In Re Schuman
This appeal raises the question of whether a newsperson can be compelled by the State to testify at trial concerning a confession made to him in the pursuit of his professional activities by a criminal defendant after the confession has been published in the newspaper. We find that under the provisions of the New Jersey Shield Act,
This matter arises out of the capital case of State of New Jersey v. Gary J. Mayron (Sussex County Indictment No. 86-05-0096-I), in which defendant Mayron is charged with kidnapping (
Schuman‘s front page articles detailed the substance of their conversations. His April 8, 1986, story, under the headline, “Murder Suspect: `I just lost it,‘” stated as follows:
In an interview with The Herald Monday, Mayron said he had sexual relations with Susan Brennan of Lake Hiawatha late last month and then beat her in a Parsippany motel room before beating her to death and leaving her in Sparta.
Schuman‘s April 10 article provided further elaboration:
In a follow up phone interview with The Herald on Tuesday, Mayron said he killed Brennan “out of a lot of hate and a lot of anger” for her because she had sex with him so soon after they had met.
........
“You just don‘t do that unless you love somebody“, hе claimed he told the girl as they drove from a Morris County motel to a wooded area of Sparta where he said he kicked and beat her while she pleaded with him.
“`Please don‘t kill me. I‘m sorry,‘” Mayron quoted the teenager as saying.
........
“I didn‘t mean to kill her. Just to hurt her. She was in the place of my real mother“, said Mayron, who was adopted. “And that‘s what I felt like doing to her” (his mother).
“It was like physically it was me but mentally it wasn‘t. Anger and hate constantly controlled me for four or five hours.”
The State served Schuman with a subpoena to testify on or about March 18, 1987. On April 1, 1987, Schuman moved before the trial court to quash the subpoenа. Schuman‘s affidavit read, in part, as follows:
4. The testimony I am to provide on behalf of the State was obtained solely and exclusively in the course of pursuing my professional activities as a reporter for the New Jersey Herald.
5. I have not been an eyewitness to any alleged act or offense the Defendant is accused of having committed.
6. There is a public perception that newspersons are immune from compulsory process. The belief that newspersons cannot be called upon to testify encourages the free flow of information between sources and reporters regаrdless of whether the sources request confidentiality. Compelled disclosure would decrease the flow of information available to the public because reporters will be ethically compelled to advise their sources that confidentiality may not be able to be guaranteed, or reporters will refrain from disclosing their sources.
7. The information sought by the subpoena is subject to the newsperson‘s privilege as set forth in N.J.S.A. 2A:84A-21 et seq., Evid.R. 27, which privilege I do hereby invoke and which information I thus respectfully refuse to disclose as a witness.
At the hearing on the matter, the State explained that it sought to intrоduce only the specific statements made by Mayron that were reported by Schuman in the published articles.
Schuman contends that
The trial court held in favor of Schuman and quashed the subpoena. The court cited this Court‘s statement in Maressa v. New Jersey Monthly, 89 N.J. 176, 187, cert. den., 459 U.S. 907, 103 S.Ct. 211, 74 L.Ed.2d 169 (1982), that “[a]bsent any countervailing constitutional right, the newsperson‘s statutory privilege not to disclose confidential information is absolute.” The trial court considered whether the information involved in this case, having been published, was in fact “confidential“; it concluded, “I hоnestly don‘t know.” Although its “inclination” was that the information was not confidential, it decided that it would “rather err on the side of caution, in protecting the rights of the newspaper, rather than go the other way.”
The State moved for leave to appeal nunc pro tunc. The Appellate Division reversed. 222 N.J. Super. 387 (1987). In its opinion, the Appellate Division conceded that “[t]he 1977 amendments to the Shield Law, literally read, provide a privilege from the disclosure of information notwithstanding dissemination of it in the media.” Id. at 393; see
I
This appeal cоncerns a conflict between two competing principles: the public‘s right to everyone‘s evidence5 and the public‘s right to the unencumbered free flow of information. We recognize the importance, validity, and vitality of both of these policies. Nevertheless, the New Jersey Shield Law is designed “to protect the confidential sources of the press as well as information so obtained by reporters and other media representatives to the greatest extent permitted by the Constitution[s]” of the United States and New Jersey. In re Farber, 78 N.J. 259, 270 (1978), cert. den. sub nom., New York Times Co. v. New Jersey, 439 U.S. 997, 99 S.Ct. 598, 58 L.Ed.2d 670 (1978). The continuous efforts of the New Jersey Legislature “to establish thе strongest possible protection for the newsman and news media” leads us to conclude that Mr. Schuman cannot be compelled to testify against Mayron. Id. at 302-03 (Handler, J., dissenting). This conclusion is supported by the statutes’ language, the statutory scheme, and, most importantly, by the fundamental public policies underlying the Shield Law. The statutory privilege along with these policy considerations favor protecting the press from being compelled by the State to
At common law, a newsperson did not have the privilege “to conceal from judicial inquiry, either the source of ... information or the information itself.” Beecroft v. Point Pleasant Printing & Publishing Co., 82 N.J. Super. 269, 272 (Law Div. 1964); accord In re Julius Grunow, 84 N.J.L. 235 (Sup.Ct. 1913). Reporters therefore turned to state legislatures for statutory protection. Presently at least twenty-six states have enacted so-called “Shield Laws,” that grant newspersons privileges, of varying scope, not to disclose either the source or information. Comment, Journalists’ Privilege: In re Farber and the New Jersey Shield Law, 32 Rutgers L.Rev. 545, 548-49 (1979).
