Sprague v. WalterSprague v. Walter
- Reporters:
- , , ,
- Before:
- Nix
OPINION
NIX, Chief Justice.This is an appeal by allowance from an order of the Superior Court granting a new trial in a libel action against a newspaper. The issues presented arise from evidentiary rulings by the trial court. Review was granted because the issues herein implicate the relationship between the federal and state constitutional provisions relating to free speech and reputation and the statutorily created privilege conferred upon a media defendant, commonly known as the “Shield Law.” It has become increasingly apparent that the confines of that privilege must be more clearly delineated. It is appropriate to begin with a summary of the procedural history which provided the setting for the trial rulings that are here for consideration. 1
In 1973 one Richard A. Sprague, Esquire, commenced a libel action against Philadelphia Newspapers, Inc. (“PNI”), publisher of the
Philadelphia Inquirer,
a daily newspaper of general circulation. Sprague’s complaint, filed in the Court of Common Pleas of Philadelphia County, alleged
The first series of Inquirer articles concerning Sprague, published in late March of 1973, indicated that he, while First Assistant District Attorney, had participated in a certain illegal wiretapping scheme. In April of 1973, the Inquirer followed with a series of articles which related that Sprague, at a time ten years prior when he was chief of the homicide division, had prevented the bringing of homicide charges against the son of a certain high official of the Pennsylvania State Police. This second series of articles conveyed the impression that Sprague’s treatment of the homicide case was motivated by personal favoritism toward the official. The Inquirer articles implicating Sprague in the wiretapping episode were written partly by reporter Greg Walter and partly by reporter Howard Shapiro; the articles about the ten-year old homicide case were co-authored by Walter and another reporter, Kent Pollock.
The libel action here involved proceeded to trial before a jury; those proceedings lasted more than six weeks and generated over four thousand pages of transcribed testimony. The plaintiff, Sprague, presented evidence tending to show that the imputations of wrongdoing set forth about him in the
Inquirer
articles were false. He also produced evidence which, if believed, would support an inference that the newspaper articles were published with knowledge of their falsity or with reckless disregard of their truth or falsity,
i.e.,
that the statements were made with “actual
To meet the case put on by the plaintiff, PNI sought to negate an inference of “actual malice.” To that end, the defense undertook to establish that the newspaper articles were not statements made with knowledge of their falsity, or made with reckless disregard of whether they were false or not, but rather were good-faith statements honestly based on information supplied by reliable and confidential “sources.” In support of this contention, the first witness called by the defense was reporter Kent Pollock, co-author of some of the articles.
In the course of Pollock’s testimony on direct examination, defense counsel alluded to one of the articles concerning the homicide case and asked the witness to relate how he obtained the information put forth in the article. In response, Pollock began by stating that the information had come from “an individual” to whom he had spoken. When the reporter sought to continue by recounting
what
the unnamed person had told him, the trial judge interrupted with an inquiry as to
the informant’s identity.
Pollock answered the court’s question by stating: “This is a person who was very close to [the suspect’s] family, sir, who is a source of mine.” At that point, counsel for the plaintiff demanded that the witness reveal the identity of the mentioned informant. Defense counsel objected to the demand, asserting that reporter Pollock had a legal privilege, embodied in Pennsylvania’s Shield Law, not to divulge his confi
During the in camera hearing before the trial court, defense counsel asserted • that the Shield Law permitted reporter Pollock to testify fully as to the information obtained from his source without having to disclose the source’s identity, and that no adverse inference or other sanction should result from the exercise of the privilege. The defendant further contended that the privilege conferred by the Shield Law is one mandated by the First Amendment of the United States Constitution, and that if the exercise of the privilege impedes a plaintiff’s ability to question the reliability or genuineness of a newsman’s source the balance should be struck to favor the free flow of information to the media. The plaintiff, on the other hand, argued that the Shield Law did not demand the interpretation sought by the defendant, and that the privilege is merely an investigative tool which is dissipated once the information from the source is put into print and published. Counsel for the plaintiff further argued that the remedy for failure to reveal a source should be an “adverse inference” charge by the court.
Upon considering the competing arguments, the trial court ruled in favor of the plaintiff. The court concluded that the Shield Law was inapplicable and that the defendant had no constitutional right to conceal the identity of its sources. Based on that determination, the court ordered the defendant to disclose its sources. The order further stated:
If the defendant chooses not to reveal their [sic] sources, it is precluded from defending this action on the grounds that the articles in the suit, or any portion thereof, were based upon information received from a reliable, but undisclosed source.
