Pappas, In re

• Decision Date: 29 January 1971
• Citation: 266 N.E.2d 297,358 Mass. 604
• Parties: , 21 Rad. Reg. 2d (P & F) 2038 In the Matter of Paul PAPPAS.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 297

266 N.E.2d 297

358 Mass. 604, 21 Rad. Reg. 2d (P & F) 2038

In the Matter of Paul PAPPAS.

Supreme Judicial Court of Massachusetts, Bristol.

Argued Jan. 5, 6, 1971.

Decided Jan. 29, 1971.

William H. Carey, New Bedford, for Paul Pappas.

Armand Fernandes, Jr., Asst. Dist. Atty., for the Commonwealth.

Lawrence J. McKay and Floyd Abrams, New York City, for National Broadcasting Co., Inc., Clarence J. Fried, New York City, for American Broadcasting Companies, Inc., and W. Theodore Pierson and J. Laurent Scharff, Washington, D.C., for Radio Television News Directors Assn., amici curiae, submitted a brief.

Robert W. Meserve, Boston, for Columbia Broadcasting System, Inc., amicus curiae, submitted a brief.

James C. Heigham, Boston, for Massachusetts Newspaper Information Service, amicus curiae, submitted a brief.

Before TAURO, C.J., and SPALDING, CUTTER, SPIEGEL, REARDON, QUIRICO and BRAUCHER, JJ.

CUTTER, Justice.

Pappas was employed by a New Bedford television station as a newsman-photographer. In late July, 1970, he was sent to New Bedford to photograph and report on 'fires and other turmoil' related to civil disorder then in progress. He wished 'to cover * * * a Black Panther news conference' at a boarded up store, which he could not approach because of a barricade. He (about 3 P.M. on July 30) did photograph and record in a street within the barricaded area the reading of a 'prepared statement' by one Bob Heard, who 'had come outside from * * * Black Panther headquarters.' Pappas was told that 'he would be guaranteed safe conduct if he did go back' into the barricaded area. About 9 P.M. Pappas 'was allowed to enter the * * * sotre--Black Panther headquarters. As a condition * * * Pappas agreed not to report anything he saw or heard inside the store except a police raid.' There 'was no raid, so 'Pappas reported nothing.'

Pappas, under subpoena, appeared before the grand jury. He refused to answer certain questions about what he saw and heard in the Black Panther headquarters because (a) he claimed a privilege ¹ 'to protect the source of information acquired in confidence'; (b) he 'had promised not to reveal what he saw or heard' and 'a breach of his promise' would make it difficult to get information in the future, thus impairing his means of livelihood; and (c) to reveal it would be 'a violation of his rights under the First and Fifth Amendments' to the Constitution of the United States. He suggested also that to reveal information would 'give rise to some possible danger to' him.

Grand jurors asked what he had seen and heard, and also the names of persons seen in the headquarters. Certain names were suggested to him. Pappas 'answered all other questions' but refused to disclose 'what he saw and heard inside the headquarters or the identity of persons there.' There is outstanding a subpoena requiring Pappas to appear at a further grand jury sitting. '(P)resumably the same questions will be asked and the same refusal to answer will occur.'

On September 28, 1970, Pappas filed in the Superior Court a motion to quash the outstanding subpoena. After hearing, a Superior Court judge ruled 'that Pappas does not have any privilege and must respond to the subpoena and testify to such questions as may be put to him by the grand jury relating to what he saw and heard, and the identity of any persons * * * seen.' The judge then reported the matter for the determination of this court. See G.L. c. 278, § 30A, inserted by St.1954, c. 528. See also G.L. c. 231, § 111; In re Vautier, petr., 340 Mass. 341, 344--345, 164 N.E.2d 317.

1. We regard the report as having submitted for our determination the correctness of the presiding judge's rulings on the motion to quash. Pappas and several amici curiae ² have broadly discussed the extent to which the First Amendment may preclude prosecuting officers or grand juries from requiring news gatherers to give evidence concerning information obtained, and matters observed, by them in the course of their contacts with news sources whom they deem to be confidential. We do not have before us ³ the text of any specific questions which Pappas has refused to answer before the grand jury, or any petition to hold him for contempt for his refusal. We have only general statements concerning (a) the inquiries of the grand jury, and (b) the materiality of the testimony sought from Pappas. The record does not show the expected nature of his testimony or what likelihood there is of being able to obtain that testimony from persons other than news gatherers.

We take judicial notice that in July, 1970, there were serious civil disorders in New Bedford, which involved street barricades, exclusion of the public from certain streets, fires, and similar turmoil. We were told at the arguments that there was gunfire in certain streets. We assume that the grand jury investigation was an appropriate effort to discover and indict those responsible for criminal acts.

