In Re Vrazo Subpoena
Petitioner, a reporter with a Philadelphia newspaper, the Bulletin, moves to quash a subpoena requiring her to appear and testify before the Camden County Grand Jury. R. 1:9-1 and 2. Fawn Vrazo is a Pennsylvania resident and her appearance was
The operative facts are not in dispute. The Camden Grand Jury is investigating allegations of theft by deception,
By consent, the appearance date of the subpoena has been continued until the decision on this motion to quash. Petitioner claims the protection of the newsperson‘s privilege, Evid.R. 27 (
I. The Constitutions
The First Amendment to the United States Constitution guarantees freedom of the press. So does Article I, paragraph 6 of
The issue in these cases is whether requiring newsmen to appear and testify before state or federal grand juries abridges the freedom of speech and press guaranteed by the First Amendment. We hold that it does not [Id., 408 U.S. at 667, 92 S.Ct. at 2649, 33 L.Ed.2d at 631 (1972)]
Justice White‘s majority opinion additionally stated:
There is also merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards in light of the conditions and problems with respect to the relations between law enforcement officials and press in their own areas. It goes without saying, of course, that we are powerless to bar state courts from responding in their own way and construing their own constitutions so as to recognize a newsman‘s privilege, either qualified or absolute. [Id. 408 U.S. at 706, 92 S.Ct. at 2665, 33 L.Ed.2d at 654 (1972)]
Although the claim was advanced in In re Bridge, 120 N.J. Super. 460 (App.Div. 1972), certif. den. 62 N.J. 80 (1972), cert. den. 410 U.S. 991, 93 S.Ct. 1500. 36 L.Ed.2d 189 (1973) no New Jersey court has even construed our state constitutional guaranty of liberty of the press to provide a reporter‘s privilege. It is also unnecessary to address such an inquiry at this time, because our Legislature has enacted a “shield law.”
II. The Shield Law
Statutes in a number of jurisdictions grant newspersons privileges, of varying breadth and nature, not to disclose sources or information obtained in their professional capacity. Annotation, “Privilege of Newsgatherer Against Disclosure of Confidential
Subject to Rule 37, a [newsperson] ... has a privilege to refuse to disclose ... to, any ... grand jury ...
a. The source ... from or through whom any information was procured, obtained, ... delivered; and
b. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated.
...
Unless a different meaning clearly appears from the context of this act, as used in this act:
...
h. “In the course of pursuing his professional activities” means any situation, including a social gathering, in which a reporter obtains information for the purpose of disseminating it to the public, but ... does not include any situation in which a reporter is an eyewitness to, or participant in, any act involving physical violence or property damage.
Evidence Rule 37,2 referred to in our shield law, but applicable also to privileges of other than a newsperson, provides in pertinent part:
A person waives his right or privilege to refuse to disclose ... a specified matter if he ... (b) without coercion and with knowledge of his right or privilege, made disclosure of any part of the privileged matter ...
A disclosure which is itself privileged or otherwise protected by the common law, statutes or rules of court of this State ... shall not constitute a waiver under this section....
As already noted, a reporter had no privilege at common law. Branzburg v. Hayes, supra; In re Grunow, 84 N.J.L. 235 (Sup. Ct. 1913). A predecessor statutory privilege,
Subject to Rule 37[2], 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.
The breadth of the “information” or “b” privilege is also clear from the legislative history of our shield laws. Although there is no record of any committee or other legislative hearings or reports on Senate Bill 322 that became our present Evidence Rule 27 (see footnote 1, supra), there is an absolute veto message of Governor William T. Cahill, dated March 2, 1973, that relates to a predecessor Senate Bill 1121 and illuminates the
...
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 [so] obtained in the course of pursuing his professional activities whether or not it is disseminated.
Governor Cahill‘s veto message noted that the privilege would extend to any reporter‘s eyewitnessing of a crime. It also said that the bill was an immediate and compassionate reaction to an incarceration of a newspaperman-which doubtless referred to the situation in the Bridge case, supra. The message did not specifically mention another important point, but the bracketed “so” in Senate 1121 makes it clear that the original form of the proposed legislation would have limited the “information” privilege to that obtained from the privileged source. By deleting the word “so,” a qualified privilege would have arguably been converted to an absolute “information” privilege.
