Court: Shield law does not protect reporters' unpublished information when source is public knowledge

By Teri Henning
Pennsylvania Newspaper Association

In a Dec. 19, 2003 decision, the Pennsylvania Supreme Court ruled that two reporters could be compelled to produce unpublished information in the course of a criminal proceeding. In a 5-2 decision, the Court held that the Pennsylvania Shield Law does not protect such information from disclosure where the identity of the source is not confidential. It also held that the First Amendment reporters’ privilege did not protect the information because the Commonwealth met its burden of proving that it had no other source of the information and that the information was crucial to its prosecution. The Court did find that the trial court abused its discretion in imposing $40,000 fines against the reporters, ruling that the court did not use the proper analysis in setting the fines (and remanding this issue to the lower court). 

The case began after Mark Bowden, then with The Philadelphia Inquirer, and Linn Washington Jr., then with The Philadelphia Tribune, separately interviewed Brian Tyson. Tyson had been charged with shooting and killing an alleged drug dealer in his neighborhood and claimed self-defense. After the reporters wrote stories about the incident, prosecutors sought the reporters’ unpublished notes and testimony in an attempt to show that Tyson made inconsistent statements in the course of the interviews. 

The reporters moved to quash the subpoenas, arguing that the information was protected from disclosure under Pennsylvania’s Shield Law and the First Amendment reporters’ privilege. The trial court ordered disclosure and eventually fined each reporter $100 per minute until the end of the trial. By the end of the trial, the penalties totaled $40,000 for each reporter.

After years of litigation, the Supreme Court has now ruled that the Shield Law does not protect unpublished information where the source’s identity is known and disclosure of the information would not reveal any other confidential source. The ruling is significant because it interprets the Shield Law more narrowly than any prior decision. In fact, despite the majority’s insistence to the contrary, the ruling appears to overrule an earlier Pennsylvania Supreme Court decision in which the Court held that reporters’ unpublished information was protected from disclosure even where the source of the information was known. 

The case also raised the important issue of whether there is a First Amendment reporters’ privilege in Pennsylvania. For the time being at least, the answer appears to be yes. The Supreme Court declined to decide this issue, because, among other things, the Commonwealth had not raised it in the court below. The Court “assume[d], without deciding” that the privilege exists, and then ruled that the privilege did not protect the unpublished information because the reporters were the only real source of the information, and the information was necessary to the criminal prosecution.

Obviously, the Supreme Court’s decision in Bowden is disappointing on a number of levels. The potential “chilling” effect that the decision could have on newsgathering is obvious. It is important to realize, however, that the ruling only applies in those cases where a reporter’s information relates only to “known” sources. The Shield Law in Pennsylvania still provides absolute protection where a reporter’s information is from or would disclose a confidential source. With respect to the First Amendment privilege, the Court distinguished between criminal prosecutions and civil proceedings. Based on the analysis by the Court, it should remain difficult for someone to obtain this type of information in a civil proceeding. 

As always, it is critical that newspapers continue to defend their rights to withhold information collected as part of the newsgathering process. Any newspaper asked to turn over published or non-published information to any person or entity should immediately contact its counsel to review its available defenses.