The first New Jersey newsperson‘s privilege was enacted in 1933, and protected only the “source” of any information. L. 1933, c. 167. In 1960 the law was amended to increase the scope of the privilege to protect various sоurces of published information.6 Information itself, however, was not privileged, nor were sources of information protected where the information gathered was not published. Moreover, the newsperson‘s privilege was subject to the full force of the waiver provisions of
As a result of court decisions, the Legislature in the late 1970s amended the Shield Law to expand substantially the media‘s privilege. See Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972), and In re Bridge, 120 N.J. Super. 460 (App.Div.), certif. den., 62 N.J. 80 (1972), cert. den., 410 U.S. 991, 93 S.Ct. 1500, 36 L.Ed.2d 189 (1973) (both of
The 1977 amendments increased the scope of the “source privilege” to encompass all sources of information, regardless of whether the information was disseminated, and also created an “information privilege” covering all information gathered in the scope of professional activities, whether or not that information was disseminated.
In light of the amendments to the Shield Lаw, it is clear that the legislature has continuously acted to establish the strongest possible protection from compulsory testimony for the press. This is particularly true of testimony sought by the state. In Branzburg, supra, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 and Bridge, supra, 120 N.J. Super. 460, the prosecution was permitted to compel the testimony of a reporter. These decisions were followed by the 1977 amendments, which expanded both the source and information privileges.
Like the amendments to the Shield Law, legislative action in related areas also displays a desire to afford the press increased protection from the State. Contrary to Federal law, the New Jеrsey Wiretap Act requires the State to show “special need” before it can obtain a legal wiretap of a newsperson‘s phone.
Basic principles of statutory construction likewise dictate that Schuman not be compelled to testify. First, it is axiomatic that in construing a statute one first considers its plain language. Kimmelman v. Henkels & McCoy, Inc., 108 N.J. 123, 128 (1987); Renz v. Penn Cent. Corp., 87 N.J. 437, 440 (1981); Sheeran v. Nationwide Mut. Ins. Co., Inc., 80 N.J. 548, 556 (1979). Read literally,
Moreover, it is well established that a subsequent specific enactment that conflicts with an earlier general one will supersede the earlier enactment. In re Vrazo, supra, 176 N.J. Super. at 461 (Law Div. 1980); accord W. Kingsley v. Wes Outdoor Advertising Co., 55 N.J. 336, 339 (1970); Brewer v. Porch, 53 N.J. 167, 173 (1969); Cafe Gallery, Inc. v. State, 189 N.J. Super. 468, 473 (Law Div. 1983). Since the phrase “whether
Additionally, any statutory construction that “will render any part of a statute inoperative, superfluous or meaningless, is to be avoided.” Abbotts Dairies v. Armstrong, 14 N.J. 319, 328 (1954); accord Paper Mill Playhouse v. Millburn Township, 95 N.J. 503, 521 (1984). This canon will be transgressed if the “whether or not it is disseminated” language in
The legislative history of the New Jersey Shield Law also supports the interpretation that the general waiver provisions of
We do not agree, therefore, with the State‘s contention that the 1979 amendments to the Shield Law indicate that the legislature recognized that dissemination of information through publication in the media had always constituted a waiver of the privilege with respect to the information published. The legislative history of the 1979 amendment makes it very evident that the amendment applies only to requests by criminal defendants. “The provisions of the bill arе only applicable when a criminal defense is involved at the trial level. These procedures could not, for example, be used by the prosecution in a criminal trial, or at a grand jury proceeding.” (emphasis supplied.) Assembly Statement to A. 3062, supra. The Legislature, therefore, intended
The fundamental public policies underlying the Shield Law also favor protecting Schuman from being compelled by the State to testify. We have held that the needs of the party seeking to compel testimony of a newsperson must be “manifestly compelling.” See In re Farber, supra, 78 N.J. at 267. The party seeking disclosure must demonstrate, “by a preponderance of the evidence, the non-availability of less intrusive sources which provide information substantially similar to that [which is sought].” State v. Boiardo, 82 N.J. 446, 449 (1980) (Boiardo I). Both Farber and Boiardo involved requests by criminal defendants, who, unlike prosecutors, are favored by constitutional and statutory provisions. Boiardo, supra, 82 N.J. at 458-59; In re Farber, supra, 78 N.J. at 273-74; accord Monk, Evidentiary Privilege, supra, 51 Mo.L.Rev. 1, 43 (1986); Note, The Right of the Press to Gather Information, 71 Colum.L.Rev. 838, 863 (1971).
