The opinion of the court was delivered by: Munson, District Judge.
MEMORANDUM-DECISION AND ORDER
Before the court is a motion to quash subpoenas served by the
United States government on three newspaper reporters. The
three reporters are Dale Seth, Lori Duffy and Jeffrey Bachman.
Seth is employed by the Oneida Daily Dispatch; Duffy works for
the Syracuse Post-Standard; and Bachman is a former reporter
for the Post-Standard. The motion which they bring raises the
complex issue of the extent of a reporter's qualified first
amendment privilege.
The underlying case is criminal. It stems from an indictment
which alleges criminal acts occurred on the Oneida Indian
Territory (the "Territory") located in the City of Oneida, New
York. The criminal allegations in the indictment include
embezzlement and stealing, rioting, arson, assault, contempt
and perjury. The centerpiece of the acts alleged is the burning
down of a bingo hall on the Territory, which occurred on
February 21, 1988.
The government has served subpoenas ad testificandum upon
three newspaper reporters who reported on the Oneida Indian
conflict as it unfolded. The reporters are subpoenaed because
they reported statements made by several defendants in this
case over a period of time from February 1, 1988 through March
12, 1989. The government, through Assistant U.S. Attorney John
Brunetti, has stated that it merely seeks to have the reporters
testify that the defendants made the statements reported in the
newspapers.*fn1 The reporters seek to quash the subpoenas,
asserting a qualified first amendment privilege.*fn2
Movants have acknowledged that the testimony which the
government seeks is relevant. Reply Memorandum, Docket ("Doc.")
No. 109, at 5. Even so, they have not expressly stated the
respect in which they view the sought after testimony to be
probative. The published statements which the government seeks
to confirm are included in the indictment as overt acts in
Count III. Count III charges 10 defendants with conspiring to
travel in interstate commerce or to use a facility of
interstate commerce with the intent to incite riot and commit
an act of violence in furtherance of a riot in violation of
18 U.S.C. § 2101. Consequently, some of the focus of the
submissions filed on the motion to quash has been on an
interpretation of § 2101.
The instant motion was argued on the morning of March 1,
1990. In the interest of removing potential roadblocks on the
eve of trial, the court issued a decision from the bench that
afternoon. This Memorandum-Decision and Order is substantially
similar to the bench decision delivered on March 1, 1990.
An appropriate place to commence discussion of the reporters'
motion is with reference to the Supreme Court's seminal
decision on the issue of reporters' testimonial privilege,
Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626
(1971). In Branzburg the Court determined that reporters could
be forced to testify before criminal grand juries. Many lower
court cases dealing with the issue of a reporter's privilege
not to testify in civil and criminal cases of course have cited
the Branzburg case. However, the variety of interpretations of
Branzburg is astonishing. Thus, some courts state that
Branzburg stands for the proposition that reporters enjoy no
absolute immunity before a criminal grand jury. See, e.g., von
Bulow by Auersperg v. von Bulow, 811 F.2d 136, 142 (2d Cir.),
cert. denied, 481 U.S. 1015, 107 S.Ct. 1891, 95 L.Ed.2d 498
(1987); Continental Cablevision, Inc. v. Storer Broadcasting
Co., 583 F. Supp. 427, 432 (E.D.Mo. 1984). At least one other
court has paraphrased the holding of the Branzburg case in an
affirmative manner which contrasts with the characterization in
von Bulow and Continental Cablevision, but does not contradict
that characterization. That court stated that Branzburg stands
for the proposition that reporters do enjoy a qualified
immunity before a criminal grand jury. See Pinkard v. Johnson,
118 F.R.D. 517, 520 (M.D.Ala. 1987). Yet a third breed
conceives of Branzburg as indicating that reporters are not
entitled to even a qualified immunity before a criminal grand
jury. See, e.g., O'Neill v. Oakgrove Const., Inc., 71 N.Y.2d
521, 528, 528 N.Y.S.2d 1, 4, 523 N.E.2d 277, 280 (1988);
Reporters Comm. for Freedom of the Press v. American Telephone
& Telegraph Co., 593 F.2d 1030, 1062 n. 107 (D.C. Cir. 1978),
cert. denied, 440 U.S. 949, 99 S.Ct. 1431, 59 L.Ed.2d 639
(1979).
The confusion seems natural in light of the fact that
Branzburg is a five/four decision in which the fifth vote was
cast by Justice Powell who not only joined in the majority's
opinion but wrote a separate concurrence. On the one hand, the
tack taken by the majority opinion is not receptive to a
reporter's asserted privilege. See, e.g., 408 U.S. at 698, 92
S.Ct. at 2665 ("We are admonished that refusal to provide a
First Amendment reporter's privilege will undermine the freedom
of the press to collect and disseminate news. But this is not
the lesson history teaches us."); Id. at 703-04, 92 S.Ct. at
2668 ("The administration of a constitutional newsman's
privilege would present practical and conceptual difficulties
of a high order."). On the other hand, the concurrence
advocates a balancing test in determining whether a reporter
should be accorded a privilege. Consequently, in at least one
respect, Justice Powell agrees with the four dissenters,
prompting a leading commentator to observe: "Despite the
holding in Branzburg and the discouraging tone of the majority
opinion, the lower federal courts have consistently read the
case to support some kind of qualified privilege for reporters"
because five Justices apparently
believed "that the Constitution may at times protect the
confidentiality of a journalist's sources." L. Tribe,
American Constitutional Law, § 12-22, at 972 (2d ed. 1988).
