State v. Salsbury

• Decision Date: 28 August 1996
• Docket Number: No. 21645,21645
• Parties: , 24 Media L. Rep. 2454 STATE of Idaho, Plaintiff-Respondent, v. Michael SALSBURY, Defendant, and KMVT Broadcasting, a Division of Root Communications, Inc., Defendant-Appellant. . Twin Falls, November 1995 Term
• Court: Idaho Supreme Court

Page 208

924 P.2d 208

129 Idaho 307, 24 Media L. Rep. 2454

STATE of Idaho, Plaintiff-Respondent, v. Michael SALSBURY, Defendant and KMVT Broadcasting, a Division of Root Communications, Inc., Defendant-Appellant.

No. 21645.

Supreme Court of Idaho.

Twin Falls, November 1995 Term.

Aug. 28, 1996.

Rehearing Denied Oct. 4, 1996.

Benoit, Alexander, Sinclair, Harwood & High, Twin Falls, for appellant. Thomas B. High argued.

Alan G. Lance, Attorney General; Myrna A.I. Stahman and Michael S. Gilmore, Deputy Attorneys General, Boise, for respondent. Michael S. Gilmore argued.

SCHROEDER, Justice.

KMVT Broadcasting moved to quash a subpoena duces tecum issued to obtain videotape taken by a KMVT reporter at the scene of a fatal automobile accident. The prosecution sought the videotape for use in criminal prosecution of a newspaper reporter who was charged with resisting and obstructing a police officer. KMVT asserted a privilege under the First Amendment to the United States Constitution and article I, section 9 of the Idaho Constitution. The district court affirmed the magistrate denying the motion to quash. KMVT appeals the decision.

I. BACKGROUND AND PRIOR PROCEEDINGS

On September 28, 1993, personnel from several news organizations in Twin Falls went to the scene of a fatal automobile accident in Jerome County, Idaho. A reporter from KMVT Broadcasting (KMVT) reported upon and videotaped the scene of the accident. Portions of the videotape were broadcast by KMVT.

Michael J. Salsbury, a newspaper reporter for The Twin Falls Times-News who was covering the accident, was arrested at the scene and charged with resisting and obstructing a police officer. The Jerome County Prosecutor's Office obtained a subpoena duces tecum for production of the entirety of the videotape, including the outtakes not broadcast by the station. The videotape had been placed in the trash prior to the service of the subpoena and was retrieved upon the service of the subpoena.

The accident and videotaping took place near a highway that was viewable to the public. The magistrate conducted an in camera inspection of the videotape and determined that Salsbury "is depicted in the videotape on three separate occasions." The magistrate found that the "compelled production of the videotape will not disclose the identity of any confidential sources or confidential information received in a news gathering process." The magistrate also found that requiring production of the nonconfidential and/or unbroadcast videotape in question will have little, if any, chilling effect on the ability of newspersons to gather news or on their editorial process and found that the "matters contained in the videotape are unique and unavailable from other sources."

The decision of the magistrate was affirmed by the district court, which added the following finding of fact:

The court further finds that the intrusion into the news gathering process is so slight that there will be no chilling effect. As the magistrate court noted, sources will not dry up, nor will there be any significant interference with the ability to gather and report the news. The case at bar requires only that KMVT engage in the ministerial duty of locating and providing a tape that contained no confidential materials nor require (sic) confidential sources to be disclosed.

II. STANDARD OF REVIEW

This Court reviews the decision of a magistrate judge independently of a district judge sitting in an appellate capacity, but with "due regard" to the ruling of the district judge. State Dep't of Health & Welfare v. Annen, 126 Idaho 691, 692, 889 P.2d 720, 721 (1995); Ireland v. Ireland, 123 Idaho 955, 957-58, 855 P.2d 40, 42-43 (1993). "We will uphold the magistrate's findings of fact if supported by substantial and competent evidence." Id. at 958, 855 P.2d at 43. "On issues of law, we exercise free review." Annen, Id., (quoting Ausman v. State, 124 Idaho 839, 864 P.2d 1126, 1128 (1993)).

III.

THE VIDEOTAPE IS NOT COVERED BY A PRIVILEGE UNDER EITHER THE U.S. OR IDAHO CONSTITUTIONS.