In State v. Boiardo, 83 N.J. 350, 358 (1980) (Boiardo II), we denied a defendant‘s request for documents held by a reporter because other sources provided the same information contained in the requested documents. Similarly, the contents of Mayron‘s confession to Schuman appearing in the published articles may be attained through several оther less intrusive sources: a sworn statement of Mayron, oral statements to a corrections officer, an oral confession to a detective, a series of letters written by Mayron to a former lover, and tape recordings of phone conversations with his former lover. Schuman, then, should certainly not be compelled by the prosecution to testify
Other fundamental public policies underlying New Jersey‘s strong Shield Law support the conclusion that Schuman should not be compelled to testify. The public perception convеyed by compelling Schuman to testify will hinder the free flow of information from newspapers to the public. If a reporter is seen to be an “arm of the prosecution,” the reporter will have difficulty gathering information from fearful sources. See Blasi, The Newsman‘s Privilege: An Empirical Study, 70 Mich.L.Rev. 229, 262-64 (1971); Comment, The Newsman‘s Privilege: Government Investigations, Criminal Prosecutions and Private Litigation, 58 Calif.L.Rev. 1198, 1204-07 (1970). Thus, the newsperson will be reluctant to disclose certain sources and information out of fear of waiving the privilege. By the same token, apprehension about subpoenas may cause the reporter to destroy valuable notes and files. See Newsman‘s Privilege, supra, 58 Calif.L.Rev. at 1208. The end result of such imрediments may be a decrease in the effectiveness of criminal investigators. Crime stories often provide direct benefits to law enforcement agencies. Evidentiary Privilege, supra, 51 Mo.L.Rev. at 12-13. But see Branzburg v. Hayes, supra, 408 U.S. at 695, 92 S.Ct. at 2663, 33 L.Ed.2d at 647-48. For example, Schuman‘s articles about Mayron sketched a trail of the defendant‘s activities for the police to follow.
Furthermore, the paper for which Schuman worked at the time of publication of his articles on Mayron, the Herald, is a small daily with a full-time staff of only nine reporters. Compelling the testimony of one of its reporters or embroiling the paper in a costly, protracted controversy over a prosеcution subpoena could severely hinder its newsgathering activities. It has been argued that such burdens constitute an infringement on first amendment rights. See Note, The Newsman‘s Privilege After Branzburg: The Case For A Federal Shield Law 29 UCLA L.Rev. 160, 175 n. 87 (1976) (citing Columbia Broadcasting Sys. v. Democratic Nat‘l Comm., 412 U.S. 94, 168-69 n. 18, 93 S.Ct. 2080, 2119 n. 18, 36 L.Ed.2d 772, 821 n. 18 (1972) (Douglas, J. concurring)).
We recognize that it is difficult to demonstrate conclusively that all of the above impediments to the newsgathering process will flow from compelling Schuman‘s testimony. However, the same is true of other situations in which courts have afforded protection based on a privilege — for instance, the attorney-client and marital privileges. See Evidentiary Privilege, supra, 51 Mo.L.Rev. at 5. In those contexts “we postulate harm to those relationshiрs based not upon evidence, but merely our thoughts about human behavior, [and] it seems equally fair to postulate harm to a journalist‘s relationship with sources in the absence of a privilege.” Ibid. (Footnotes omitted).
The State argues that the negative repercussions of compelling a newsperson to testify are less where, as here, testimony regarding a confidential source or undisclosed information is not at issue. A similar argument was made by the dissent in Boiardo II, supra, 83 N.J. at 365 (Schreiber, J. dissenting).
We do not, however, find the distinction between disclosed and undisclosed sources or information dispositive.11 In Boiardo II we stated that purposes of the Shield Law are as importаnt when the information is known because,
every compelled production chills confidential sources. One of the purposes of the new shield law is to minimize that adverse effect by confining compelled production to cases where it is necessary. It is precisely where the information is otherwise known that the production of confidential documents should not be compelled, for the obvious reason that it is not necessary.
[Id. at 360].
