Senear v. Daily Journal American

• Decision Date: 20 October 1980
• Docket Number: No. 7284-6-I,7284-6-I
• Parties: , 6 Media L. Rep. 2070 John A. SENEAR, Respondent, v. The DAILY JOURNAL AMERICAN, a division of The Longview Publishing Company, Petitioner.
• Court: Washington Court of Appeals

Page 454

27 Wn.App. 454

618 P.2d 536, 6 Media L. Rep. 2070

John A. SENEAR, Respondent, v. The DAILY JOURNAL AMERICAN, a division of The Longview Publishing Company, Petitioner.

No. 7284-6-I.

Court of Appeals of Washington, Division 1.

Oct. 20, 1980.

Klingberg & Reitsch, Gerry A. Reitsch, Longview, Davis, Wright, Todd, Riese & Jones, P. Cameron DeVore, Seattle, for petitioner.

Lycette, Diamond & Sylvester, Lyle L. Iverson, Seattle, for respondent.

CALLOW, Chief Judge.

This is an appeal from a superior court order compelling disclosure by a newspaper reporter of the names of confidential news sources. The issue before this court is whether a newsperson's privilege against disclosure of confidential news sources in a civil action for libel is to be found in the First Amendment of the Constitution. While a newspaper's right to publish is firmly established under the First Amendment, left unsettled is whether the First Amendment implicitly guarantees the confidentiality of a newsperson's news sources in the civil context. The existence and extent of a constitutionally based privilege from such disclosure is an issue of first impression in Washington.

John Senear instituted a libel action against the Daily Journal American, a daily newspaper of general circulation, on January 24, 1978. At that time, Senear was the business agent of the Amalgamated Transit Workers Union in King County. The basis of Senear's libel action was a newspaper story published by the Daily Journal American on January 2, 1978. The story told of accusations allegedly made by undisclosed union members that Senear, as the union's business agent, had made a "deal" unfavorable to union members with management and had personally encouraged "sickouts." Senear's complaint alleged that the effect of the story, read as a whole, was to impart to readers the impression that he was disloyal to the local union which he represented, was not fit to be its business representative, and cast doubt upon his integrity. The complaint alleged that the article was published in reckless disregard of the truth and that the newspaper knew, or in the exercise of reasonable care should have known, that the statements were false and would create a false impression. The newspaper's answer to the complaint alleged, among other defenses, that Senear was a "public figure" and that the newspaper made a reasonable investigation of the facts before publication and published the story without malice under a qualified privilege in the belief that the story was true.

In the course of pretrial discovery, Senear served the newspaper with interrogatories which directed the newspaper to disclose the names of union members who furnished certain information for the story. The Daily Journal American refused to answer those interrogatories on the ground that such answer would disclose confidential sources. ¹ Senear moved for an order to compel answers to interrogatories. On January 10, 1979, a superior court judge entered the following order:

ORDERED, ADJUDGED AND DECREED that the answers submitted by defendant fail to answer the Interrogatories propounded and that the matter inquired into is not privileged and the defendant is hereby compelled to wholly answer Plaintiff's First Interrogatories to Defendant.

Discretionary review was granted, and the order compelling answers was stayed pending this court's resolution of the following issues:

1. Is either an absolute or qualified newsperson's privilege against disclosure of confidential news sources in a civil action for libel to be found in the First Amendment of the Constitution?

2. Are the courts or the legislature the proper forum for the creation of a newsperson's privilege against disclosure of confidential news sources?

A number of states provide newspersons a statutory privilege of varying degree, ² but Washington has no such statutory privilege. Neither does the common law recognize a privilege which would support a newsperson's refusal to disclose confidential news sources. United States v. Liddy, 354 F.Supp. 208, 214 (D.D.C.1972). Therefore, the scope of discovery at the trial court was governed by CR 26 and CR 33, which are to be given a broad and liberal construction, McGugart v. Brumback, 77 Wash.2d 441, 463 P.2d 140 (1969), permitting inquiry as to any matter which is or may become relevant to the subject matter involved in the action or which appears reasonably calculated to lead to the discovery of admissible evidence, subject only to the objection of privilege. Bushman v. New Holland Division of Sperry Rand Corp., 83 Wash.2d 429, 518 P.2d 1078 (1974); CR 33(b); CR 26(b)(1).

Petitioner Daily Journal American, supported by Allied Daily Newspapers as amicus curiae, urge us to find in the First Amendment either an absolute or qualified newsperson's privilege against disclosure of news sources in civil cases. They maintain that newspapers frequently rely on persons who, because of their position, have "inside" information of vital public concern and who are willing to provide a newspaper with this information only upon the condition that their identity remain confidential. They maintain that where, as alleged here, the informants hold sensitive and vulnerable positions, forced disclosure of their identities to civil litigants may so endanger their professional career and personal safety that they, and other news sources, will be inhibited from furnishing information in the future-to the detriment of both a free and effective press and the general public. They contend that, at a minimum, a qualified privilege is required to protect this news-gathering process and that such a privilege is to be found in the free press clause of the First Amendment. They point this court to decisions by other state and federal courts which have so held.

