The Supreme Court of Vermont recently defined a contour of the elusive-to-define Journalist’s privilege. See Spooner v. Town of Topsham, 2007 VT 98.
At a meeting held on September 10, 2001, the Town’s selectboard interviewed several candidates, including plaintiff James Spooner, for the position of road foreman. After a discussion held in executive session, the board announced in open session that it had selected Bryan Hart for the position. Two members of the board, William Appleton and Bruce Thompson, explained the reasons for their decision. One week later, the Journal Opinion, a weekly newspaper based in Bradford, Vermont, published an article by Hank Buermeyer, who had attended the meeting as a reporter for the paper.
The newspaper reported that most of the conversation focused on Spooner’s age, and the fact that a competing candidate was younger. Spooner sued for age discrimination, and sought to subpoena the reporter as a witness to the comments made at the town meeting. The plaintiff’s subpoena was limited to seeking testimony about events that happened at the open meeting.
The newspaper moved to quash the subpoena. Following extensive briefing, the court held a hearing on the motion in December 2005, and issued its written decision in March 2006. Based upon its review of state and federal law, the court concluded that the reporter was entitled to assert a qualified privilege to withhold his testimony unless plaintiff could show that the information sought was relevant to a significant issue in the case, and was not reasonably obtainable from other sources. Although the court found that the reporter’s testimony was relevant, it concluded that plaintiff had not shown that the same or similar information was unavailable from other witnesses who had attended the selectboard hearing. Disclosure in these circumstances would also, in the court’s estimation, exert a “chilling” effect on the “willingness of journalists to attend certain public meetings,” in contravention of free-press interests. Accordingly, the court granted the motion to quash. Plaintiff moved for permission to bring an interlocutory appeal, which we granted.
Vermont was in the vanguard of state courts relying on Branzburg to recognize a qualified First Amendment reporter’s privilege. In St. Peter, several criminal defendants had sought to depose a television news reporter “to determine the source of [the reporter’s] foreknowledge” about a drug raid conducted by the state police. 132 Vt. at 268, 315 A.2d at 255. The reporter declined to answer questions on the subject, claiming a privilege under the First Amendment. The matter was referred to district court, where the reporter again refused to answer and was consequently held in contempt. The trial court certified the question for interlocutory review, which we accepted on the relatively narrow but important issue presented.
¶ 10. Writing for the Court, Chief Justice Barney acknowledged at the outset the significance of the then-recent Supreme Court decision in Branzburg in which the Court declined to recognize a reporter’s privilege to withhold information from grand juries. Id. at 269, 315 A.2d at 255. Chief Justice Barney went on to observe, however, that the Branzburg holding was a relatively narrow one and that the “language and attitude of the . . . majority does not indicate an entire absence of concern for the newsgathering function so relevant to the full exercise of the First Amendment.” Id. “Even more noteworthy,” he found, was “the concurring opinion of Mr. Justice Powell suggest[ing] that the First Amendment supports enough of a privilege in newsgatherers to require a balancing between the ingredients of freedom of the press and the obligation of citizens, when called upon, to give relevant testimony relating to criminal conduct.” Id. at 269-70, 315 A.2d at 255. Taken together, these elements of Branzburg supported the conclusion that, when a reporter “legitimately entitled to First Amendment protection” objects to questions in a deposition proceeding in a criminal case, the reporter “is entitled to refuse to answer unless the interrogator can demonstrate to the judicial officer appealed to that there is no other adequately available source for the information and that it is relevant and material on the issue of guilt or innocence.” Id. at 271, 315 A.2d at 256; see also In re Inquest Subpoena (WCAX), 2005 VT 103, ¶ 14, 179 Vt. 12, 890 A.2d 1240 (holding that “[t]he balancing test adopted in St. Peter does not apply” in the context of a criminal inquest, the equivalent to the grand jury investigation in Branzburg, and therefore a television station had no privilege, qualified or otherwise, to withhold unpublished videotape showing the commission of certain crimes).
Although Vermont was at the vanguard of the Journalist’s Privilege movement, in this case the Vermont Supreme Court placed a limitation on the Green Mountain State’s recognition of the Privilege. Since the testimony sought was not confidential and (according to the court) not available from any other source, the Privilege did not apply.
I can see the Court’s point in holding that the information was not confidential, therefore the Privilege may not apply. It certainly would chill the ability of reporters to seek out and cultivate confidential sources if the reporter could later be subject to a court order compelling the revelation of the source’s identity — or even to testify as to what was said. If such judicial practices were allowed, the public would be deprived of important information that otherwise would never make it to press.
In this case, the information was hardly private or confidential. I suppose that I can understand the court’s unwillingness to believe that newspapers might be chilled from sending reporters to town meetings if they knew the reporter might find himself testifying in court.
I am a little bit less supportive of the holding that the information was not available elsewhere. The Court seems to rely on the fact that this is a “he said, she said” case – and thus, diverse contemporaneous eyewitness reports might be helpful or useful. This is not the key issue to the holding, and thus is not that troubling. However, I fear that this logic could later be employed to compel otherwise-privileged testimony of a more confidential nature.