Looking at it, however, from a broader point of view, the privilege has never gained general acceptance either at common law or in the United States. In the period from 1898 to the present, after two press campaigns for its adoption, only 12 States have adopted it. An additional 12 States appear to have considered and rejected it, see Albany Law Review (vol. 14, p. 19, note 13). (4) Finally the proposed privilege does not meet this condition either, since the communication itself is disclosed, only the source of the information remaining undisclosed. Thus it is evident that the proposed privilege does not meet any of the conditions which Wigmore indicates should be met before a privilege is granted. VI. PUBLIC BENEFIT VERSUS DETRIMENT TO ADMINISTRATION OF JUSTICE The proponents of the newsmen's privilege argue that although the privilege does not meet all the legal requirements nor fulfill the conditions laid down by Wigmore, nevertheless the public benefit which would inure from the privilege would far outweigh any detriment to the administration of justice. Opponents of the privilege point to the time-honored and traditional posture of the law on exceptions to the duty to testify. They argue that the demand for such a privilege is a mere "prestige" matter; that it is not necessary and in fact would be harmful to the public interest. 1. THE CASE FOR THE "PROS" The sponsor of several of the newsmen's privilege bills in a State legislature, phrases the issue thus (13 Albany Law Review 6): There are but two basic questions that need answering: (1) Is the protection of the source of information vital to the free press? (2) Is the protection of the source of information vital in the public interest? In answering those questions he contends (13 Albany Law Review 8-9): 1. It is vital that newsmen expose waste and corruption in public office without fear of contempt citations, fines, or jail sentences. A. In practically every case where a newsman is required in court to reveal the source of his information he has been performing a public service by revealing the lack of enforcement of vice or gambling laws. 2. The newsman is a guardian of the public interest, the conscience of our legislators, the public's independent auditor, the ferret of dereliction of public duty. A. Newsmen have fought corrupt judges, bungling politicians, black marketeers and stealthy saboteurs of democracy, through the antiseptic power of exposure. 3. The operation of our free press, if we want it to be more than a mere compendium of official propaganda and releases, is dependent upon protecting informants. A. If they are not protected the sources of stories will dry up. 4. Fears of district attorneys that such privilege might interfere with their tracking down criminals are groundless. A. Law enforcement officials are better trained and equipped than a reporter whose only equipment is a "nose for news." B. A survey of the States which recognize such privilege indicates conclusively that law enforcement officers believe such statutes have in no way interfered with law enforcement. 5. The proposal merely gives legal recognition to a code of ethics that has been in effect for centuries-newsmen have traditionally preferred jail to being forced to reveal a confidence. ["That newspapermen shall refuse to reveal confidences or disclose sources of confidential information in court or before judicial or investigating bodies, and that the newspapermen's duty to keep confidences shall include those he shared with one employer after he has changed his employment." Seldes, Freedom of the Press, 371 (Code of ethics adopted by American Newspaper Guild 5)]. 6. The fact that lawyers, etc., are subject to some control, cannot publish information, and therefore cannot do as much harm as reporters, seems irrelevant since the issue is whether such privilege is needed and in the public interest. A. That the privilege may not be analagous to that of lawyers, etc., is no argument against it. 2. THE CASE FOR THE "CONS" In general opposition to the position taken by advocates of the newsmen's privilege, its opponents argue: 1. The contention that a denial of immunity from compulsory disclosure will destroy the source of news is questionable for information acquired from confidential sources is but a minor source of the great fountain of news available to newspapers (45 Yale Law Journal 360). A. Moreover such information can often be gathered despite the fact that communications between newsmen and their informants remain unprivileged. B. The need for granting the privilege to newsmen is lessened by the fact of the existing privilege between government and informer. (See 8 Wigmore 751.) 2. The Association of the Bar of the City of New York, Committee on State Legislation in reporting on several bills for such a privilege points out (as quoted in 8 Wigmore 539): A. The proposed privilege does not meet any of the four fundamental conditions (see above). B. It does not prevent disclosure of the communication which is the purpose of the privilege but merely prevents disclosure of the source of the communication. It encourages disclosure of the information instead of preventing it. 3. The question immediately arises as to whether the privilege is actually for the protection of the reporter or the informant. Such a privilege, personal to the reporter, could certanly not be justified as serving the general public good if he were allowed to disclose his source for his own benefit, i.e., in mitigation of damages