2. In Massachusetts, the area of privileges concerning confidential communications is limited. ⁴ The principal authorities are collected in Leach & Liacos, Handbook of Massachusetts Evidence, pp. 134--151, and Hughes, Evidence, §§ 141--142, 161--166, 171--173 (see also §§ 123--128).

The principle that the public 'has a right to every man's evidence' (Wigmore, Evidence (McNaughton rev.) §§ 2192, 2285) has been preferred, on the whole, to countervailing interests. Privileges are exceptional. 'In general, then, the mere fact that a communication was made in express (or implied) confidence * * * does not create a privilege.' Wigmore, op. cit. § 2286, fns. 9, 21. Massachusetts, unlike certain other States, has created no statutory privilege protecting news sources. ⁵ The contention recently has been advanced that the First Amendment may give rise to at least a qualified, but probably not absolute, privilege protecting in some degree the news sources of journalists and news collectors for other media. The argument seems to run in general as follows. (1) It is contended that, in some circumstances, to force a newsman to testify before a court or grand jury about events seen by him, or about matters learned by him, in the performance of his duties, may impair the ability of a free press (including other communications media) 'to supply the public need for information * * * with respect to * * * significant issues.' Cf. Thornhill v. Alabama, 310 U.S. 88, 102, 60 S.Ct. 736, 744, 84 L.Ed. 1093 (State antipicketing statute held invalid). (2) It is urged that some judicial consideration must be given to whether (a) the need for information from the news gatherer as a witness outweighs (b) the possible harm to his ability to obtain news and to the reporting ability of the press. (3) In support of such judicial consideration, it is asserted that the First Amendment ⁶ creates in the news media and their employees a privilege (or immunity) against such governmental action as may induce either press self-censorship or inability of the press to obtain information. ⁷

Professor Edmund M. Morgan in his preface to the American Law Institute's Model Code of Evidence, p. 7, expressed the prevailing understanding about 'privileges against disclosure of relevant data. Such a privilege suppresses valuable evidence to which the trier of fact is competent to give its proper weight. So serious an interference with a rational inquiry can be justified only by accompanying social benefits of high worth. It may be conceded that the harm done to the litigant and to society by refusing to compel the disclosure of pertinent facts may sometimes be outweighed under existing conditions by benefits to society in general accruing from the preservation of a confidential relationship or from protection against official oppression. But a mere sentiment or an outgrown theory as to relative social values can no more serve as a determining factor than can a consideration of professional pride of particular callings. If a privilege to suppress the truth is to be recognized at all, its limits should be sharply determined so as to coincide with the limits of the benefits if creates. In many decisions this principle is disregarded, sentiment serves for judgment, and rhetoric is substituted for reason. The common law and statutory privileges have been carefully reexamined (by the framers of the Model Code) and have in great measure been retained in the Code with important modifications' (emphasis supplied). ⁸

The cases in general have supported Professor Morgan's views. They also recognize that, in exercising the judicial power to compel testimony, some consideration of conflicting public interests is appropriate to prevent unreasonably broad, unnecessary, irrelevant, or needlessly burdensome inquiry. See Garland v. Torre, 259 F.2d 545, 548--551 (2d Cir.), cert. den. 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231; Brewster v. Boston Herald-Traveler Corp., 188 F.Supp. 565 (D.Mass); Clein v. State (Fla.), 52 So.2d 117, 120--121; In re Goodfader's Appeal, 45 Haw. 317, 322--344, 367 P.2d 472; People ex rel. Mooney v. Sheriff of N. Y. County, 269 N.Y. 291, 293--295, 199 N.E. 415; State v. Buchanan, 250 Or. 244, 247--249, 436 P.2d 729. See also Taylor & Selby Appeals, 412 Pa. 32, 38--40, 41--42, 193 A.2d 181 (holding that newsmen were protected by a Pennsylvania statute from disclosing sources of news and certain other matters, but stating that no constitutional privilege of nondisclosure exists). Cf. Ex parte Sparrow, 14 F.R.D. 351, 352--353 (N.D.Ala--decision based on Alabama statutory privilege). A statutory newsman's privilege has been strictly construed. Brogan v. Passaic Daily News, 22 N.J. 139, 150--154, 123 A.2d 473.

Pappas and the amici seem greatly to rely on one recent case which goes substantially beyond existing authority. See Caldwell v. United States, 434 F.2d 1081 (9th Cir.), ^a revg. 311 F.Supp. 358, 359 (N.D.Cal.). In that case, application was made to the District...