Thursday, December 12, 2013

NY Court of Appeals: Freedom of the Press Taken Seriously

[Back to Criminal Leaves in the next post. For now, Tuesday's decision in Holmes v. Winter.]
New York has a long tradition, with roots dating back to the colonial era, of providing the utmost protection of freedom of the press.
New York public policy of protection for those who gather and report the news has been recognized as the strongest in the nation.
Protection of the anonymity of confidential sources is a core—if not the central—concern underlying New York’s journalist privilege, with roots that can be traced back to the inception of the press in New York.

Victoria A. Graffeo
Court of Appeals collection
That's not me speaking. That's the Court of Appeals, New York's highest court, through the pen of Judge Victoria Graffeo.

It is a veritable paean to freedom of the press. To the protection of a free press as essential to democratic governance. To the state's commitment to robust, unimpeded news-gathering and reporting.

Graffeo's opinion for the Court of Appeals in Matter of Holmes v. Winter builds upon New York's history, constitution, legislation, and judicial decisions. Her opinion reaffirms and reinforces the Court's leading precedents in the area. It establishes another milestone that is sure to be cited along with the Court's other leading free press landmarks.

The factual background of the case can be stated briefly:
The 2 named parties in the case are James Holmes (the mass shooter at a Colorado movie theater last year, who has been charged with multiple counts of murder) and Jana Winter (a New York investigative reporter for Fox News, who wrote an article about a notebook that Holmes had mailed to his psychiatrist before the shootings).
The Colorado judge presiding over Holmes’s trial sought Winter’s attendance as a necessary witness. Winter objected on the ground that she was protected under New York law from disclosing confidential sources.
Under the terms of a multistate law, a New York judge issued a subpoena ordering Winter to appear in Colorado. New York’s intermediate appellate court, the Appellate Division, then affirmed.

The case then went to the Court of Appeals. In a 4-3 decision issued this week, New York’s high court reversed. It enforced the “journalist privilege” as an integral protection of New York’s guarantee of freedom of the press.

Judge Graffeo was joined by Chief Judge Lippman and Judges Rivera and Abdus-Salaam. Judges Read, Smith, and Pigott dissented.