for libel and slander, etc. A. Physicians and lawyers are licensed by the State, and their professional activities are carefully scrutinized by various organizations of their own members. Certainly in the case of clergymen and priests such scrutiny is not warranted or necessary. On the other hand, the nebulous activities of some newsmen are only restricted by the limits of their own zeal or that of their employers. The protection of innocent persons from slander and libel by the unscrupulous newsmen seems more compelling in the public interest than the protection of equally unscrupulous informants (14 Albany Law Review 17-18). B. When the information procured by the reporter was never intended for publication, it necessarily follows that neither the reporter in receiving it, nor his informant in disclosing it had imagined that the reporter was exercising his supposed function of keeping the public enlightened, and therefore the reason for privilege would not be present (14 Albany Law Review 19). The following items have been published respecting the question: 1936 LAW REVIEWS Brooklyn Law Review, volume 5, pages 215-216. University of Chicago Law Review, volume 3, pages 680–681. University of Pennsylvania Law Review, volume 84, page 798. 67-938-664 1949 1950 1951 1952 1956 1957 1959 1960 1961 1962 1963 1964 1940 1947 1950 1956 Albany Law Review, volume 13, No. 2, pages 1-10. Albany Law Review, volume 14, No. 1, pages 16-21. Arkansas Law Review, volume 5, pages 1, 14. Vanderbilt Law Review, volume 5, pages 601-603. Maryland Law Review, volume 16, pages 353-354. Arkansas Law Review, volume 11, pages 117, 126. Northwestern University Law Review, volume 54, page 243. Ohio State Law Journal, volume 20, page 382. Stanford Law Review, volume 11, page 541. Cleveland-Marshall Law Review, volume 9, page 311. California: Journal of the Assembly, regular session, volume 1 of the appendix, "Privilege of News Sources"; Report of assembly Interim Committee on Governmental Efficiency and Economy, 1959-61, volume 8, page 23, No. 6. Oklahoma Law Review, volume 15, page 453. Notre Dame Lawyer, volume 39, page 489. Pennsylvania Bar Association Quarterly, volume 35, page 197. OTHER MATERIAL Arthur & Crosman: "The Law of Newspapers," pages 257-259. Chafee: "Government and Mass Communications," voume 11, pages 495-499. Steigleman: "The Newspaperman and the Law," pages 196-209. Thayer: "Legal Control of the Press," pages 361-362. 3. THE MIDDLE GROUND While proponents insist upon an unqualified "Yes" to the proposed privilege and opponents equally vehemently insist upon an unqualified "No," two sources have proposed a "Yes, but." The Law Revision Commission of the State of New York in its "Report and Study Relating to Problems Involved in Conferring Upon Newspapermen a Privilege Which Would Legally Protect Them From Divulging Sources of Information Given to Them" (Legis. Doc. No. 65(A), 1949, p. 3), reported: * * * (1) that an unconditional privilege should not, in the public interest, be granted to newsmen to refuse to divulge the sources of information on which news stories are based; (2) that a privilege, with safeguards essential to the protection of the public interest, may safely be granted. It proposed (pp. 6–7): * * * 2. No reporter shall be compelled to disclose, in any action or proceeding, civil or criminal, in any court of this State, whether of record or not of record, or before any referee or other official thereof; or before any grand or petit jury, or at any coroner's inquest, or before any other judicial or quasi-judicial tribunal or any officer thereof; or before the State senate or assembly or any committee, member, officer or employee thereof, or any commission created thereby, or before any State, county, municipal or other body or officer, the source of any information procured or obtained by him, while he was a reporter, from another person. 3. The privilege conferred by subdivision two of this section shall also apply to any person who was formerly a reporter as to information procured or obtained by him while he was a reporter. 4. In any case where a reporter claims the privilege conferred by this section, the body, officer, person, or party seeking the information may apply to the Supreme Court for an order divesting the reporter of the privilege. Such application shall be made in the judicial district in which the reporter resides. In case the reporter does not reside within the State, the application shall be made in the judicial district where he has an office or other place of employment. If he has neither residence nor place of employment in the State, the application shall be made in the judicial district where the hearing, action, or proceeding in which the information is sought is pending. Application for such an order shall be made by verified petition, setting forth the reasons why the disclosure is essential to the protection of the public interest and on due notice to the reporter, including the service of all papers upon which the application is made. The order shall be granted only when the court, after hearing the parties, shall find that disclosure is essential to the protection of the public interest. Any such order shall be appealable under the provisions of article 41 of the Civil Practice Act and shall be subject to stay as therein provided. 