New Jersey's Shield Law May Not Protect Journalists Who Disclose Information
 
July 16, 2007
 
Debra Deardourff Faulk- Tampa

A recent New Jersey Supreme Court decision provided a valuable reminder that, even where journalists’ rights to resist testifying are strong, they need to proceed with caution when discussing information they learn while gathering the news. That state’s highest court has held that journalists may waive the privilege under shield laws when they share the information with others.

In December 2004, a reporter for The Record in Hackensack wrote an article about the firing of a nearby municipality’s police officer and attributed to the mayor information that the officer had been fired for “a purported conviction of an undisclosed crime.” The article spurred a Bergen County grand jury investigation, and the mayor became the target as grand jurors probed whether he had the officer’s confidential personnel file. The reporter, threatened with a grand jury subpoena, submitted instead to an interview with prosecutors under oath and authenticated the published information. The reporter only had to answer questions authenticating the article.

Subsequently, the police officer sued the reporter, the mayor, the police borough and the newspaper for defamation. The officer moved to depose the reporter and sought access to the reporter’s notes and any recordings related to the reporter’s interview with the mayor. The reporter invoked New Jersey’s strong shield law and refused to comply with any of the police officer’s requests.

In its recent ruling, the New Jersey Supreme Court unanimously held that a reporter cannot selectively and arbitrarily invoke the privilege after making disclosures outside of the newsgathering and news reporting process. According to the court, after a journalist has already disclosed information to county investigators and the police borough attorney, no important interest could be threatened by ordering the reporter to give the same information to a civil litigant. The court viewed the deposition with county officials as stepping outside the context of newsgathering and reporting and waiving the privilege to refuse to testify about the same information. Consequently, the court held, the police officer could conduct a pretrial deposition and require the reporter to produce his notes or recordings.

While the decision ultimately requires a reporter to testify, the reporter was only required to disclose information that was previously revealed. The court upheld the reporter’s invocation of the shield law with respect to information he had not previously disclosed.

For more information, email Debra Deardourff Faulk at debra.faulk@hklaw.com or call toll free, 1-888-688-8500.