Respondent Senear maintains that no absolute or qualified newsperson's privilege is to be found in the First Amendment, and if there is to be such a privilege, it should be for the legislature and not the judiciary to create.

A. Absolute Privilege.

Courts that have considered the issue have unanimously concluded that the First Amendment affords the newsperson no absolute privilege of nondisclosure of confidential news sources-whether it be in the criminal or civil context. In Carey v. Hume, 492 F.2d 631 (D.C.Cir.1974), the court stated at page 639:

We have rejected the only contention made to us by appellant, and that was the pre-Branzburg (Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972)) claim that there either is, or should be, an absolute First Amendment barrier to the compelled disclosure by a newsman of his confidential sources under any circumstances. That was not, in our view, the law before Branzburg, and it is certainly not the law after, in either civil or criminal proceedings.

The First Amendment does not, of itself, create in newspersons an absolute privilege of nondisclosure of sources. See, e. g., Herbert v. Lando, 441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979); Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972); Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977); Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 S.Ct. 2147, 36 L.Ed.2d 686 (1973); Garland v. Torre, 259 F.2d 545 (2d Cir.), cert. denied, 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231 (1958); Caldero v. Tribune Publ. Co., 98 Idaho 288, 562 P.2d 791, cert. denied, 434 U.S. 930, 98 S.Ct. 418, 54 L.Ed.2d 291 (1977). See also Annot., 7 A.L.R.3d 591 (1966).

B. Qualified Privilege.

To say that there is no absolute privilege is not to say there is no privilege or that no heightened standard of necessity and relevance must be met prior to disclosure of a newsperson's confidential sources. Many courts have found in the First Amendment a qualified newsperson's privilege-if indeed "privilege" is the proper term-of nondisclosure in the civil context, albeit expressing that "privilege" in varying ways.

The claim of a qualified newsperson's "privilege" in a civil action, derived from the First Amendment, has met with the most success in federal courts. See Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977); Carey v. Hume, 492 F.2d 631 (D.C.Cir.1974); Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972), cert. denied, 411 U.S. 966, 93 S.Ct. 2147, 36 L.Ed.2d 686 (1973); Citicorp v. Interbank Card Ass'n, 4 Med.L.Rptr. 1429 (S.D.N.Y.1978); In re Consumers Union, 4 Med.L.Rptr. 2119 (S.D.N.Y.1978); Gulliver's Periodicals, Ltd. v. Chas. Levy Cir. Co., 455 F.Supp. 1197 (N.D.Ill.1978); Zerilli v. Bell, 458 F.Supp. 26 (D.D.C.1978); Altemose Constr. Co. v. Building & Constr. Trades Council, 443 F.Supp. 489 (E.D.Pa.1977); Gilbert v. Allied Chem. Corp., 411 F.Supp. 505 (E.D.Va.1976); Apicella v. McNeil Laboratories, Inc., 66 F.R.D. 78 (E.D.N.Y.1975); Loadholtz v. Fields, 389 F.Supp. 1299 (M.D.Fla.1975); Democratic Nat'l Comm. v. McCord, 356 F.Supp. 1394 (D.D.C.1973); Adams v. Associated Press, 46 F.R.D. 439 (S.D.Tex.1969), cert. dismissed, 402 U.S. 901, 91 S.Ct. 1266, 28 L.Ed.2d 642 (1971). See also Anderson v. Nixon, 444 F.Supp. 1195 (D.D.C.1978). Some state courts have also found in the First Amendment a qualified newsperson's "privilege" in the context of civil litigation. See Winegard v. Oxberger, 258 N.W.2d 847 (Iowa 1977), cert. denied, 436 U.S. 905, 98 S.Ct. 2234, 56 L.Ed.2d 402 (1978); Opinion of the Justices, 117 N.H. 386, 373 A.2d 644 (1977); Goldfeld v. Post Publ. Co., 4 Med.L.Rptr. 1167 (Conn.Super.Ct.1978); Connecticut State Bd. of Labor Relations v. Fagin, 33 Conn.Sup. 204, 370 A.2d 1095 (Conn.Super.Ct. 1976); Rancho La Costa, Inc. v. Penthouse Int'l, Ltd., 4 Med.L.Rptr. 1564 (Cal.Super.Ct.1978). ³

The decisions recognize that two compelling interests are at stake: the interest in allowing the press unfettered access to sources of information and the interest in allowing courts and litigants unimpaired...