Academic journal article Albany Law Review

Found and Lost: Reclaiming the Press Privilege for Nonconfidential Information

Academic journal article Albany Law Review

Found and Lost: Reclaiming the Press Privilege for Nonconfidential Information

Article excerpt

INTRODUCTION

For nearly thirty years, New York State has recognized a qualified right of journalists to withhold nonconfidential but unpublished editorial materials in the face of subpoenas from investigators and litigants. (1) But two recent appellate decisions have raised questions about the vitality of that protection: both criminal cases, both involving murders, both involving jailhouse interviews, and neither on its face the kind of case in which one would expect to find courts making important decisions shaping the future of press law in New York. (2)

The first case involves "Ramona Moore[, who] was last seen on July 31, 2012, when she vanished from her residence in the Bronx." (3) Nearly two years later, her landlord, Nasean Bonie, was charged with her murder. (4) On December 15, 2014, as Mr. Bonie sat in a New York City jail, he was interviewed on camera by a local television crew for nearly thirty minutes. (5) He denied killing Ms. Moore. (6) A few weeks later, News 12, The Bronx, aired some sixty seconds of the interview as part of a show entitled "Burden of Proof." (7)

The second case involves the infamous murder of "Baby Hope," a death that had once captured the attention of New Yorkers. (8) In July 1991, police discovered near the Henry Hudson Parkway the body of a four-year-old girl. (9) The anonymous victim, who had been sexually assaulted and suffocated, came to be known as "Baby Hope." (10) Her murder, dramatically reported by New York's tabloids, remained unsolved for more than two decades. (11) Then, in 2013, police came upon new leads and learned that the girl's name was Anjelica Castillo. (12) A short time later, Conrado Juarez, one of Anjelica's cousins, was charged with murder. (13) As Juarez remained in jail on Rikers Island, he was visited by New York Times reporter Frances Robles and sat down for an interview in which he denied killing the little girl. (14) Ms. Robles's story appeared in the paper a short time later. (15)

In 2016, the two cases became the latest battlegrounds in the fight over the scope and strength of New York State's "Shield Law." (16) Skirmishes between prosecutors and reporters over anonymous sources have been in the public spotlight since the U.S. Supreme Court's 1972 decision in Branzburg v. Hayes, (17) in which the Court refused to quash three subpoenas on reporters who declined to identify sources during grand jury investigations. (18) But Bonie and Juarez were different. They involved the Shield Law's separate protection, under subdivision (c), for nonconfidential material collected by journalists but not used in their stories or broadcast reports. (19) The Shield Law contains an absolute privilege for confidential information, but sets out a three-prong qualified privilege for unpublished nonconfidential information. (20) Several years ago, the Court of Appeals candidly admitted: "[T]here are uncertainties concerning the application of the outer reaches of our statute, particularly the scope of the qualified privilege for nonconfidential news." (21)

In light of that uncertainty, it was not surprising that the same appellate court would come to different results in cases that had basic similarities. In Bonie, the First Department ordered News 12 to turn over its unaired footage from the jailhouse interview. (22) In Juarez, the First Department veered the other way, quashing the subpoena served on the reporter. (23)

Yet, in neither Bonie nor Juarez did the appellate division delve deeply into the language of the statutory privilege or grapple with the policy and philosophy that underlie the Shield Law's protection for unpublished materials. (24) It was a lost opportunity in an area that the Court of Appeals acknowledges is lacking in clear precedent. (25) More than that, both decisions continue a judicial trend of diluting the applicable standard and, by doing so, eroding the intended protection of the press.

To be sure, for courts accustomed to dealing with privileges that grow out of confidential relationships--attorney-client, physician-patient, cleric-parishioner, reporter-source--subdivision (c) is a strange legal cousin. …

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