People v. Wolf

• Decision Date: 24 January 1972
• Citation: 329 N.Y.S.2d 291,69 Misc.2d 256
• Parties: The PEOPLE of the State of New York, in the Matter of Petitioner's motion to quash a subpoena v. Daniel WOLF and the Village Voice, Inc.
• Court: New York Supreme Court

Page 291

329 N.Y.S.2d 291

69 Misc.2d 256

The PEOPLE of the State of New York, in the Matter of Petitioner's motion to quash a subpoena

v.

Daniel WOLF and the Village Voice, Inc.

Supreme Court, Trial Term, New York County, Part XXX.

Jan. 24, 1972.

Lankenau, Kovner & Bickford, New York City (Victor A. Kovner, New York City, of counsel), for petitioners.

Frank S. Hogan, Dist. Atty., New York City (John C. Fine, New York City, of counsel), for respondent.

HAROLD BIRNS, Justice:

The petitioners, Village Voice, Inc., a weekly New York newspaper, and its editor Daniel Wolf, seek an order quashing a subpoena duces tecum.

This subpoena duces tecum was issued, served, and made returnable November 1st, 1971 at a time when indictments stemming from the Tombs riots, hereinafter referred to, were on the trial calendar of this court in Part 42 thereof. The indictments have since been marked ready for trial.

On November 5, 1970, approximately three months after the Tombs riots had ended, the petitioners published an article entitled 'Rebellion in the Tombs', allegedly written under the 'by-line' of Ricardo de Leon, an inmate, who, along with other inmates, was indicted for kidnapping, coercion and other crimes allegedly committed during the riots.

In preparing the prosecution's case, the district attorney served the said subpoena duces tecum demanding the original manuscript of the said article by the defendant de Leon.

Petitioners, in moving to quash the said subpoena, contend that to require the production of the said manuscript infringes upon the freedom of the press as guaranteed by the First Amendment, and that 'if persons interviewed know that the information they supply to newsmen is subject to subpoena meaningful information simply will not be provided'; and, secondly, that section 79--h of the Civil Rights Law (chapter 615 Laws of 1970) confers upon newspapers and professional reporters a privilege to refuse to disclose or surrender the manuscript herein referred to.

From the affidavits submitted by petitioners, it appears that the said manuscript was transmitted during the Tombs riots to Mrs. Mary Breasted, then a reporter for the Village Voice assigned to investigate and report on the disturbances in the city prisons during the summer and fall of 1970. Upon receipt of the manuscript it was edited and then published in the Village Voice as stated. Mrs. Breasted in her supporting affidavit states 'the manner in which I received the manuscript was confidential, and I am confident that the sole reason I was able to obtain the manuscript was that I was trusted by the inmates as a result of the relationship I had been able to establish and as a result of the publication of my earlier articles. There is no question in my mind that the inmates gave me information convinced that I would completely protect their confidence in using this information solely for the purpose of the publishing of news.'

The district attorney, on the other hand, maintains that the issuance and service of the subpoena in no way infringes upon petitioners' First Amendment rights, and that section 79--h of the Civil Rights Law establishes no privilege against disclosure or surrender of the said article, and that inasmuch as the article in question is published, authored and not anonymous, this court is not confronted with representations of confidentiality or anonymity which the statute was intended to protect.

The district attorney in his memorandum asserts that 'The letter or article in question is a confession which outlines the defendant's responsibility and participation in the aforesaid crimes.'

We are not concerned here with the plight of a newspaper reporter or journalist confronted recently with a demand to disclose the secret source of information received or to reveal the identity of the anonymous author of a particular statement (In re Caldwell, 311 F.Supp. 358; Caldwell v. United States, 9th Cir., 434 F.2d 1081, cert. granted 402 U.S. 942, 91 S.Ct. 1616, 29 L.Ed.2d 109 (1971)).

We are concerned with the question whether a newspaper or its reporter is privileged to withhold from a proper tribunal an alleged 'confession' advertised as authored by a person under indictment.

In most cases involving a refusal to disclose secret sources or anonymous informers used by journalists as a basis for news stories, federal and state courts have held repeatedly that the guarantee of the First Amendment is not absolute and the judicial compulsion of testimony is basic to the fair administration of justice (Garland v. Torre, 2nd Cir., 259 F.2d 545, cert. denied 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231; In re Goodfader, 45 Hawaii 317, 367 P.2d 472; State v. Buchanan, 250 Or. 244, 436 P.2d 729; In re Taylor, 412 Pa. 32, 193 A.2d 181).

In Garland v. Torre (supra) the Court of Appeals for the Second Circuit, speaking through Justice Stewart, sitting as a circuit justice, ruled that even if the newsman's right to conceal his sources comes under the First Amendment, it must necessarily yield to the overriding 'public interest in the fair administration of justice' notwithstanding the hypothesis that compulsory disclosure of confidential sources may act as 'an abridgement of press freedom by imposing some limitation on the availability of news' (Garland v. Torre, supra, 259 F.2d at pp. 548, 549). Justice Stewart particularly noted 'that we are not dealing here with the use of the judicial process to force a wholesale disclosure of a newspaper's confidential sources of news, nor with a case where the identity of the news source is of doubtful relevance or materiality. . . . The question asked of the appellant went to the heart of the plaintiff's claim. We hold that the Constitution conferred no right to refuse an answer.'

Here, the purported published 'confession', by an identified person, by its alleged nature, goes to the basic charge against the defendant de Leon.

It follows, then, that in the context of the aforementioned indictment, where no secret sources are involved, petitioners' claim that its news gathering potential will be impaired if, by subpoena, they are required to produce the manuscript, is entitled to no constitutional protection.

We are left, therefore, to consider the applicability of section 79--h of our Civil Rights Law. As far as applicable, it reads as follows:

' § 79--h. Special provisions relating to persons employed by, or connected with, news media.

'(a) Definitions. As used in this section, the following definitions shall apply:

'(1) 'Newspaper' shall mean a paper that is printed and distributed ordinarily not less frequently than once a week, and has done so for at least one year, and that contains news, articles of opinion (as editorials), features, advertising, or other matter regarded as of current interest, has a paid circulation and has been entered at United States post-office as second-class matter.

'(8) 'News' shall mean written, oral or pictorial information or communication concerning local, national or worldwide events or other matters of public concern or public interest or affecting the public welfare.

'(b) Exemption of professional journalists and newscasters from contempt.

'Notwithstanding the provisions of any general or specific law to the contrary, no professional journalist or newscaster employed or otherwise associated with any newspaper, magazine, news agency, press association, wire service, radio or television transmission station or network, shall be adjudged in contempt by any court, the legislature or other body having contempt powers, for refusing or failing to disclose any news or the source of any such news coming into his possession in the course of gathering or obtaining news for publication or to be published in a...