September 21, 2010 12:12 PM

Reporter's Privilege Takes Center Stage in NY, NJ

Posted by Zach Lowe

The question of whether courts or litigants can compel reporters to testify about sources seemingly reached its high point when Judith Miller, then of The New York Times, went to jail rather than testify before a grand jury in the Valerie Plame case. But the issue of the so-called reporter's privilege remains unsettled, and two courts in the tri-state area are tackling it as we speak. 

First up: Federal appeals court in Manhattan, where on Tuesday the court will hear James Treacy and his lawyers at Steptoe & Johnson appeal Treacy's conviction for options backdating at Monster Worldwide Inc., according to Bloomberg. One of the central issues in Treacy's appeal is whether Judge Jed Rakoff erred during the trial by placing strict limits on what lawyers on both sides could ask one of the Wall Street Journal reporters that exposed backdating in a Pulitzer Prize-winning series in 2006, according to Bloomberg. Treacy's legal team claims Rakoff improperly limited their right to confront the reporter, Charles Forelle, about only very limited subject matter--three statements from Treacy that Forelle quoted in a story. The National Association of Criminal Defense Lawyers has submitted a brief backing that argument, claiming Rakoff's limits violated the Sixth Amendment's confrontation clause, Bloomberg says. 

News Corp., the WSJ's parent company, has seized on the issue as a chance to argue for broader protections for reporters. Prosecutors subpoenaed Forelle to testify in the case, and Rakoff ordered Forelle to court over the WSJ's objections. The WSJ sees an opening now to push for a ruling that would strictly limit prosecutors' authority to force reporters to testify, Bloomberg says. The New York-based federal appeals court has issued decisions on when civil litigants and criminal defendants can force reporters into court, but the rights of prosecutors to do so within the Second Circuit are unclear, Bloomberg says. The WSJ claims prosecutors should only be able to compel reporters if the information sought is "essential" or "critical" and cannot be obtained any other way, Bloomberg says. 

That's a lot to think about isn't it? But there's a related case in New Jersey that centers on an entirely different prong in this debate: Does the reporter's privilege apply to independent bloggers, and, if so, when? New Jersey state courts have so far ruled that it does not apply to a Washington-based blogger who criticized a New Jersey software company that apparently does some work for clients in the adult entertainment industry, according to the New Jersey Law Journal, one of our sibling publications. The blogger, Shellee Hale, claimed she posted the allegedly defamatory comments about Too Much Media on a Web site that covers the adult entertainment industry. She said the comments, which accused Too Much Media of violating identity theft laws, reflected information she gathered while reporting for her personal blog. Too Much Media wants to depose Hale about her sources, but she and her lawyers at Fox Rothschild have argued New Jersey's shield law protects her as it would a traditional reporter. 

Lower courts have disagreed, but the state's Supreme Court recently agreed to hear Hale's case, the NJLJ reports.

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