Selcraig, In re

Citation705 F.2d 789
Decision Date27 May 1983
Docket NumberNo. 82-1067,82-1067
Parties10 Ed. Law Rep. 965, 9 Media L. Rep. 1705 In re Bruce SELCRAIG, Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)

Page 789

705 F.2d 789
10 Ed. Law Rep. 965, 9 Media L. Rep. 1705
In re Bruce SELCRAIG, Appellant.
No. 82-1067.
United States Court of Appeals,
Fifth Circuit.
May 27, 1983.

Page 791

Thomas S. Leatherbury, Charles L. Babcock, Dallas, Tex., for appellant.

John J. Watkins, School of Law, Baylor University, Waco, Tex., for amicus curiae Soc. of Professional Journalists, etc.

Frank M. Gilstrap, Arlington, Tex., for Dr. Paul Trautman.

J. Carlisle DeHay, Jr., David W. Townend, John T. Sears, Dallas, Tex., for all defendants.

Appeal from the United States District Court for the Northern District of Texas.

Before WISDOM, RUBIN and TATE, Circuit Judges.

ALVIN B. RUBIN, Circuit Judge:

A discharged school official, seeking to recover compensatory and punitive damages from a school district and two of its officers for publicizing false and stigmatizing charges against him, contends that the

Page 792

two officers disseminated the defamatory charges by secretly imparting them to a newspaper reporter and that, as a result, the reporter made open inquiries that resulted in publication of the charges. The discharged official contends that he was denied due process by the failure of the school district to afford him a hearing on the charges and a chance to prove his innocence. After proceedings to assure that whether the school district's officers were the source of the reporter's information was central to the claim; that circumstantial evidence pointed to a school district officer or employee as the communicant; and that alternative ways of confirming that hypothesis had been exhausted, the district court ordered that the journalist testify in camera and there respond to narrowly limited questions directed only to ascertaining whether a school district officer was the source of his information. Upon his refusal to do so, the court cited the reporter for civil contempt. The reporter appeals, invoking the journalist's qualified privilege under the first amendment not to reveal his confidential sources. Despite the care taken by the district court, we find that the necessity of obtaining the information was not yet established and the reporter's qualified privilege, therefore, not yet overcome. We, therefore, vacate the contempt decree.


We have recognized that the first amendment shields a reporter from being required to disclose the identity of persons who have imparted information to him in confidence. Miller v. Transamerican Press, 621 F.2d 721 (5th Cir.), modified on rehearing, 628 F.2d 932 (5th Cir.1980), cert. denied, 450 U.S. 1041, 101 S.Ct. 1759, 68 L.Ed.2d 238 (1981). Our course was dictated by our careful reading of the plurality and concurring opinions in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). The privilege, we held, is not absolute, but qualified. In libel cases, it can be overcome, but only if the party who seeks disclosure of the identity of a confidential informant establishes by substantial evidence that the statement attributed to the informant was published and is both factually untrue and defamatory; that reasonable efforts have been made to learn the identity of the reporter's informant by alternative means; that no other reasonable means is available; and that knowledge of the identity of the informant is necessary to proper preparation and presentation of the case. Miller, 628 F.2d at 932. Determining the relevance of the confidential informant's identity and the need for its disclosure in this Sec. 1983 action requires us to review the parties' allegations and the information developed in discovery proceedings. No trial having yet been held and no summary judgment on these issues having yet been granted, the accuracy of these factual allegations is untested.

Dr. Paul Trautman, a professional school administrator, was employed by the Dallas Independent School District (DISD) under a one-year contract. During the year, he was appointed Acting Assistant Superintendent for Support Services to replace an employee suspended for alleged misuse of funds. Soon after his appointment, a DISD custodial employee, Anita Horton, reported derogatory information about Trautman.

Bruce Selcraig, then education reporter for the Dallas Morning News (the News ), somehow learned of Horton's report. He interviewed DISD Superintendent Linus Wright and another DISD officer, Robby Collins, in Wright's office. These officers confirmed some of the information about which Selcraig inquired. Selcraig also telephoned Trautman to get Trautman's reactions to the allegations. Trautman testified in a deposition that he first learned of the charges against him from Selcraig's phone call, and then categorically denied them. He also testified that, in this conversation, he asked where Selcraig had gotten his information, and that Selcraig said it came from "two high-placed administrators."

