Found and Lost: Reclaiming the Press Privilege for Nonconfidential Information

By McCraw, David | Albany Law Review, Summer 2017 | Go to article overview

Found and Lost: Reclaiming the Press Privilege for Nonconfidential Information


McCraw, David, Albany Law Review


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For nearly thirty years, New York State has recognized a qualified right of journalists to withhold nonconfidential but unpublished editorial materials in the face of subpoenas from investigators and litigants.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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

Found and Lost: Reclaiming the Press Privilege for Nonconfidential Information
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen
Items saved from this article
  • Highlights & Notes
  • Citations
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA 8, MLA 7, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Search by... Author
    Show... All Results Primary Sources Peer-reviewed

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.