Pennsylvania’s highest court refused to adopt a “crime-fraud exception” to the state’s statutory shield law Sept. 24, 2008, holding that the statute’s “unambiguous” text provides an absolute shield for reporters to protect the identity of confidential sources.
“Our Shield Law jurisprudence has consistently recognized the statute’s absolute protection of a source’s identity from compelled disclosure. For that reason alone, we cannot simply engraft upon the statute an exception which would not only contradict the well-established public policy underlying the Shield Law, but, as importantly, would contravene the statute’s unambiguous text,” Chief Justice Ronald D. Castille wrote for a majority of the court in Castellani v. Scranton Times, L.P., 956 A.2d 937 (Pa. 2008).
The ruling upheld a mid-level appellate court’s reversal of a trial court order that would have forced a reporter for The Scranton Times and The Tribune, both based in Scranton, Pa., to reveal the identity of a confidential source. (See “Pennsylvania Court Rules Reporter Need Not Reveal Source” in the Winter 2007 issue of the Silha Bulletin.)
Both papers, which have since merged to become The Times-Tribune, published essentially identical front-page stories by Jennifer Henn about a grand jury investigation of alleged wrongdoing in Lackawanna County’s prison system on Jan. 12, 2004, Castille’s opinion said. The stories alleged that two county commissioners, Randall A. Castellani and Joseph J. Corcoran, were uncooperative when questioned by the grand jury about problems at the prison.
Grand jury proceedings are closed to reporters and are supposed to be confidential, but Henn cited “a source close to the investigation” in her reporting. Pennsylvania law, 42 Pa. Stat. Ann. section 4549, makes it illegal for participants in grand jury proceedings to disclose information about the proceedings with the single exception that witnesses may discuss their own testimony.
After the stories ran, the grand jury’s supervising judge, Isaac S. Garb, appointed a special prosecutor to investigate whether the source was a person connected to the state attorney general’s office, which was conducting the grand jury investigation. But the prosecutor concluded that the allegations in the story that the commissioners “stonewalled” the grand jury and irritated jurors to the extent that Castellani and Corcoran were nearly pulled from the witness stand were inaccurate and could not have come from actual participants in the proceedings.
Garb concurred in the prosecutor’s report, noting the inaccurate assertions in Henn’s story provide no evidence that someone in the attorney general’s office broke the law. “Obviously, the source of the reporter’s information was someone not privy to the Grand Jury proceedings and, therefore, not someone in the Office of the Attorney General,” Garb wrote.
Citing the special prosecutor’s report as evidence, Castellani and Corcoran filed a defamation suit against Henn and the newspapers in the Lackawanna County Court of Common Pleas. The commissioners quickly moved to compel the defendants to disclose the identity of Henn’s confidential source.
In a June 3, 2005 order, Judge Robert A. Mazzoni granted the plaintiffs’ motion. Although he acknowledged that the shield law, 42 Pa. Cons. Stat. Ann. section 5942, purported to provide absolute protection for reporters seeking to protect the identity of confidential sources in order to promote the free flow of information, he ruled those interests must yield to the state’s stronger interest in grand jury confidentiality.
Mazzoni distinguished the case from other instances where Pennsylvania courts have upheld the absolute protections of the shield law based on the nature and foundation of the communication between Henn and her source. “This communication does not talk about a crime – it is the crime,” he wrote.
After issuing the order, Mazzoni certified the question for immediate appeal to the Pennsylvania Superior Court before continuing with the defamation suit.
The mid-level court reversed Mazzoni’s ruling and the Pennsylvania Supreme Court affirmed, holding, “the news media have a right to report news, regardless of how the information was received.” The high court recognized that Henn’s source may have committed a crime, but held that it was improper to punish the media for the wrongdoing of their source. “[T]he Shield Law protects a journalist’s source of information from disclosure, even if such protection would conceal or cover-up a crime,” Justice Castille wrote for the majority.
Castille contrasted the statute’s nearly absolute protection for the identity of a source with its more ambiguous description of what type of “source” is actually protected.
In Hatchard v. Westinghouse Broadcasting Co., 532 A.2d 346 (Pa. 1987), the State Supreme court held in the context of a libel action that the shield law does not protect “unpublished documentary information” that does not reveal the identity of a confidential informant. That ruling recognized that “the Legislature did not intend to shield all information that an alleged defamer had prior to publication of a defamatory statement” but only the identity of the confidential informant, the majority opinion said (emphasis in original).
When the information sought will reveal the actual identity of the informant, however, the statute provides absolute protection for newspaper and magazine reporters to maintain confidentiality, Castille’s opinion said.
The statute contains a single textual exception. If television and radio stations fail to maintain and keep open for inspection tapes or transcripts of all their actual broadcasts for at least one year, they may be forced to reveal the identity of confidential sources.
A single justice dissented, arguing the majority opinion failed to give adequate weight to the right to reputation protected by the Pennsylvania Constitution, Art. I, section 1.
Justice Seamus McCaffery argued that the court should recognize an exception to the shield law where a public figure plaintiff makes a “colorable showing” that the unnamed source of the allegedly defamatory information does not exist at all. “Otherwise, the plaintiff is left without the ability to sustain his or her heavy burden to show that the alleged defamer acted with actual malice,” he wrote.
According to McCaffery, the information reported in Henn’s story was so inaccurate that the plaintiffs should have the opportunity to discover whether there was any source at all. It would be difficult to prove that Henn acted with reckless disregard for the truth if she is allowed to rely on the accusations of an unnamed informant who may not even exist, he argued.
The ruling means that the case will return to the Court of Common Pleas for a trial on the defamation claim. But the identity of Henn’s source – and any documentary information that would reveal the identity of that source – is protected from discovery and will not have to be disclosed.
The Associated Press reported on Sept. 26, 2008 that Castellani and Corcoran would continue with their defamation case despite the adverse ruling. “The court was very clear in its decision, and we respect that,” said their attorney, Geoff Johnson. “We’re going to go forward and prosecute.”
– Michael Schoepf