The foregoing makes it most probable that the Legislature in enacting Senate 322, and Governor Brendan T. Byrne in signing the amendment to Evidence Rule 27 into law on October 5, 1977 (see footnote 1, supra), were fully aware that the shield law was being extended from a “source” privilege to additionally an “information” privilege that was not limited to information obtained from a confidential source. The word “so” in the original form of Senate 1122 was omitted from Senate 322. Both the Legislature and Governor Byrne were aware, of course, that the “information” privilege was qualified by the clause and subsequent limiting definition of the words, “in the course of pursuing his professional activities“. Additionally, the semicolon between the “source” or subparagraph “a” privilege of Senate 322 and the “information” or subparagraph “b” privilege
Finally, the prosecutor supports enforcement of the subpoena by citing the “eyewitness” exception to the privilege otherwise pertaining to news or information obtained by a reporter “in the course of pursuing his professional activities.” Possibly the Legislature recalled Governor Cahill‘s veto message as to Senate 1121 in 1973. In any event, Senate 322, in the form ultimately enacted into our current shield law, excluded from the privilege information arising out of a situation where a reporter is an eyewitness to any “act involving physical violence or property damage.” This choice of language makes it clear that the Legislature did not mean to qualify the privilege in all eyewitness situations-but nowhere is there any definition of the terms in this limiting phrase. The prosecutor argues that Vrazo‘s reported observations, of workers at home while being paid to work, fall within the clause-the theory being that theft of public funds by deception constitutes “property damage.” The reporter, of course, contends that such an interpretation strains the plain meaning of the statute. This issue, therefore, is one of statutory construction.
In determining the meaning of words used by the Legislature the overriding principle of statutory construction is that in the absence of an explicit indication of special meaning, words will be given their ordinary and well-understood meaning. Service Armament Co. v. Hyland, 70 N.J. 550, 556 (1976). In this same case Justice Clifford also noted that beyond the threshold examination of the plain meaning of language used in a statute containing an exception to a comprehensive statutory scheme, guidance should come from both the legislative intent and the general principle that exceptions in a legislative enactment are to be strictly but reasonably construed, consistent with the
In reading and interpreting a statute, primary regard must be given to the fundamental purpose for which the legislation was enacted. Where a literal rendering will lead to a result not in accord with the essential purpose and design of the act, the spirit of the law will control the letter. This doctrine permeates our case law. [at 338].
And as stated by Justice Jacobs in Jersey City Chap. Prop. Owners, etc., Assoc. v. City Council, 55 N.J. 86 (1965):
When all is said and done, the matter of statutory construction here will not justly turn on literalisms, technisms, or the so-called formal rules of interpretation; it will justly turn on the breadth of the objectives of the legislation and the commonsense of the situation. [at 100].
In common parlance the words “physical violence or property damage” connote personal injury or tangible property damage resulting from the exertion of force. They do not connote what is involved here-the alleged stealing of time or money that has been characterized as theft by deception and which happens to be located under Part 2, “Offenses Against Property,” of the New Jersey Code of Criminal Justice. The acts might well be characterized as constituting a number of crimes located under Part 4, “Offenses Against Public Administration,” which would further befog the issue.
III. Conclusion
Notwithstanding the foregoing, the Legislature might well re-examine our shield law, just as it did following the Farber case, supra, and which resulted in amendments reviewed by Chief Justice Wilentz in his opinion for the majority in the Boiardo case, supra. Both the “waiver” and “exception” clauses hereinabove referred to could use further legislative clarification.
The granting of a newsperson‘s privilege is a matter for the Legislature and not for the courts, as pointed out by Judge Collester in the Bridge case, supra at 468. The history of oppression and censorship of the press is world-wide and spans centuries.5 The need for a free and robust press, protected by a newsperson‘s privilege, has been fully documented by Justice Pashman in his dissent in Farber, as well as the dissenters in Branzburg. The conflicting compelling interest, of course, is the need by a grand jury of all relevant evidence when properly investigating criminal conduct, as set forth by Justice Mountain for the majority in Farber, and in the majority
The subpoena is quashed.