The opinion of the court was delivered by: JACK B. WEINSTEIN
AMENDED MEMORANDUM AND ORDER
The government accuses defendant Babatunde Ayeni, together with nine others, of conspiring to commit and committing credit-card fraud. 18 U.S.C. §§ 1029(a)(3) and (c)(1). Ayeni subpoenaed a videotape produced by employees of CBS News during a lawful search of his apartment by agents of the United States Secret Service. CBS moves to quash the subpoena on First Amendment grounds.
CBS must provide the tape to defendant. The motion to quash is granted only to the extent that CBS may block out the identity of its source within the Secret Service.
A. Warrant, Search and Subpoena
On March 5, 1992, a United States Magistrate Judge issued a warrant authorizing United States Secret Service agents to enter the apartment of defendant Babatunde Ayeni and search for the following specified items:
Quantities of fraudulently obtained credit cards, lists of names and account numbers for such credit cards, credit card receipts, credit card applications, false identification documents, cash, correspondence, checkbooks, bank records, and U.S. Postal Service change of address forms.
Defendant does not challenge the warrant's validity.
The same evening, a group of Secret Service agents executed this warrant. Defendant's wife and child were home but he was not. Shortly after the agents entered defendant's apartment and began their search, two more agents arrived accompanied by a crew from CBS News that included a camera operator and a sound technician. This group entered the apartment and proceeded to film for about twenty minutes. The search continued after the film crew's departure.
The government seized from the apartment only a color photograph of defendant, his wife and child. It was subsequently used for identification.
After he was indicted, defendant learned from the United States Attorney that a CBS camera crew had been present at the search, that a tape existed and that the government did not possess the tape. CBS refused defendant's request for the tape and now moves to quash the subpoena. It has not yet broadcast any part of the tape.
CBS contends that its newsgathering privilege, as embodied in the First Amendment to the United States Constitution, the New York Constitution, and New York Civil Rights Law § 79-h, shields it from the obligation to comply with the subpoena. Defendant counters that the newsgathering privilege does not apply and that, in any event, the privilege is qualified and he can make the showing necessary to defeat it. Defendant contends that he needs the videotape because it may contain information relevant to his motions to dismiss the indictment and to suppress certain evidence, and to his defense at trial.
The tape provides a window into the ordinarily unrecorded events attending the execution of a search warrant in a private person's home. As the tape begins, the CBS crew accompanies two agents to defendant's apartment. The group is admitted by an agent who, along with perhaps five others, is inside the home. Having been caught unawares by the service of process, defendant's wife is wearing a dressing gown. Virtually the instant she sees the new group she says, "Please don't take my picture." She then asks, "Why do you want to take a picture?" Her words and the tone in which they are spoken make it clear that she assumes the camera crew is an authorized governmental participant in the search. As the male newspersons enter the apartment, she retreats into the living room, demanding three times in succession that her picture not be taken. She then cowers, covers her face with a magazine and directs her pre-school son, who is now sitting beside her on a couch, not to look at the camera.
Aside from her avoidance of the camera, defendant's wife does not resist the search and answers the agents' questions as they handle the family's belongings. When the camera crew arrives, the search already is well advanced. The camera moves through the apartment, observing the agents as they open drawers, closets and desks, methodically working their way through every piece of paper, picture, book, file and document in the home. The camera often focuses in tightly on specific pieces of paper, including personal letters, personal banking documents and a paycheck stub of defendant indicating his employer and salary. At one point, the camera lingers on a wall hanging titled "Rules for a Happy Marriage." The agents remove a trunk from a closet and, with the help of defendant's wife who provides two keys necessary to open it, they go through its entire contents. Defendant's young child witnesses much of the search.
Throughout the taped portion of the search, the agent apparently in charge wears a wireless microphone for the benefit of the CBS crew. His comments to the other agents and defendant's wife can be heard clearly. He asks defendant's wife for a photograph of defendant. She points to a large poster of defendant on the wall and the camera focuses in on it as the agents tells the CBS crew, "That's the guy we're looking for." The agents find a snapshot of defendant, his wife and child and the camera also focuses on this picture, which is the one ultimately seized from the apartment. The agent interrogates defendant's wife concerning defendant's whereabouts. He also asks her about the source and means of payment for several watches. She sees the camera and again covers her face with a magazine, saying she does not want to comment.
The agent answers many questions posed by a member of the CBS crew. While standing in the foyer of the apartment, he explains in detail the modus operandi of people who commit credit-card fraud and the tools of the trade. The imputation of defendant's guilt is unmistakable. As he leaves the apartment having found no evidence of credit-card fraud, the agent expresses disappointment that the apartment "looks clean" and a continued belief that defendant is a participant in the conspiracy. The CBS crew and the two agents depart together, leaving the others behind to complete the search. The tape ends with the crew and two agents out on the street.
1. Newsgathering Privilege
Lower courts have embraced the idea that reporters require some First Amendment protections when gathering news. Branzburg's heavy emphasis on the grand jury and the Supreme Court's subsequent silence on the question no doubt encouraged these developments. The Court in Branzburg explicitly recognized that "without some protection for seeking out the news, freedom of the press could be eviscerated." Id. at 681; see also Monica Langley & Lee Levine, Branzburg Revisited: Confidential Sources and First Amendment Values, 57 Geo. Wash. L. Rev. 13 (1988) (describing legacy of Branzburg and arguing for updated and more thorough analysis of reporter's privilege not to reveal confidential sources).
The existence of a limited newsgathering privilege -- applicable in both civil and criminal proceedings, and to nonconfidential materials as well as confidential sources -- has been settled law in the Second Circuit for many years. See, e.g., United States v. Burke, 700 F.2d 70, 77 (2d Cir.), cert. denied, 464 U.S. 816 (1983) (privilege applies to criminal cases to same extent as civil cases and analysis is same); In re Petroleum Prods. Antitrust Litig., 680 F.2d 5, 7 (2d Cir.), cert. denied, 459 U.S. 909 (1982) (document containing confidential sources may be obtained in civil case only upon surmounting stringent test); Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972), cert. denied, 411 U.S. 966 (1973) ("compelled disclosure of confidential sources . . . threatens a journalist's ability to secure information"); United States v. Marcos, 17 Media L. Rep. 2005, 2006-07 (S.D.N.Y. 1990) (privilege founded upon protection of reporters' need to have freedom to develop sources and independence in editorial decisionmaking); Apicella v. McNeil Labs., Inc., 66 F.R.D. 78, 82-86 (E.D.N.Y. 1975) (careful balancing of interests required in case involving discovery rights and reporter's claim of privilege). There is no reason why rules for print reporters should not apply to other media -- ...