In order to implement this Order, all evidence of what information defendants [sic] received from allegedly reliable, but undisclosed sources, shall be excluded.
Because the defendant had elected not to disclose its sources, the trial judge, at the time of charging the jury, applied the sanction prescribed in his order: all evidence derived from such sources was to be excluded from the jury’s consideration. The jury was instructed to disregard all testimony of defense witnesses as to what information had been obtained from unnamed sources. The court then proceeded to specify for the jurors the items of evidence to be stricken:
(1) The contents of a document, mentioned in one of the articles, purportedly linking plaintiff Sprague to the illegal wiretapping scheme. This document was testified to by reporter Pollock, but he refused to reveal its source.
(2) Testimonial reference by Pollock to a statement in one of the articles that Sprague had boasted of his influence with the father of the suspect in the homicide case. Pollock refused to disclose the identity of the person who supposedly heard Sprague’s remarks.
(3) Testimonial reference by Pollock to a statement in one of the articles that Sprague had spent an entire day at the home of the father of the homicide suspect. Pollock refused to disclose the source of the statement.
(4) Testimonial reference by Pollock to information he allegedly received from a “contact” close to the family of the homicide suspect. Pollock declined to identify the “contact.”
(5) Testimonial reference by reporter Robert Terry to information received from an unnamed source about the homicide case. Terry refused to identify the source.
The trial court’s charge was designed to implement its earlier ruling as to the consequences of a refusal by PNI to
As noted, Inquirer reporter Greg Walter had authored some of the allegedly defamatory articles and had co-authored others. He also had been credited with doing most of the investigative work which preceded them. According to the plaintiff, the articles were shaped in large part by Walter’s ill-will toward him. It is thus apparent that Walter was a key figure in the litigation. However, he was never called as a witness at trial. Prior to the commencement of trial, defense counsel stated to the court that Walter could not appear as a witness, for reasons of health. Because of that representation, plaintiff’s counsel, in his case-in-chief, resorted to reading into the record segments of a partially completed deposition which had been taken from Walter. However, at a later point in the trial, counsel for the plaintiff expressed doubts about Walter’s physical infirmity; and indicated to the court that the reporter was then currently travelling about the state and writing newspaper articles. At the plaintiff’s request the trial court issued a subpoena to secure the courtroom presence of Greg Walter, so that a determination could be made as to his physical condition.
Walter complied with the subpoena and appeared in court at the requested time with his physician, Dr. Fred D. Holford. At that point, the defense presented the court with a letter from Dr. Holford stating that he had performed a second arterial coronary bypass on Walter, and that it would be medically inadvisable for the reporter to undergo the stress of being a trial witness. The defense also offered to have Dr. Holford testify
in camera;
but that request was denied by the court, ruling that such evidence had to be presented in open court before the jury. In the view of the trial judge, the question of whether Walter should be deemed unavailable for reasons of health
Although Walter himself remained in the courtroom for the rest of the trial, neither party called him to testify about the newspaper articles. However, the trial court accepted the plaintiff’s argument that Walter was within the control of PNI, that Walter’s testimony properly would have been a part of PNI’s case, and that PNI had failed to establish that the reporter was medically unavailable as a witness. The court, having accepted the above assertions, proceeded to grant the plaintiff’s request for a “missing witness” or “adverse inference” charge. That is, the court instructed the jury that the failure of the defendant, PNI, to call Walter as its witness permitted an inference that his testimony would have been unfavorable to the defendant.
The jury’s deliberation of the case resulted in a verdict for the plaintiff and an award of $4,500,000. The award consisted of $1,500,000 as compensatory damages and $3,000,000 as punitive damages. PNI followed with motions for a judgment non obstante verdicto and for a new trial. Those motions were denied by a court en banc. Prom the order denying post-trial relief PNI appealed to the Superior Court, which, upon review, affirmed in part and reversed in part.
The Superior Court determined that the common pleas court was correct in denying PNI’s motion for a judgment n.o.v. In that regard, the Superior Court extensively and thoroughly recounted the evidence, and concluded that the plaintiff’s proof was sufficient to create a jury question as to defamation, falsity and “actual malice,” even under the standard of proof dictated by
New York Times Co. v. Sullivan,
376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964). However, with regard to the applicability of the Shield Law and the propriety of the “adverse inference” charge relating to reporter Greg Walter, the Superior Court decided that the trial court had committed reversible error in both
Our first departure with the analysis employed by the Superior Court in its resolution of the matter is its “broad” interpretation of the privilege provided under the Shield Law. Section 5942 of the Judicial Code,
Confidential communications to news reporters
(a) General rule. — No person engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news, shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit. 3
The clear language of
An inference can only be appropriately drawn when the predicate upon which it rests supports its validity.
