Alan Finder N.Y. Times News Service
NEW YORK — At least five major newspapers are preparing to join NBC in challenging a recent federal appeals court ruling that would make it easier, in some circumstances, to subpoena reporters’ notes, videotapes that were not broadcast and other unpublished material in federal lawsuits.
The decision, released last week by the 2nd U.S. Circuit Court of Appeals, in Manhattan, overturned what many newspapers and network news divisions had considered a long-standing principle in federal law.
The news organizations had argued that when people sought unpublished or unbroadcast material that was gathered from nonconfidential sources, they could do so only after proving the material was essential to their lawsuit and could be obtained nowhere else. But a three-judge panel for the appeals court ruled, in a case involving NBC News, that such a qualified privilege for journalists did not exist in federal law. The decision does not affect a related federal principle that protects news organizations from disclosing information gathered from confidential sources.
News organizations are also protected in New York state courts from disclosing unpublished material from both confidential and nonconfidential sources. The New York Times, The Wall Street Journal, The Daily News, Newsday, The New York Post and other newspapers have decided to challenge the appellate decision, and other television networks are likely to do so, too, lawyers involved in the effort said. The newspapers plan to file an amicus brief, asking the three judges to reconsider their ruling and the full 2nd Circuit to consider the case. Several other federal appeals courts have recognized the qualified privilege involving nonconfidential sources, lawyers said. “As it currently stands, trying to get access to a reporter’s files, all his news gathering materials, is a last resort for litigants because of the qualified privilege,” said Laura Handman, a lawyer representing the newspapers. “We’re concerned that it is going to become a first resort. It is going to affect whether sources are going to want to talk to reporters.” NBC said it also would ask the full appellate court to review the case. “We were extremely disappointed in the ruling and believe the Constitution protects news gathering material,” said Alexandra Constantinople, an NBC spokeswoman. The case involved a segment on the show Dateline that was broadcast in January 1997 and examined whether law enforcement officers in Louisiana had pulled over drivers on highways because of their race or nationality or because they were from out of state.
The segment included a videotape of an NBC producer, in a rental car with Colorado license plates, being stopped by Darrell Pierce, a Louisiana deputy sheriff. The officer said he had stopped the car because it was alternately slowing down and speeding up. But NBC said the car had been on cruise control just below the speed limit until the officer intervened. Not long after the broadcast, Albert and Mary Gonzales filed a federal civil rights lawsuit against Pierce, asserting that he had pulled them over on Interstate 10 in Louisiana in 1995 because they are Hispanic. The couple, who come from Texas, served a subpoena on NBC seeking the complete, unedited videotape of the producer driving on the highway and being pulled over.
A month later, Pierce also subpoenaed the unedited videotape. NBC challenged the subpoenas, citing the qualified privilege on material gathered from nonconfidential sources — a protection that the network said derived from the First Amendment. U.S. District Judge Harold Baer Jr., in a ruling in September 1997, acknowledged that there was a qualified privilege on nonconfidential material in federal law but said the Gonzaleses and the deputy sheriff had met the critical tests for disclosure: The unedited videotape was essential to their lawsuits and the information could not be obtained anywhere else. The appellate court determined, however, that there was no general protection on nonconfidential material. “We disagree with the district court’s holding that there exists a qualified journalists’ privilege,” the judges wrote. The judges on the panel were Joseph McLaughlin, Fred Parker and Arthur Spatt. The lawyer for the Gonzaleses, Perry Sanders Jr., said he had cooperated for months with the producers preparing the Dateline report, allowing them to use information he had gathered for two other lawsuits challenging the way law enforcement officials stopped drivers on the interstate. Sanders said he was initially promised a copy of the unbroadcast portions of videotape, called outtakes, but that NBC lawyers had rejected the request. “All I wanted was some outtakes, to stop the mess that goes on on our interstate,” he said. “It was a critical piece of evidence, we thought. This was an unnecessary and, for us, very costly litigation.”