some protection for seeking out the news, freedom of the press could be eviscerated.' [448 U.S. at 576, 100 S.Ct. at 2827 (quoting Branzburg v. Hayes, supra, 408 U.S. at 681, 92 S.Ct. at 2656; additional citations and footnote omitted).]

Lower federal courts have read Branzburg as supporting some First Amendment protection for reporters' use of confidential sources. See, e.g., Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 594-95 (1st Cir. 1980); Gulliver's Periodicals Ltd. v. Chas. Levy Circulating Co., 455 F.Supp. 1197, 1202 (N.D.Ill.1978); see also Lindberg, Source Protection in Libel Suits, 81 Colum.L.Rev. 338 (1981).

Federal constitutional protection of news gathering, however, gives newspersons only a qualified privilege not to reveal sources and other confidential information. In Branzburg v. Hayes, supra, the Court upheld grand jury subpoenas of newspaper reporters in three state courts. And in Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979), the Court held that the First Amendment does not preclude a plaintiff's inquiries into the editorial processes leading to publication of an allegedly defamatory television program.

To buttress the constitutional protection for news gathering, the Legislature has amended the Shield Law, N.J.S.A. 2A:84A-21, twice in recent years. Both enactments were in large part responses to judicial construction limiting the effect of the statute.

The bill that ultimately led to the 1977 Shield Law amendments, L.1977, c. 253, was introduced shortly after the Appellate Division upheld incarceration of a newspaper reporter for his refusal to testify in In re Bridge, 120 N.J.Super. 460, 295 A.2d 3 (1972), ³ cert. den. 410 U.S. 991, 93 S.Ct. 1500, 36 L.Ed.2d 189 (1973). There the court found that by disclosing the name of his source and some information received from the...