See Henderson v. National Drug Co.,
343 Pa. 601, 23 A.2d 743 (1942);
Hodgson v. Bigelow,
335 Pa. 497, 7 A.2d 338 (1939);
Hornick v. Bethlehem Mines Corp.,
307 Pa. 264, 161 A. 75 (1932). In contrast, the Shield Law privilege was designed to encourage communication from even the most unsavory sources. To assume the veracity of the information supplied would presume the trustworthiness of the source and the validity of the informant’s judgment in assessing the facts upon which the information was based. Such a proposition would require not only a blind faith in the integrity of the informant but also in the accuracy of his judgment. The bearing of false witness has always been abhorrent to
In attempting to justify its adoption of an expansive reading of our Shield Law provision, the Superior Court relied heavily upon the language appearing in our decision in In re Taylor, supra, and its own ruling in Hatchard v. Westinghouse Broadcasting Co., 350 Pa.Super. 1, 504 A.2d 211 (1986). However, we subsequently reversed the Superi- or Court’s Hatchard decision and modified the expansive interpretation of the Shield Law as set forth in Taylor. Hatchard v. Westinghouse Broadcasting Co., 516 Pa. 184, 532 A.2d 346 (1987). We adhere to that modified view today in holding that the privilege provided under the Shield Law was not intended to allow a media defendant to use any of its sources and information as proof of verification or evidence of responsibility when it opts to rely upon the privilege.
However, the fact that the privilege does not carry with it a concomitant inference either as to the reliability of the information conveyed or the media’s responsibility in relying upon it, does not foreclose the media defendant from introducing extrinsic evidence to establish the validity of the information or to demonstrate that they acted responsibly in the dissemination of the information. By undertaking the introduction of such evidence, the media defendant is not required to abandon its Shield Law privilege; nor does it relieve the plaintiff of the burden of proof. This
Having determined the legislative intent regarding the privilege and its effect in the instant setting, we now must turn to the question as to whether either federal or state constitutional mandate requires something more in this context.
Under the United States Supreme Court’s decision in
New York Times Co. v. Sullivan, supra,
and its progeny, a public official may not recover damages for a defamatory falsehood relating to his official conduct “unless he proves that the statement was made with ‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” 376 U.S. at 279-280, 84 S.Ct. at 726;
Time, Inc. v. Pape,
401 U.S. 279, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971);
St. Amant v. Thompson,
390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968);
see Monitor Patriot Co. v. Roy,
401 U.S. 265, 91 S.Ct. 621, 28 L.Ed.2d 35 (1971) (rule applies to publication concerning candidate for public office);
Garrison v. Louisiana,
379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964) (rule applies to criminal prosecution for defamation of a public official). In the
New York Times
decision the Court also placed the burden of proving both the falsity and the “actual malice” of the allegedly defamatory statements upon the public official-plaintiff. The Court specified that such a plaintiff could not rely on former common law presumptions to satisfy those burdens. 376 U.S. 279, 283-284, 84 S.Ct. at 727-728.
4
This mandate requires the public official-plaintiff to carry both the burdens of production and persuasion.
5
Since we interpret the
Times
mandate as prohibiting the shifting of either of these
The difficulty of a public official-plaintiff in establishing malice in an action against a media defendant is evidenced in the United States Supreme Court’s decision in St. Amant v. Thompson, supra. In St. Amant the Court emphasized that the burden requires more than a consideration of whether a reasonably prudent man would have published the article without further investigation, but rather requires the presentation of “sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” 390 U.S. at 731, 88 S.Ct. at 1325. Recognizing the license given to the media under this standard, the Court justified its position as follows:
Neither lies nor false communications serve the ends of the First Amendment, and no one suggests their desirability or further proliferation. But to insure the ascertainment and publication of the truth about public affairs, it is essential that the First Amendment protect some erroneous publications as well as true ones. We adhere to this view and to the line which our cases have drawn between false communications which are protected and those which are not.
Id. at 732, 88 S.Ct. at 1326.
