Oak Beach Inn Corp. v. Babylon Beacon, Inc.

• Citation: 476 N.Y.S.2d 269,464 N.E.2d 967,62 N.Y.2d 158
• Parties: , 464 N.E.2d 967, 10 Media L. Rep. 1761 OAK BEACH INN CORP. et al., Appellants, v. BABYLON BEACON, INC., Doing Business as Babylon Beacon Newspaper, et al., Respondents.
• Decision Date: 10 May 1984
• Court: New York Court of Appeals

Page 269

476 N.Y.S.2d 269

62 N.Y.2d 158, 464 N.E.2d 967, 10

Media L. Rep. 1761

OAK BEACH INN CORP. et al., Appellants, v. BABYLON BEACON, INC., Doing Business as Babylon Beacon

Newspaper, et al., Respondents.

Court of Appeals of New York.

May 10, 1984.

Patrick Kevin Brosnahan, Jr., Babylon, and Patricia S. Muhlrad, New York City, for appellants

Bartholomew J. Rebore, Lindenhurst, for respondents.

OPINION OF THE COURT

WACHTLER, Judge.

The question on this appeal is whether a newspaper, which has been sued for publishing an allegedly libelous letter to the editor, can be precluded from answering the complaint or making any defense to the suit if it refuses to disclose to the plaintiff the name of the person who wrote the letter. The trial court found the sanction appropriate for refusal to comply with its order directing the newspaper to satisfy plaintiff's demand for disclosure of the letter writer's identity. The Appellate Division reversed relying on section 79-h of the Civil Rights Law, popularly known as the Shield Law, which grants a journalist an exemption from being "adjudged in contempt" for refusing or failing to disclose the "source" of any particular news item. 92 A.D.2d 102, 459 N.Y.S.2d 819. The Appellate Division also granted the plaintiffs leave to appeal to this court on a certified question as to the correctness of its order.

The Babylon Beacon is a weekly newspaper published on Long Island. Robert Matherson is the owner of the Oak Beach Inn which is also located on Long Island. In March of 1981 Matherson ran a paid advertisement in the paper in which he criticized local officials for failing to take action to protect the public from a dangerous curve on Montauk Highway. The advertisement was captioned "Let's Stop The Slaughter On Our Highways". On April 9, 1981 the newspaper published a letter to the editor accusing Matherson of contributing to the problem and otherwise endangering the public safety in his management of the Oak Beach Inn. The letter alleged, for example, that obviously intoxicated persons were served alcoholic beverages at the Inn, that fire code violations were reported, and that the Inn and the adjacent parking lot were permitted to become dangerously overcrowded. This letter was printed under the caption "Hypocrisy Cited in O.B.I. Advertisement". At the end of the letter the paper noted that the writer's name had been "withheld upon request".

In September of 1981 the plaintiffs commenced a libel action against the newspaper, its owner, and various members of the staff, claiming that the letter contained false statements which had been maliciously published by the defendants. Simultaneously the plaintiffs served a show cause order demanding that the defendants be compelled "pursuant to CPLR Sec. 3102(c)" to disclose "the name and last known address of the writer or writers" of the letter to the editor. In an affidavit attached to the show cause order plaintiffs contended that "knowledge of this matter is necessary in order for the plaintiffs to determine who to sue, pursuant to CPLR 3102(c)". The defendants opposed the application claiming that the motion for disclosure was premature because issue had not been joined. The defendants also contended that the demand for disclosure raised "serious constitutional questions of freedom of speech and freedom of the press". In reply plaintiffs observed that "CPLR 3102(c) permits an examination prior to commencement of an action for the purpose of identifying prospective defendants to plaintiffs' contemplated suit". The court granted the plaintiffs' motion and directed defendants to furnish a copy of the letter to the plaintiffs.

The defendants then moved for reargument. They stated that it is the policy of the newspaper to require those who submit letters to the editor to provide their names, addresses and telephone numbers, if they wish the letters to be published. Defendants noted, however, that it was also the policy of the paper to print letters anonymously when, as in this case, the letter writer so requests. They argued that compelling disclosure of the letter writer's identity under these circumstances would infringe the defendants' First Amendment rights and would also violate section 79-h of the Civil Rights Law of this State. The court granted reargument but adhered to its original decision stating: "Civil Rights Law § 79-h, from a plain reading of its terms, does not prevent disclosure. What it does is eliminate contempt as a remedy for failure to comply with court-ordered disclosure. (See CPLR R.3124). Contempt aside, there are other remedies available. (See CPLR § 3126)."

