By Carolyn K. Foley
On Dec. 10, 2013, the New York Court of Appeals resoundingly reaffirmed the important public policy underlying the New York statutory scheme that allows New York journalists to preserve the anonymity of their confidential sources: “[T]here is no principle more fundamental or well-established than the right of a reporter to refuse to divulge a confidential source….New York journalists should not have to consult the law in the jurisdiction where a source is located or where a story ‘breaks’ … in order to determine whether they can issue a binding promise of confidentiality.” In the Matter of James Holmes v. Winter, __ N.E.2d __, 2013 WL 6410422, 2013 N.Y. Slip Op. 08194 at 23, 25 (Dec. 10, 2013). The decision reverses the rulings of a trial court and an intermediate appellate court which had declined to quash a subpoena seeking to compel a New York-based reporter to appear in Colorado to face questions about the identity of her confidential sources.
The specific and—as the majority defined it—narrow issue before the Court was whether a lower court’s decision to issue a subpoena directing the reporter to appear at a judicial proceeding in Colorado – a jurisdiction which offers less than absolute protection to a reporter’s confidential sources – to answer questions about her confidential sources violated New York public policy. The unequivocal answer given to that question was yes: “an order from a New York Court directing a reporter to appear in another state where… there is a substantial likelihood that she will be compelled to identify sources who have been promised confidentiality would offend our strong public policy—a common law, statutory and constitutional tradition that has played significant role in this state becoming the media capital of the country if not the world.” Holmes, Slip Op. at 24.
The subpoena had been issued pursuant to the procedure laid out in N.Y. Criminal Procedure Law 640.10(2) (New York’s codification of the reciprocal Uniform Act to Secure Attendance of Witnesses from Without the State in Criminal Cases) and was sought by James Holmes, the criminal defendant accused of opening gun fire in a crowded movie theater in Aurora, Colorado at a midnight screening of Batman. The subpoena sought information for use in an investigation into the violation of a gag order that the Colorado state judge had issued directing the parties not to disclose information about the contents of a journal that Holmes had sent to a university psychologist before the shooting. The violation of the gag order became apparent after Fox News reporter Jana Winter published a story that included details about the journal and cited confidential law enforcement sources. Holmes claimed that the law enforcement leaks had damaged his ability to get a fair trial and sought sanctions.
An investigation ensued and 14 law enforcement officials testified that they had not been the source for Winter’s story. Holmes then asked the Colorado court to issue a subpoena to Winter. The Colorado court issued a certificate finding that Winter was the only witness that could provide the names of the law enforcement agents who had provided the information to her and that she was therefore a material witness to the pending criminal prosecution—the standard for issuing subpoenas under the Uniform Act to Secure Attendance. Holmes presented the certificate to a New York trial court and sought the issuance of a subpoena compelling Winter to testify in Colorado. The trial court issued the subpoena finding that Winter was a material and necessary witness and that the subpoena would not impose undue hardship as all her travel expenses would be paid. The court declined to consider Winter’s claim of privilege, finding such a claim beyond the scope of the CPL 640.10(2) application. An intermediate appellate court affirmed, adopting the trial court’s view that the only issues to be considered on a CPL 640.10(2) application are whether the witness sought is material and necessary and whether compelling her to testify would result in undue hardship.
The Court of Appeals’ prefaces its decision with a discussion of the sources of the New York public policy favoring empowering reporters to honor the commitments of confidentiality they make to their sources. Beginning with New York’s common law, the Court cites the colonial-era decision of a New York jury to acquit the printer John Peter Zenger of treason for publication of an anonymous tract critical of the government, despite his refusal to identify the authors of the tract. The Court claims the Zenger acquittal as the first recognition of the important connection between the ability to maintain the anonymity of sources and the operation of a free press. Next, the Court of Appeals reminds us that the New York Constitution’s recognition of the free speech right was intentionally drawn to provide more broad protection than that of the First Amendment. Finally, the Court reviews the legislative history surrounding N.Y. Civil Rights Law 79-h (New York’s Reporter’s Shield Statute), highlighting the statements that New York’s then-Governor Nelson Rockefeller included in the Bill Jacket Memorandum expounding upon the relationship between a reporter’s ability to protect his or her confidential sources and the vitality of a representative democracy: “[A] representative democracy, such as ours, cannot exist unless there is a free press both willing and able to keep the public informed of all the news …. [The] threat to a news[person] of being charged with contempt and being imprisoned for failing to disclose his [or her] ability to gather vital information” directly undermines the press’ ability to keep the public informed (quoting Bill Jacket Memorandum).
