Tofani v. State

• Decision Date: 09 May 1983
• Docket Number: S,No. 7,7
• Citation: 465 A.2d 413,297 Md. 165
• Parties: , 9 Media L. Rep. 2193 Loretta TOFANI v. STATE of Maryland. ept. Term 1983. . Order
• Court: Maryland Court of Appeals

Page 165

297 Md. 165

465 A.2d 413, 9 Media L. Rep. 2193

Loretta TOFANI v. STATE of Maryland.

No. 7, Sept. Term 1983.

Court of Appeals of Maryland.

Order May 9, 1983.

Opinion Sept. 16, 1983.

Kevin T. Baine, Washington, D.C. (David E. Kendall, Steven A. Steinbach and Williams & Connolly, Washington, D.C., and David A. Levin and O'Malley, Miles, Farrington & McCarthy, Landover, on the brief), for appellant

Douglas D. Connah, Jr., Craig E. Smith, G. Stewart Webb, Jr. and Venable, Baetjer & Howard, Baltimore, on the brief, amicus curiae, for A.S. Abell Pub. Co.

Kathleen Howard Meredith, Asst. Atty. Gen., Baltimore (Stephen H. Sachs, Atty. Gen., Baltimore, Arthur A. Marshall, Jr., State's Atty., and Robert C. Bonsib, Asst. State's Atty., Upper Marlboro, on the brief), for appellee.

Argued before MURPHY, C.J., and SMITH, ELDRIDGE, COLE, DAVIDSON, RODOWSKY and COUCH, JJ.

ORDER

PER CURIAM.

For reasons to be stated in an opinion later to be filed, it is this 9th day of May, 1983

ORDERED, by the Court of Appeals of Maryland, that the judgment of the Circuit Court for Prince George's County be, and it is hereby, affirmed with costs; and it is further

ORDERED that the mandate shall issue forthwith.

For reasons to be stated in an opinion later to be filed, Judges Eldridge and Davidson would reverse the judgment of the Circuit Court for Prince George's County.

OPINION

MURPHY, Chief Judge.

The issue presented in this case is whether a newspaper reporter may be compelled, over asserted First Amendment and Maryland shield law privileges, to testify before a grand jury where sources of the information sought have previously been disclosed in articles published by the reporter in the newspaper. By per curiam order dated May 9, 1983, we resolved the issue in the affirmative. We now give our reasons for that determination.

Loretta Tofani is a reporter for the Washington Post. As a result of extensive interviews conducted with a number of persons, including jail inmates, former detainees, guards, officials and judges, Tofani published a three-part series in the Post on September 26-28, 1982. The series was entitled "Rape in the County Jail: Prince George's Hidden Horror." In graphic detail, the articles described twelve incidents of "male rape" and sexual assault in the county jail. Although Tofani did not personally witness any of the criminal activities described, she was given permission by both victims and assailants to identify them by name in her articles, which she did. As a result of the series, much public attention was focused on what had previously been a little known problem.

On September 29, 1982, the regular term of the April 1982 Prince George's County Grand Jury was extended to investigate the alleged crimes. On November 1, 1982, the grand jury directed Tofani to appear before it as a witness, to be questioned about the authorship and accuracy of the published articles and, as to certain of the assailants, to verify the time, place, and substance of the reported conversations; and also to ascertain whether the conversations were memorialized or witnessed by others. Tofani moved to quash the summons, relying upon the Maryland shield law, Maryland Code (1980 Repl.Vol.), § 9-112 of the Courts and Judicial Proceedings Article, which provides:

"A person engaged in, connected with, or employed on a newspaper or journal or for any radio or television station may not be compelled to disclose, in any legal proceeding or trial or before any committee of the legislature or elsewhere, the source of any news or information that was obtained by the person for purposes of publication in a newspaper or journal or for purposes of dissemination by a radio or television station where the person is engaged, connected with or employed."

Tofani also sought to quash the summons on the ground that, as a news reporter, she possessed a qualified First Amendment privilege not to testify before the grand jury.