When the defendants still refused to disclose the name of the letter writer, the plaintiffs moved to have them held in contempt for disobeying the court's order which: "thereby deprived of their cause of action against the author of said letter". This however was only requested "in the alternative". The primary relief requested was an order, pursuant to CPLR 3126, striking the defendants' answer and directing the entry of a default judgment against the defendants on the libel complaint. In support of their contention that this remedy was appropriate, the plaintiffs now urged that: "the information sought goes to the heart of the plaintiffs' libel action. It is an essential element in plaintiffs' proof of malice; and may conceivably reveal that defendant newspaper had no reliable source, or that his reliance upon this particular source showed a reckless disregard for the truth". In response to this latter contention the defendants urged that there was "no need for the drastic remedy" of striking their answer because the defendants did not intend to make "affirmative use" of the anonymous letter writer in defending against the complaint. They stated that they intended to defend the suit completely on the basis of their own actions, "without relying on any of the investigation or underlying material that the source may or may not have used".

The court held that the remedy of contempt is barred by section 79-h of the Civil Rights Law. The court also held, however, that the Shield Law "in no way inhibits the other remedies" specified in CPLR 3126, "which may be imposed upon a party for refusal to comply with an order directing disclosure". Relying on CPLR 3126 (subd. 3), the court ordered that the defendants' answer be stricken and that the plaintiffs be permitted to move for summary judgment, or other appropriate relief, unless the defendants made the letter available for inspection within 15 days.

The Appellate Division granted a stay and then reversed. The appellate court noted that privileged material was exempt from discovery under CPLR 3101 (subd. ) and concluded that section 79-h of the Civil Rights Law established such a privilege for journalists with respect to their sources. The court observed that the latter statute only speaks in terms of shielding the journalist from contempt, but held that it "would be unduly restricted if journalists invoking the privilege were subjected to large monetary judgments in civil actions upon their refusal to reveal news sources simply because a contempt proceeding was not involved". (92 A.D.2d, p. 104, 459 N.Y.S.2d 819.) The court also held that a letter to the editor qualifies as "news" within the meaning of the statute.

Although we agree with the Appellate Division that the order of the trial court should be set aside, we do so for different reasons.

The Shield Law was adopted in 1970 as section 79-h of the Civil Rights Law (L.1970, ch. 615, § 1). The sponsor of the bill stated that it was intended to protect "newsmen from being held in contempt for refusing to disclose their news sources before a court inquiry, legislative hearing or any other body having contempt powers" and had been prompted by recent efforts made by Federal authorities to subpoena journalists in order to obtain evidence which could later be used in criminal prosecutions (see N.Y.Legis.Ann.1970, pp. 33-34). When the Governor signed the bill he also noted that it "protects journalists and newscasters from charges of contempt" and observed that the "threat to a newsman of being charged with contempt and of being imprisoned for failure to disclose his information or its sources can significantly reduce his ability to gather vital information" by cutting off "valuable sources of information" (see N.Y.Legis.Ann.1970, p. 508).

By its terms the statute expressly provides for "Exemption of professional journalists and newscasters from contempt" (Civil Rights Law, § 79-h, subd. ). Subsequent amendments have clarified and broadened the statute in some respects (see L.1975, ch. 316, § 1; L.1981, ch. 468, §§ 1-3). However, the Legislature has never established an absolute right or granted journalists complete immunity from all legal consequences of refusing to disclose evidence relating to a news source. At the time of these proceedings the relevant portion of the statute provided that "no professional journalist or newscaster * * * shall be adjudged in contempt by any court, the legislature or other body having contempt powers, nor shall a grand jury seek to have a journalist or newscaster held in contempt by any court, legislature or other legislative body having contempt powers for refusing or failing to disclose any news or the source of any such news" (Civil Rights Law, § 79-h, subd. ).

Contempt is the traditional remedy employed by public bodies against those who have refused to comply with orders to testify or disclose information. It usually involves imprisonment, a fine or both (see, e.g., CPLR 2308; Judiciary Law, § 753). It is considered a drastic measure (see Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR C3126:4) and often is defined and prosecuted as a criminal offense (see Penal Law, §§ 215.50, 215.60, 215.65; Judiciary Law, § 750, subd. A, pars. 3, 5, 7). The sanctions authorized by CPLR...