5. When any reporter shall have claimed the privilege conferred by this section and the reporter shall not have been divested of such privilege by order of the Supreme Court, neither he nor the news organization by which he is employed, or of which he is an officer, associate, partner, or proprietor, shall thereafter be permitted to plead or prove the sources of information so withheld, unless the informant consents in writing, as circumstances in mitigation of damages in an action for libel or slander based on the publication of the matter as to which the sources of information were so withheld. Along the same line, i.e., a qualified privilege, W. D. Lorensen in the Nebraska Law Review, volume 35, pages 562-580 (1956) argues (p. 562) that neither the judicial nor the existing statutory rules represent the best answer in view of the policy questions involved. The current rules which apply to a journalist's source privilege are too inflexible (p. 563). On the other hand the existing statutes grant too broad a privilege (p. 564). That the public benefits from a free flow of news needs no argument; where the only source for it must be undisclosed the public benefits; further, where corrective action can be and is taken without resort to the newsman's source, the public benefits and the relationship should then be protected (pp. 566-567). When there is no public benefit from the newsman's activities, however, there should be no privilege or when the public detriment is greater by allowing the privilege than by protecting the relationship there should be no privilege (pp. 573-577). Lorensen would authorize a qualified privilege along these lines (p. 580): Subject to the following two exceptions, no person engaged in the work of gathering, writing, publishing, or disseminating news for any newspaper, periodical, press association, or radio or television station, shall be held in contempt by any authority for refusing to divulge the source of information which such person has accepted in confidence and caused to be published or disseminated: Exception 1. This privilege shall not apply where the information gained by such person concerned the details of any proceeding which was required to be secret under the laws of this State or of the Federal Government. Exception 2. This privilege shall not apply where it shall be shown conclusively to the judge of the district court, in which district the proceeding is taking place, that (a) all plausible sources of information have been exhausted, and (b) the pro ceeding or inquiry cannot be concluded without taking testimony from the source or sources sought to be kept secret under this statute. VII. THE NEWSMEN'S PRIVILEGE BEFORE THE COURTS The cases which follow, commonly cited and referred to in published articles, will indicate the course of judicial decision respecting the proposed privilege. 1. REPORTED CASES People ex rel. Phelps v. Francher (1874) (2 Hun. (N.Y.) 226, 4 Thomp. and C. 467:) In this case a newspaper editor, called as a witness before a grand jury, refused to disclose the name of the author of an allegedly libelous article entitled "Brooklyn Ring's Method" appearing in the paper, on the ground that to do so would violate an office regulation of the newspaper. This would not seem technically to have been an assertion of a newsman's privilege; such privilege cannot be based upon office regulations of newspapers which might be changed at will by editors or owners. Pledger v. State (1886) (77 Ga. 242: 2 S. E. 320): Pledger, in a criminal prosecution for libel, was found guilty of writing a newspaper article charging a real estate agent with objecting to a Negro tenant, who was thereby compelled to sell out his business at a loss, and of advising colored people not to patronize the agent but to leave the "old skunk to himself to stink himself to death." During the course of the trial when Burnett, the publisher of the newspaper, who had been indicted for the same offense, refused to testify in the case or give the name of the author of the article, the court said: *** [H]e was to be considered the author himself, and was liable to indictment and punishment as such, and might, moreover, be punished for contempt of the court, as any other witness refusing to testify. The court went on to indicate that he could have refused to answer any question tending to incriminate him and then stated: He made no such question, and consequently it was not passed upon by the presiding judge; but apprehending in advance that he might be placed in a perilous position, he refused stubbornly, before the exigency had arisen, to testify at all. People v. Durant (1897) (116 Cal. 179; 48 Pac. 75): This was a situation in which the defendant, accused of murder, was asked by the prosecution if he had not made a statement to a Miss Cunningham, a reporter, that he had seen the murdered girl upon the second landing and that she had been murdered there. The defendant's counsel argued that the communication, if made, was privileged. The court ruled that considering that Miss Cunningham was a newspaper_reporter and was not shown to have been the wife or to have stood to the defendant in any other relation of legal confidence, the claim scarcely merited comment. Ex parte Lawrence et al. (1897), 116 Cal. 298, 48 Pac. 124: The court, in a per curiam opinion, stated that the State senate was investigating the conduct of one of its own members under published charges of bribery. The names of the members concerned had not been published in the news articles. Upon the refusal of the editor or reporter to reveal the names of those from whom they had received information and its nature, they were committed for contempt. The |