It is clear that the Supreme Court has set forth the parameters necessary to satisfy the dictates of the First Amendment. Any further action on our part could run
We therefore conclude that the legislative intention was not to confer the broad interpretation to the Shield Law suggested by the Superior Court, that it is not required by the federal constitution, and that it would be repugnant to our own constitution.
Having concluded that the General Assembly by its passage of
While the reporter’s information is properly admitted and no adverse inference may be drawn from the invocation of the Shield Law, the trial court must also instruct the jury that the invocation of the Shield Law does not establish an affirmative inference either as to the reliability of the source or as to the validity of the information received. The plaintiff is free to introduce rebuttal evidence and/or argue that the record does not disclose any evidence to support the reliability of the information received or the credibility of the source that supplied that information.
Because the burden of proof remains upon the plaintiff throughout the trial, the defendant may choose not to offer evidence and may still prevail if the jury concludes that plaintiff has failed to meet the burden. If a defendant chooses to dispute the plaintiff’s evidence, then that evidence in response must be critically evaluated. This is not a shifting of the burden; rather it is evidence that must be evaluated by the fact finder in determining whether the burden of proof has been met by plaintiff. The trial court’s responsibility in its charge is to assist the fact finder in understanding its role in evaluating the evidence presented.
E.g., Smith v. Clark,
411 Pa. 142, 190 A.2d 441 (1963). In discharging this responsibility, the trial court in its instructions should make clear for the jury, (a) that the burden of proof remains upon the plaintiff throughout the trial; (b)
Accordingly, for the reasons stated herein, the order of the Superior Court is affirmed.
LARSEN, McDERMOTT and STOUT, JJ., did not participate in the consideration or decision of this case.
Notes
. An extensive recitation of the facts of this case may be found in the Superior Court’s opinion, reported at 357 Pa.Super. 570, 516 A.2d 706 (1986).
. Following the presentation of Sprague’s case-in-chief, a non-suit was granted as to PNI’s corporate owner. As to the other defendants, Sprague entered into a stipulation whereby he would drop them from the case, upon the condition that he be permitted to try the case as if they were still parties.
. Subsection (b) of this provision provides the following exception not relevant to our present inquiry.
(b) Exception. — The provisions of subsection (a) insofar as they relate 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 one year from the date of the actual broadcast or telecast, an exact recording, transcription, kinescopic film or certified written transcript of the actual broadcast or telecast.
42 Pa.C.S. § 5942(b) .
. In Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986), the Court held that the common law presumption of falsity violates the First Amendment even where a newspaper is sued for libel by a private figure.
. We will discuss infra the propriety of the trial court’s adverse inference charge in this context.
. The common law presumptions which were barred in these cases were devices which were designed to shift both or either of the burdens from the plaintiff. Thus, the direction that they not be employed implicitly mandates that the burden must remain throughout upon the public official-plaintiff in a defamation action against a media defendant.
. The objections were made to the hearsay evidence that was permitted in describing the investigation. The trial court overruled these objections on the grounds that this evidence was not to be used for the proof of the facts asserted but rather as evidence of the state of mind of the reporter at that time. See Reproduced Record Vol. V, pgs. 2862(a)-2865(a).
. Subsection (a) of the current Shield Law,
Given the state of defamation law when the 1937 Shield Law was enacted, the conclusion must be drawn that there was no contemplation on the part of the legislature that the statute would present any obstacle to a person seeking redress for injury to his reputation. It was only with the advent of New York Times Co. v. Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), and its decisional offspring, that Pennsylvania’s Shield Law presented a problem for plaintiffs suing media defendants for defamation.
. When this Court decides that a new trial must be granted for reason of a particular error, we do not, as a rule, address other issues that have been presented. However, because the instant matter is a complex one and must be retried, we consider it appropriate to resolve another question which is likely to arise again, namely, the trial court’s “adverse inference” charge relating to reporter Greg Walter. In our view, the issue of whether Walter was medically incapable of being a witness for PNI was one that the trial court itself should have determined, not the jury. Farley v. Southeastern Pennsylvania Transportation Authority, 279 Pa.Super. 570, 421 A.2d 346 (1980). Clearly, if the question were one of a witness’ mental competency to testify, the determination would be one for the trial court to make. E.g., Commonwealth v. Goldblum, 498 Pa. 455, 447 A.2d 234 (1982). We see no reason to apply a different rule where the issue relates to a person’s physical capacity to testify as a witness. In sum, we agree with the Superior Court’s conclusion that the trial judge in the instant case erred in ruling that it was a jury question.