On October 4, 1979, the News published an article by Selcraig giving a detailed account of the allegations about Trautman and quoting his denial. The article reported that DISD had forwarded an affidavit

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executed by Horton to the local district attorney. It also stated that Superintendent Wright had asked Trautman to take a polygraph test, that Trautman had not yet responded to the request, that Wright declined to comment on the specifics of the investigation, and that Collins declined to comment on the case. In addition to relying on the Horton affidavit and interviews with Trautman, Wright, Collins, and others the article attributed information to "sources close to the investigation" and to "individuals familiar with the district's internal investigations." That afternoon the Dallas Times Herald (the Herald ) published an article on the Trautman story. As the controversy continued, the allegations against Trautman reappeared in news articles that reported attributed statements of DISD officials.

On October 6, 1979, Superintendent Wright placed Trautman on administrative leave with pay until the investigation of his activity was completed. Three months later Trautman still had not been restored to duty. On January 11, 1980, Trautman wrote to Wright, offering to resign when his contract ended on August 31, 1980. Wright responded with a letter stating that he was recommending Trautman's immediate termination and advising Trautman of his right to appeal termination. On January 24, 1980, Trautman made written demand on DISD for a due process hearing so that he would have a chance to clear his name. He contends that he was informed a hearing would be accorded him, but none was scheduled. In June another DISD official, John Santillo, solicited a resolution of the matter. Santillo and Trautman agreed that DISD would provide Trautman with letters of recommendation and acknowledgments of his good character and capable performance of his duties. In return, Trautman would waive the anticipated due process hearing and would resign.

Trautman resigned effective July 1, two months before the end of his contract term, withdrawing his demand for a hearing. He now contends that his resignation was procured by fraud: DISD did not intend to keep its deal, and never did. Seeking to set aside his resignation and to obtain damages, he sues DISD; the members of its Board of Trustees in their official capacities; and Wright and Santillo in both their individual and official capacities. Trautman's complaint alleges that the defendants deprived him of substantive due process by invading his constitutionally protected liberty interest when they "caused to be made public in an official and/or intentional way, false and stigmatizing allegations against him." This, he contends, was arbitrary and capricious state action. He also contends that he was deprived of his liberty interest by the failure and refusal of the defendants to provide him with a due process hearing "prior or subsequent to such deprivation" and by the defendants' fraudulent inducement of his resignation. Last, he contends that, in violation of his agreement with Santillo, Wright and Santillo publicly disseminated additional stigmatizing allegations against him after his resignation without affording him a name-clearing hearing. He admits, however, that he did not request any such hearing after he resigned.

While Trautman alleges that his constitutionally protected property rights were also invaded by these actions, he does not contend that Selcraig's testimony is relevant to his property-deprivation claims. We focus, therefore, only on the claims based on damage to his liberty interest, that is his reputation, by the stigmatizing charges made without granting him a name-clearing hearing. As we have noted, these are two-fold: denial of substantive due process by arbitrary action and denial of procedural due process by failure to hold a hearing. Trautman contends that identification of Selcraig's sources 1 is essential because he has a

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right to exemplary or punitive damages if the publication was malicious 2 and the making of a clandestine communication to Selcraig would demonstrate such an intent.

During discovery, Trautman subpoenaed five reporters whose bylines had appeared on articles concerning him published in the News and the Herald. The subpoenas directed the reporters to appear for depositions and to produce all notes on which they relied in writing articles about Trautman. Selcraig was among the reporters subpoenaed. At his deposition, Selcraig confirmed that, in an interview with Wright and Collins, these two made statements to him on which he based, at least in part, the News article that broke the story about Trautman. Selcraig declined, however, to identify the confidential sources who had given him the initial information about Horton's report and the other information that launched his open inquiries to Wright and Collins. He claimed the qualified reporter's privilege recognized in Miller.

Trautman took depositions from...

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    • University of Pennsylvania Law Review Vol. 154 No. 1, November 2005
    • 1 Noviembre 2005
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