The court (Ahalt, J.) denied the motion to quash. Although noting that the shield law made a reporter's sources privileged even without a promise of confidentiality, the court found that Tofani had waived the law's protection by publishing the names of her sources in the newspaper. Further, the court found no First Amendment newsgatherer's privilege before a grand jury, relying on the Supreme Court's decision in the consolidated cases reported as Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972). The court entered final judgment on January 12, 1983, directing Tofani to appear before the grand jury. The judgment was stayed pending final disposition of Tofani's appeal. We granted certiorari prior to consideration of the appeal by the Court of Special Appeals to resolve the questions presented in the case. Maryland Shield Law

In 1896, Maryland became the first State to enact a "shield law," a statutory privilege which allows a newsgatherer to decline to reveal sources of information. The statute was prompted by a specific event: in early 1896, John T. Morris, a Baltimore Sun reporter, published an article suggesting that certain elected officials and policemen were on the payrolls of illegal gambling establishments. His article contained information practically identical to testimony received earlier by a grand jury investigating such corruption. Suspecting a leak, the grand jury summoned Morris and demanded to know his source. When he refused, he was imprisoned; he was released when the grand jury's term expired some five days later. The Journalists' Club, alarmed at the prospect of reporters having to choose between freedom and revealing the names of confidential sources, persuaded the General Assembly to enact protective legislation. See ch. 249 of the Acts of 1896, and B. Bortz & L. Bortz, "Pressing" Out The Wrinkles In Maryland's Shield Law For Journalists, 8 U.Balt.L.Rev. 461 (1979). ¹

Although Maryland's shield law has served as a model for other states which have enacted such laws, case law interpreting the statute has been sparse, especially considering its eighty-seven year history. In State v. Sheridan, 248 Md. 320, 236 A.2d 18 (1967), an investigative reporter for a national broadcast network was subpoenaed to testify before a Montgomery County grand jury and asked to reveal the details of his conversation with a source. Although Sheridan freely admitted the identity of his source to the grand jury, he asserted a "newspaperman's privilege" not to testify as to the information obtained, which the trial judge sustained. On appeal, we concluded that the issue was moot, since the grand jury's term had expired. We nevertheless said in dictum:

"Although [the trial judge] found as a fact, entirely justifiably we think, that Sheridan 'obtained certain information in the form of a conversation with Mr. Patrick * * * [and] that he divulged the source of the conversation to the Grand Jury,' he sustained Sheridan's claim that his 'newspaperman's privilege' of never violating a confidence allowed him to remain silent as to the details of the information Patrick had given him, and dismissed the petition, somewhat inexplicably to us, since the statute makes inviolate only 'the source of any news or information' and not the 'news or information' itself." Id. at 321-22, 236 A.2d at 19.

The Maryland shield law was next considered in Lightman v. State, 15 Md.App. 713, 294 A.2d 149, aff'd per curiam, 266 Md. 550, 295 A.2d 212 (1972), cert. denied, 411 U.S. 951, 93 S.Ct. 1922, 36 L.Ed.2d 414 (1973). In that case, Lightman, a reporter for the Baltimore Evening Sun, was summoned before a Worcester County Grand Jury to testify concerning illegal drug activities in Ocean City which, according to his published article, he had personally witnessed. Questioned as to the location of these illegal activities, Lightman refused to answer on the ground that such information would lead to disclosure of his sources in violation of the protection afforded by the shield law. He was cited for contempt and appealed. The Court of Special Appeals noted that, at common law, neither the reporter's source nor the information obtained was privileged. After discussing cases construing similar statutes in other jurisdictions, the court concluded that a promise of confidentiality was not necessary under the Maryland shield law to allow a newsman to protect his sources:

"The statute, on its face, does not purport to protect a newsman from disclosing only such sources of news or information published by him that was received in the course of a confidential newsman-informant relationship. On the contrary while the Legislature may have enacted the statute with the primary purpose in mind of protecting the identity of newsmen's confidential sources, we think the statutory privilege broad enough to encompass any source of news or information, without regard to whether the source gave his information in confidence or not. Consequently, it is for the newsman to determine whether he will disclose the 'source' of his news or information, and such disclosure cannot be compelled by requiring that he answer questions aimed, directly or indirectly, toward ascertaining the source's identity."

Id. at 724-25, 294 A.2d at 156 (emphasis in original).

The court concluded that under the facts of the case Lightman was not protected by the shield law:

"Where a newsman, by dint of his own investigative efforts, personally observes conduct constituting the commission of criminal activities by persons at a particular location, the newsman, and not the persons observed, is the 'source' of the news or information in the sense contemplated by the statute. To conclude otherwise in such circumstances would be to insulate the news itself from disclosure and not merely the source, a result plainly at odds with the Maryland law espoused in dictum in Sheridan. We think Sheridan correctly interprets the Maryland statute, particularly since, being in...