Here are some excerpts from Graffeo’s majority opinion:
New York has a long tradition, with roots dating back to the colonial era, of providing the utmost protection of freedom of the press. Our recognition of the importance of safeguarding those who provide information as part of the newsgathering function can be traced to the case of “John Peter Zenger who ... was prosecuted for publishing articles critical of the New York colonial Governor after he refused to disclose his source” (Matter of Beach v. Shanley [1984] [Wachtler concurrence]). A jury comprised of colonial New Yorkers refused to convict Zenger—an action widely viewed as one of the first instances when the connection between the protection of anonymous sources and the maintenance of a free press was recognized in the new world. In acknowledging the critical role that the press would play in our democratic society, New York became a hospitable environment for journalists and other purveyors of the written word….
Article I, § 8 of the New York Constitution—our guarantee of free speech and a free press—was adopted in 1831, before the First Amendment was rendered applicable to the states (O’Neill v. Oakgrove Constr. [1988] ). The drafters chose not to model our provision after the First Amendment, deciding instead to adopt more expansive language:
“Every citizen may freely speak, write and publish his or her sentiments on all subjects ... and no law shall be passed to restrain or abridge the liberty of speech or of the press” (N.Y. Const, art I, § 8)….
This was in keeping with “the consistent tradition in this State of providing the broadest possible protection to ‘the sensitive role of gathering and disseminating news of public events’" (O’Neill, quoting Beach)….
In furtherance of this historical tradition, the Legislature adopted the Shield Law in 1970. Among other protections, the statute grants an absolute privilege precluding reporters from being compelled to reveal the identity of confidential sources….Another subsection of the statute largely codified our decision in O’Neill v. Oakgrove Constr. which recognized that Article I, § 8 provides reporters with a “qualified exemption” against compelled disclosure of [even] “nonconfidential news”….
It is clear from the legislative history of these provisions that the Legislature believed that such protections were essential to maintenance of our free and democratic society. Prior to the adoption of the first statute in 1970, lawmakers considered affidavits prepared by several luminaries of the profession—including Walter Cronkite, Eric Severeid and Mike Wallace—emphasizing the critical importance of protecting the anonymity of confidential sources in order to assure a continued flow of information to reporters and, thus, to the public. The views expressed by these reporters were echoed by Governor Nelson Rockefeller in his memorandum approving the legislation. There he emphasized that “[t]he threat to a news[person] of being charged with contempt and being imprisoned for failing to disclose his [or her] information or ... sources can significantly reduce his [or her] ability to gather vital information.”
The Governor described freedom of the press as “one of the foundations upon which our form of government is based,” concluding that “[a] representative democracy, such as ours, cannot exist unless there is a free press both willing and able to keep the public informed of all the news”. Moreover, it is evident from the approval memorandum that he and the Legislature intended the statute to provide the highest level of protection in the nation: “This ‘Freedom of Information Bill for Newsmen’ will make New York State—the Nation’s principal center of news gathering and dissemination—the only state that clearly protects the public’s right to know”….
This articulated legislative purpose to protect against incursions on press freedom was repeatedly reaffirmed in the years after the original Shield Law was enacted when the statute was amended several times in an effort to strengthen its provisions, often in response to judicial decisions that the Legislature viewed as affording inadequate protections to reporters. For example, in 1981 the Legislature passed amendments intended to “correct loopholes and fill gaps in the existing statute,” indicating this was necessary because “[c]ase history makes it abundantly clear that the courts have been all too often disinclined to follow the letter or even the spirit of the existing law” (Beach)….
As a result, New York public policy as embodied in the Constitution and our current statutory scheme provides a mantle of protection for those who gather and report the news—and their confidential sources—that has been recognized as the strongest in the nation. And safeguarding the anonymity of those who provide information in confidence is perhaps the core principle of New York’s journalistic privilege, as is evident from our colonial tradition, the constitutional text and the legislative history of the Shield Law….
As we have explained, protection of the anonymity of confidential sources is a core—if not the central—concern underlying New York’s journalist privilege, with roots that can be traced back to the inception of the press in New York…[T]here is no principle more fundamental or well-established than the right of a reporter to refuse to divulge a confidential source….
[A]s a New York reporter, Winter was aware of—and was entitled to rely on—the absolute protection embodied in our Shield Law when she made the promises of confidentiality that she now seeks to honor…We therefore conclude that an order from a New York court directing a reporter to appear in another state where, as here, there is a substantial likelihood that she will be compelled to identify sources who have been promised confidentiality would offend our strong public policy-a common law, statutory and constitutional tradition that has played a significant role in this State becoming the media capital of the country if not the world….
Here.. there is a substantial likelihood that a New York reporter will be compelled to divulge the identity of a confidential source (or face a contempt sanction) if required to appear in the other jurisdiction—a result that would offend the core protection of the Shield Law, a New York public policy of the highest order…We therefore conclude that the subpoena application should have been denied.
This is the sort of opinion that has historically made the Court of Appeals one of the most respected and influential judicial tribunals in the country. It's the type of opinion that leads judges in other states to take notice of decisions of New York's high court. And it's the type of opinion that makes clear that fundamental rights--those that are essential to a free society--should be taken seriously.

[For those interested in judicial politics, Graffeo is a Republican gubernatorial appointee whose record is typically conservative. Lippman, Rivera, and Abdus-Salaam were appointed by Democratic governors and their records are typically liberal. All 3 dissenters are Republican appointees whose records range from moderately to very conservative.

Disclosure: As is evident, I think Graffeo's opinion is superb. And though my voting record would be different from hers if I were on the Court--God forbid--I, like others of my political/ideological ilk, admire her and think she is a really fine judge.]