Given this strongly articulated and often repeated public policy and the fact that the Colorado court had made it clear that the only purpose for requiring Winter to appear in Colorado was to compel her to reveal the identities of her confidential sources, the Court of Appeals had no trouble finding that the issuance of the subpoena offended New York’s public policy. While acknowledging the validity of the Colorado court’s goal of identifying leakers so that they might be sanctioned and possibly prosecuted for perjury, the Court of Appeals also noted that reprisals of this type “close mouths, caus[e] news sources to dry up and inhibit the future investigative efforts of reporters” which is the “precisely the harm” that New York’s Shield Law sought to avoid when it provided absolute protection for confidential sources “without any qualifying language.” Holmes, Slip Op. at 22. Citing its earlier decision in Beach v. Shanely, 62 N.Y.2d 241, (N.Y. 1984), the Court explained that even though such a policy “may thwart a grand jury investigation, the statute permits a reporter to retain his or her information, even when the act of divulging the information was itself criminal conduct.” Id., Slip Op. at 14 (emphasis added).
This ruling is welcome news for reporters especially since it stands in stark contrast to this year’s Fourth Circuit’s decision in U.S. v. Sterling, 724 F.3d 482 (4th Cir. 2013) which espoused the notion that the reporter is, by definition, a material witness to the case against a defendant accused of illegally leaking classified information: “[The reporter] is the only eyewitness to the crime. [The reporter] is inextricably involved in it. Without [the reporter], the alleged crime would not have occurred, since [the reporter] was the recipient of illegally-disclosed, classified information.… [The reporter] is the only witness who can specify the classified information that he received and the source or sources from whom he received it.” U.S. v. Sterling, 724 F.3d at 506-07.
Perhaps the most interesting aspect of the decision, however, (and the one that draws the criticism of the dissent) is the manner in which the Court of Appeals distinguishes Matter of Codey (Capital Cities, Am. Broadcasting Co.), 82 N.Y.2d 521, 605 N.Y.S.2d 661 (1993), an earlier Court of Appeals case that declined to consider a New York reporter’s privilege argument in a CPL 640.10(2) proceeding. Both of the lower courts and Holmes himself had relied on Codey as holding that the inquiry conducted under CPL 640.10 (2) by the “sending state” to determine whether the information is “material and necessary” does not encompass the concepts of admissibility, disclosability or privilege because such consideration would be inefficient and inconsistent with the purpose of the Uniform Act. The Court of Appeals found this reliance in error because of three differences between the facts of Holmes’ application and that presented inCodey. Most importantly, the subpoena at issue in Codey sought non-confidential information. Second, the reporter in Codey was asking the New York court—which was the “sending court”—to decide an issue of privilege under the law of the requesting state. Third, the law of the “requesting state” in Codey (New Jersey) was not materially different from the law of privilege in “sending state” (New York). In the Holmes case, by contrast, there was no dispute that the information sought was confidential and therefore absolutely privileged under New York law, the sending state, and that it was only conditionally privileged under Colorado law, the requesting state. See Holmes, Slip Op. at pp. 19-22.
The dissent, however, would have still followed the rule set out in Codey because the record in the Holmes case supported the inference that Winter had gathered the confidential information while in Colorado which led the dissent to view Colorado’s law of privilege as the determinative law under conflicts of law principals. The dissent thus criticized the majority’s decision as finding, “in substance, that a New York reporter takes the protection of New York’s Shield Law with her when she travels—presumably anywhere in the world” and finds such a position inconsistent with traditional conflicts of laws analysis. And indeed, the majority does opine that a New York journalist on assignment in Singapore should be able to remotely cover a breaking news event in California and be able to enter into a binding commitment of confidentiality with any relevant sources without having to worry about conflicts of laws issues or principles of comity. See Holmes, Slip Op. at pp. 24-25.
While the majority downplays the significance of this aspect of the ruling, this part of the decision does indeed add a great deal of certainty and comfort to New York reporters. So long as they remain in New York, they need not worry about being hauled into court in any other state and being required to divulge a confidential source. By logic, this ruling will no doubt apply to applications made for subpoenas seeking information for use in civil matters pending in other states as well. (See CPLR § 3102(e)). Thus, while this ruling does not ultimately rule out the possibility that a federal court may require a New York journalist to reveal a confidential source under certain circumstances, see, e.g., U.S. v. Sterling, 724 F.3d 482 (requiring reporter to testify at criminal trial of alleged leaker of classified information regardless of the myriad alternative sources available for the prosecution to establish guilt) or Lee v. Department of Justice, 413 F.3d 53 (D.C.Cir. 2005) (requiring reporters to identify sources of leaks about investigation of plaintiff in order to enable plaintiff to establish government’s violation of Privacy Act), it provides a great deal of certainty for New York journalists and incentive for news organizations to base their reporters out of New York.