The law concerning the existence or the extent of a newsperson's privilege has generally focused on situations in which a newsperson has been called upon to reveal confidential sources of information or information known only to the newsperson from news gathering. The present case does not involve that circumstance. The events that occurred and were videotaped took place in a public place and were observable by anyone present. Regardless of the factual differences, the principal United States Supreme Court decision and the cases of this Court must be examined for guidance.

In a plurality opinion in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), the United States Supreme Court addressed the issue of whether requiring newspersons to appear and testify before state or federal grand juries abridged the freedom of speech and press guaranteed by the First Amendment. The testimony at issue involved the revelation of confidential sources of newsgathering information--informants who were under criminal investigations. Branzburg, 408 U.S. 665, 92 S.Ct. 2646.

The plurality opinion stated that "[i]t has generally been held that the First Amendment does not guarantee the press a constitutional right of special access to information not available to the public generally." Id. at 684, 92 S.Ct. at 2658. The Court declined to create a testimonial privilege for newspersons that other citizens do not enjoy:

On the records now before us, we perceive n o basis for holding that the public interest in law enforcement and in ensuring effective grand jury proceedings is insufficient to override the consequential, but uncertain, burden on news gathering that is said to result from insisting that reporters, like other citizens, respond to relevant questions put to them in the course of a valid grand jury investigation or criminal trial.

Id. at 690-91, 92 S.Ct. at 2661.

Justice Powell, who cast the deciding vote creating the majority for the decision, wrote a concurring opinion which recognized that courts may determine whether a privilege exists by applying a balancing test:

The asserted claim to privilege should be judged on its facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct. The balance of these vital constitutional and societal interests on a case-by-case basis accords with the tried and traditional way of adjudicating such questions.

Id. at 710, 92 S.Ct. at 2671 (Powell, J., concurring).

Justice Stewart's dissent declared that the plurality opinion "invites state and federal authorities to undermine the historic independence of the press by attempting to annex the journalistic profession as an investigative arm of government." Id. at 725, 92 S.Ct. at 2671 (Stewart, J., dissenting). Justice Stewart expressed concern over the ability of the press to gather and disseminate news:

A corollary of the right to publish must be the right to gather news. The full flow of information to the public protected by the free-press guarantee would be severely curtailed if no protection whatever were afforded to the process by which news is assembled and disseminated.

Id. at 727, 92 S.Ct. at 2672-73.

In response to the plurality's approach to the newsperson's obligation to appear and testify before a grand jury, Justice Stewart proposed the following test:

[W]hen a reporter is asked to appear before a grand jury and reveal confidences, I would hold that the government must (1) show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; (2) demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and (3) demonstrate a compelling and overriding interest in the information.

Id. at 743, 92 S.Ct. at 2681 (emphasis added) (footnotes omitted).

The three-prong test proposed by Justice Stewart specified that it would be applicable in those cases before a grand jury which seek confidential information acquired by a reporter. The present case does not deal with confidential information.

This case parallels the circumstances dealt with by the United States Supreme Court in Zurcher v. Stanford Daily, 436 U.S. 547, 98 S.Ct. 1970, 56 L.Ed.2d 525 (1978). The Stanford Daily (Daily), a student newspaper at Stanford University, published articles and photographs about a clash between police and student demonstrators. Id. The day after publication the Santa Clara County District Attorney's Office obtained a warrant to search the Daily's offices for photographic evidence of the clash. The search produced only previously published photographs. Id. at 550-51, 98 S.Ct. at 1973-74.

In Zurcher, the Court framed the issue as "whether any significant societal interest would be impaired if the police were generally required to obtain evidence from the press by means of a subpoena rather than a search." Id. at 574, 98 S.Ct. at 1986. The issue of privilege, which was central to the Branzburg decision and to this case, was not asserted. In his dissent, Justice Stewart observed that the parties did not claim that any of the evidence sought was privileged from disclosure. Id. (Stewart, J., dissenting). The Court did not specifically address the existence of a privilege. It is clear, however, that the Court was cognizant of First Amendment implications in the decision:

Neither the Fourth Amendment nor the cases requiring consideration of First Amendment values in issuing search warrants, however, call for imposing the regime ordered by the District Court. Aware of the long struggle between Crown and press and desiring to curb unjustified official intrusions, the Framers took the enormously important step of subjecting searches to the test of reasonableness and to the general rule requiring...