This court, located as it is in the Second Circuit, is bound
to follow the authority of that Court of Appeals. Thus, in an
effort to clarify the confusion left in the wake of
Branzburg the court has turned to Second Circuit precedent. The
Circuit has supplied express statements which are helpful, yet
not in an ultimate sense. First, and importantly, the Second
Circuit has held that a reporter may invoke his or her
qualified privilege in either a civil or criminal setting.
United States v. Burke, 700 F.2d 70, 77 (2d Cir.), cert.
denied, 464 U.S. 816, 104 S.Ct. 72, 78 L.Ed.2d 85 (1983).
Further, the court, per Judge Kaufman, indicated in an earlier
decision that a reporter's invocation of a privilege is not as
likely to be successful in a criminal setting as it is in a
civil setting. Baker v. F & F Investment, 470 F.2d 778, 784 (2d
Cir. 1972), cert. denied, 411 U.S. 966, 93 S.Ct. 2147, 36
L.Ed.2d 686 (1973) (distinguishing Branzburg by stating "[n]o
such criminal overtones color the facts of this civil case").
Questions, however, remain. In Burke the court reviewed the
appeal of a criminal case in which the district court had
refused to permit a criminal defendant to subpoena the work
product, notes, etc., of a Sports Illustrated reporter. The
Burke court upheld the lower court's decision in that regard
because the information would have been used to impeach the
credibility of a witness whose credibility already had been
significantly impeached by other means at trial. In other
words, the documents sought were cumulative. Curiously, and
without explanation from Judge Meskill who wrote for the court
in Burke, the lower court permitted the defendant to subpoena
the reporter himself, and that reporter testified over his
counsel's objection. Although the decision to permit the
subpoenaing of the reporter was not appealed, the Burke
decision leaves the specter that a reporter's privilege is more
likely to be honored with respect to a subpoena duces tecum
rather than a subpoena ad testificandum.
This court holds that a qualified first amendment privilege
applies to the present situation. The extent of the privilege
is governed by the circumstances. Branzburg, 408 U.S. at 710,
92 S.Ct. at 2671 (Powell, J., concurring); see discussion
infra. Thus, on one end of a continuum, several courts have
held that "[a] reporter's observations of a public place or
event are no different than that of other individuals; and as
to this, they are not entitled to constitutional protection."
See, e.g., Alexander v. Chicago Park Dist., 548 F. Supp. 277
(N.D.Ill. 1982). Absent observations of public events, several
factors diminish the weight to be accorded the qualified
privilege claimed by a newspaper reporter. As already noted,
the Second Circuit has held that the privilege is diminished
when the trial before which the reporter is to testify is
criminal. Baker, 470 F.2d at 784; Driscoll v. Morris, 111
F.R.D. 459, 461 n. 6 (D.Conn. 1986). Second, the privilege is
diminished when the subpoenaing party does not seek testimony
of a confidential nature. Bruno & Stillman, Inc. v. Globe
Newspaper Co., 633 F.2d 583, 597 (1st Cir. 1980); see also In
re Petroleum Products Antitrust Litigation, 680 F.2d 5 (2d Cir.
1982) (per curiam), cert. denied, 459 U.S. 909, 103 S.Ct. 215,
74 L.Ed.2d 171 (1982). Third, as hinted previously, the
privilege does not carry as much weight when the reporter
himself is subpoenaed, as opposed to when a party seeks to
compel the reporter to produce unpublished documents. Maughan
v. NL Industries, 524 F. Supp. 93, 95 (D.D.C. 1981). Fourth, if
the questions put to a reporter are narrowly limited, then
subpoenaing a reporter is more acceptable. N.L.R.B. v.
Mortensen, 701 F. Supp. 244, 250 (D.D.C. 1988). Concomitantly,
certain questions will not interfere with a reporter's first
amendment rights as much as other questions. Continental
Cablevision, 583 F. Supp. at 435. One court has provided
examples of questions which will not set off many first
amendment alarms and bells. These are "whether [an article] was
truly published on the date asserted and
whether [the reporter] did in fact interview [the defendants]
. . . before writing the article." Maughan, 524 F. Supp. at 95.
In addition, at least one court has determined that a
reporter's qualified privilege is waived if he or she submits
to an interview or files an affidavit detailing the substance
of the conversation with respect to which he is asked to
testify. Pinkard, 118 F.R.D. at 523.
Finally, in examples not relevant to the instant case, courts
have held that a reporter waives his or her privilege when that
reporter sues another. Driscoll v. Morris, 111 F.R.D. 459
(D.Conn. 1986). In addition, a reporter's privilege is not
given as much weight in a libel case against that reporter as
in other civil cases. See, e.g., Herbert v. Lando,
441 U.S. 153, 99 S.Ct. 1635, 60 L.Ed.2d 115 (1979); Garland v. Torre,
259 F.2d 545 (2d Cir.), cert. denied, 358 U.S. 910, 79 S.Ct.
237, 3 L.Ed.2d 231 (1958). A similar recitation of factors
which diminish the strength of a reporter's qualified privilege
has prompted one district court to observe that ...