WBAI-FM v. Proskin

• Decision Date: 07 June 1973
• Docket Number: WBAI-F,A
• Parties: In the Matter ofppellant, v. Arnold W. PROSKIN, as District Attorney of Albany County, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 393

344 N.Y.S.2d 393

42 A.D.2d 5

In the Matter of WBAI-FM, Appellant, v. Arnold W. PROSKIN, as District Attorney of Albany County, Respondent.

Supreme Court, Appellate Division, Third Department.

June 7, 1973.

Rhonda Copelon Schoenbrod, New York City (co-counsel with Peter Weiss, New York City), for appellant.

Arnold Proskin, Dist. Atty. of Albany County, Albany (John A. Williamson, Jr., Albany, of counsel), for respondent.

Jeremiah S. Gutman, New York City, for New York Civil Liberties Union, Office of Communication of United Church of Christ, John Leonard, and 65 other Persons, amici curiae.

Before HERLIHY, P.J., and GREENBLOTT, COOKE, MAIN and REYNOLDS, JJ.

PER CURIAM.

This is an appeal from an order of the County Court of Albany County, entered December 10, 1971, 68 Misc.2d 355, 326 N.Y.S.2d 434, which denied appellant's motion to quash a subpoena Duces tecum.

On September 17, 1971 appellant, a radio station located in New York City, received an anonymous telephone call. The caller stated that a letter, advising of an imminent bomb threat, had been placed in a nearby phone booth. An employee of the station, a newscaster, proceeded to the designated spot and found the letter which stated that the 'Weather Underground' was about to bomb the offices of the Commissioner of Correctional Services in the Twin Towers Office Building in Albany. The police were notified, the letter was read over the air, and its contents later released to all interested news agencies. A bomb did explode as threatened, resulting in extensive property damage.

On October 11, 1971 appellant was served with a subpoena Duces tecum which requested the production of the letter. Appellant, pursuant to CPLR 2304, instituted this proceeding to quash the subpoena claiming that it was privileged under the provisions of section 79--h of the Civil Rights Law. The issue is whether the letter in question is a privileged news source within the meaning of subdivision (b) of section 79--h of the Civil Rights Law.

We agree with that portion of the County Court's decision which held that the letter was outside the scope of the privilege since it was not a confidential communication. We find no merit in appellant's contention that, since section 79--h does not explicitly state that the privilege applies only to confidential communications, no requirement of confidentiality exists. When section 79--h was signed into law by Governor Rockefeller, he cited the 'real and imminent threat' of requiring 'the disclosure of information obtained by reporters in confidence'. (McKinney's Session Laws of New York, 1970, p. 3112.) Furthermore, the statute has been interpreted to afford the privilege only where the information was received under a cloak of confidentiality. (See Wolf (Daniel) (In re People), 39 A.D.2d 864, 333 N.Y.S.2d 299.)

Historically, each of the several privileges recognized by our statutes rests upon a confidential relationship. We recognize that these privileges are exceptions to the general rule which requires disclosure to an authorized governmental body and must therefore be strictly construed. Confidentiality is here lacking. The author of the letter took pains to conceal his identity by signing the letter 'Weather Underground', and to insure that appellant would obtain the letter without learning its author's identity. Clearly, he was not willing to rely upon appellant to shield his identity from the authorities. He refused to establish a confidential relationship with appellant but preferred to talk with anyone who answered the phone.

Moreover, since the letter was left in a public telephone booth where it might have been found by anyone and turned over to the police, it is clear that the author could not have been relying upon appellant to withhold the letter itself.

Finally, appellant urges that the District Attorney has not demonstrated a need for the subpoena, wherefore it should be quashed. We disagree. The letter is sought as an aid to investigation of a serious crime, which is a sufficient basis for requiring it to be turned over to the authorities where not barred by statutory privilege.

The order should be affirmed, with costs.

Order affirmed, with costs.

HERLIHY, P.J., and GREENBLOTT, MAIN and REYNOLDS, JJ., concur.

COOKE, J., dissents and votes to reverse in a separate opinion.

COOKE, Justice (dissenting).

I dissent and vote for reversal. Plaintiff's motion to quash the subpoena Duces tecum should be granted.

Subdivision (b) of section 79--h of the Civil Rights Law provides: '* * * no professional journalist or newscaster employed or otherwise associated with any newspaper * * * 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 * * *' (emphasis supplied). Paragraph (8) of subdivision (a) of said section defines 'news' as '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.' The previous paragraph states the meaning of 'newscaster' as 'a person who, for gain or livelihood, is engaged in analyzing, commenting on or broadcasting, news by radio or television transmission.'

Section 79--h is extremely broad in its express terminology. It makes no distinction between actively and passively acquired 'news', and it protects 'any news or the source of any such news coming into his (the professional journalist's or newscaster's) possession in the course of gathering or obtaining news for publication or to be published.' The word 'any' is significant, since it has been defined judicially to mean 'all' and 'every' and the use of the word imports no limitation (Randall v. Bailey, 288 N.Y. 280, 285, 43 N.E.2d 43, 45; In re Estate of Beach (Appraisal), 154 N.Y. 242, 247, 48 N.E. 516, 517; Matter of Singer (State Laundry Co., Inc.), 189 Misc. 150, 151, 70 N.Y.S.2d 550, affd. 273 App.Div. 755, 75 N.Y.S.2d 514; Matter of Schuster's Will, 111 Misc. 534, 538, 181 N.Y.S. 500, 503).

To hold, as did the decision under review, that the statute's protection is available only when the news agency itself initiates the quest for the information would emasculate the purpose of the statute and is erroneous. First, there is no statutory requirement, express or implied, that the news media must affirmatively gather the information in...