Similarly, in a federal case strikingly analogous to the instant case it was held that “[a]lthough no confidential source or information is involved ... this is irrelevant to the chilling
An additional policy consideration that supports Schuman‘s position is that his testimony is sought in a trial, not a grand jury proceeding. The probability that a newsperson will be compelled to testify is greatest in the grand jury situation. See S. Stone & R. Liebman, Testimonial Privileges, § 8.13 (1983). This is true because of the Supreme Court‘s holding in Branzburg12 that the first amendment does not protect a journalist from being compelled to provide information to a grand jury. Ibid. In so holding the Branzburg court considered the secrecy of the grand jury process as well as its crucial role in determining whether a crime has been committed and protecting citizens from unfounded accusations. Branzburg, supra, 408 U.S. at 686, 699, 92 S.Ct. at 2559, 2665, 33 L.Ed.2d at 643, 650; accord CBS Inc. v. Campbell, supra, 645 S.W.2d 30, 32. The possibility that the defendant‘s cross-examination of the reporter will lead to further, more problematic disclosures does
Further, there is very little that can be done to inhibit expansive cross-examination of a newsperson where, as here, the State is seeking to use the newsperson‘s testimony against a criminal defendant. Although the State intends to question Schuman only about whether he received a call from someone who identified himself as Mayron, it is impossible to conclude that defense counsel will not probe and cross examine the reporter on the circumstances surrounding the call. Likewise, it is difficult to conceive that a trial court would not permit a defendant to elicit such information. Indeed, a court‘s failure to do so would violate the defendant‘s constitutional right to confront hostile witnesses.
IV
In sum, the legislative history and fundamental purposes of the Shield Law along with its plain language and the statutory scheme all compel a finding that Schuman did not waive his
Accordingly, the judgment of the Appellate Division is reversed.
For reversal — Chief Justice WILENTZ and Justices CLIFFORD, HANDLER, POLLOCK, O‘HERN, GARIBALDI and STEIN — 7.
For affirmance — None.
Notes
Evid.R. 37 reads as follows:
A person waives his right or privilege to refuse to disclose or prevent another from disclosing a specified matter if he or any other person while the holder thereof has (a) contracted with anyone not to claim the right or privilege or, (b) without сoercion and with knowledge of his right or privilege, made disclosure of any part of the privileged matter or consented to such a disclosure made by anyone.
A disclosure which is itself privileged or otherwise protected by the common law, statutes or rules of court of this State, or by lawful contract, shall not constitute a waiver under this section. The failure of a witness to claim a right or privilege with respect to one question shall not operate as a waiver with respect to any other question.
Evid.R. 27 then read as follows:
Subject to Rule 37, a person engaged on, connected with, or employed by, a newspaper has a privilege to refuse to disclose the source, author, means, agency or person from or through whom any information published in such newspaper was procured, obtained, supplied, furnished, or delivered.
L. 1977, c. 253, § 1, amended the prior Rule 27, supra note 3, in the following manner:
Subject to Rule 37, a person engaged in, connected with, or employed by a newspaper news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated has a privilege to refuse to disclose, in any legal or quasi-legal proceeding or before any investigative body including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative committee, or elsewhere.
a. The source, author, means, agency or person from or through whom any information published in such newspaper was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated, or delivered; and
b. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated.
The provisions of this rule insofar as it relates to radio or television stations shall not apply unless the radio or television station maintains and keeps open for inspection, for a period of at least 1 year from the date of an actual broadcast or telecast, an exact recording, transcription, kinescopic film or certified written transcript оf the actual broadcast or telecast.
[
This statute reads as follows:
a. To sustain a claim of the newsperson‘s privilege under Rule 27 the claimant shall make a prima facie showing that he is engaged in, connected with, or employed by a news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated, and that the subpoenaed materials were obtained in the course of pursuing his professional activities.
b. To overcome a finding by the court that the claimant hаs made a prima facie showing under a. above, the party seeking enforcement of the subpoena shall show by clear and convincing evidence that the privilege has been waived under Rule 37 (C.2A:84A-29) or by a preponderance of the evidence that there is a reasonable probability that the subpoenaed materials are relevant, material and necessary to the defense, that they could not be secured from any less intrusive source, that the value of the material sought as it bears upon the issue of guilt or innocence outweighs the privilege against disclosure, and that the request is not overbroad, oppressive, or unreasonably burdensome which may be overcome by evidence that all or part of the information sought is irrelevant, immaterial, unnecessary to the defense, or that it can be secured from another source. Publication shall constitute a waiver only as to the specific materials published.
c. The determinations to be made by the court pursuant to this section shall be made only after a hearing in which the party claiming the privilege and the party seeking enforcement of the subpoena shall have a full opportunity to present evidence and argument with respect to each of the materials or items sought to be subpoenaed.