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The decision means that Wally Wakefield, a sports reporter for the Maplewood Review, must comply with an earlier district court order to turn over the identities of sources for 13 anonymous and allegedly defamatory statements made in a January 1997 article about former Tartan High School football coach Richard Weinberger or face a fine of $200 per day. Wakefield's article contained several anonymous statements critical of the coach's treatment of his players and describing circumstances that allegedly led to the district's decision to remove Weinberger as football coach.

The opinion is available online at: http://www.courts.state.mn.us/opinions/sc/current/OPC012021-0911.html.

Justice Alan Page's majority opinion focused on an exception to Minnesota's Free Flow of Information Act, Minn. Stat. ¤ 595.021-.025. The statute sets out a broad protection for confidential sources but contains an exemption for defamation actions in some circumstances. Page found that the exemption applied to Weinberger's case, and four other justices agreed. Justices Helen Meyer and Paul Anderson dissented, saying that the First Amendment interest in preserving a vigorous press outweighed Weinberger's interest in obtaining the names of Wakefield's sources.

The struggle over the identification of the anonymous sources began in the summer of 2000, when Weinberger subpoenaed Wakefield in his defamation case against his former employer, Independent School District 622. When Wakefield refused to comply, the district court ordered him to name his sources. Wakefield appealed to the Minnesota Court of Appeals, which reversed the district court's order and remanded the issue for additional findings. On remand, the district court again ordered Wakefield to identify his sources, and the Court of Appeals once again reversed. The appeals court held that Wakefield could not be compelled to identify his sources if the primary motive for seeking disclosure was to turn the reporter into a witness against his sources. The appeals court also said that Weinberger had not produced evidence showing that the statements in question were false or made with "actual malice" – that is, with the knowledge that they were false or with a reckless disregard for the truth or falsity of the statements. (See "Minnesota Shield Law Facing Test" in the Winter 2002 issue of the Silha Bulletin and "Reporters Subpoenaed, Detained: Wally Wakefield Subpoena Update" in the Summer 2002 issue of the Silha Bulletin.)

The key to the case is Minn. Stat. ¤ 595.025, the defamation exception to the Free Flow of Information Act.  Under the exception, a reporter can be required to identify sources in a defamation action if:

• "[T]he person seeking disclosure can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice."


• The person seeking disclosure can show "that there is probable cause to believe thatthe source has information clearly relevant to the issue of defamation."


• And if "the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights."

For the majority, Justice Page wrote that Weinberger had met all three requirements. On the first requirement, the majority held that "it is self-evident that that the identity of the speaker will lead to relevant evidence on the issue of actual malice." The majority found this to be true even though all of the defendants in the case had already been deposed and each had denied being the source of the allegedly defamatory statements.

On the second requirement, the majority held that, if any of the defendants were sources of the allegedly defamatory statements, they would have information clearly relevant to Weinberger's claim.

Finally, the majority considered whether the information sought by Weinberger could be gained through any means "less destructive of first amendment rights." The majority agreed with the district court's analysis that because the sources and the reporter were the only people who knew who made the allegedly defamatory statements, and because the suspected sources already had denied making the statements, "the only other available means to secure that information is from the reporters."

In her dissent, Justice Meyer said the majority's ruling was inconsistent with a "straightforward application of First Amendment principles." Because the state's Free Flow of Information Act was intended to provide reporters with more protection than the First Amendment provides, it makes no sense that an exception to the act would provide less protection than provided by the Constitution, she wrote.

Meyer also noted that the U.S. Supreme Court's ruling in Branzburg v. Hayes, 408 U.S. 665 (1972), dealt only with disclosure of sources in the context of legitimate criminal investigations. The Court in Branzburg did not reach the question of whether reporters could be compelled to disclose sources in other contexts, Meyer wrote.

Meyer criticized the majority for failing to properly balance the interests at stake in the case. On one side of the scale, she said, was Weinberger's interest in the identities of a newspaper reporter's sources. On the other side was the strong interest in avoiding a "chilling effect" on the press by removing reporters' ability to back up promises of confidentiality to sources. Meyer said the outcome of such a test was simplified by the fact that Weinberger's claim did not depend solely on the anonymous statements in the newspaper.

Weinberger could pursue his claim against the defendants even without the newspaper article, because the defendants had made allegedly defamatory statements about the former coach in other settings.

Mark Anfinson, a Minneapolis attorney who represents Wakefield and the Maplewood Review, told the Silha Bulletin that the decision was disappointing, but not unexpected. During the oral arguments in the

case, held in March 2003, most justices "expressed quite vividly an animus on the part of the majority of the court toward the idea of these types of privileges for journalists," Anfinson said.

He added that after the oral arguments, "my sensation basically was like a guy who jumped off a fairly tall building – things were fine until I hit, which of course did happen (when the decision was announced)."

Anfinson said the majority seemed to "willfully avoid the key legal issues" involved in analyzing libel lawsuits. Especially disturbing, he said, was the majority's apparent eagerness to find that the identity of the sources would provide relevant information about actual malice.

The court's reasoning made the first prong of the state law's defamation exception automatic, Anfinson said. The legislature obviously intended the standard to have an impact on a court's analysis, or it wouldn't have included it in the first place. "If you have this condition imposed (but) it applies in every single case, you don't need it," he added.

Anfinson said the conditions raised by the defamation exception might be met in a case where the plaintiff has no idea who the source might be and needs the information in order to pursue a claim. But that was not the situation in Weinberger's case, he said.

Anfinson said he will not appeal the ruling, but he added that what happens next is far from a foregone conclusion.

"I have some definite options back at the trial court before we are forced to make a decision about whether Wally is going to disclose," he said. "I intend to pursue those quite aggressively."

—Doug Peters
Silha Fellow