Federal judges in all three districts in North Carolina – the Western, Middle and Eastern districts – have recognized and applied a qualified privilege for news reporters. The Fourth Circuit Court of Appeals also has recognized the privilege. Journalists subpoenaed to testify do not have to testify or produce notes or records unless the party seeking the information can demonstrate: (1) that the information sought was relevant and material to the litigation; (2) that the information sought was necessary for the maintenance of the claim; and (3) that there were no alternative means of obtaining the requ ired information.
In state courts, however, the picture is considerably less clear. No case involving the First Amendment-based privilege reached the state’s appellate courts until the late 1990s. As a result of the N.C. Supreme Court’s opinion in that case – In re Owens, affirming the N.C. Court of Appeals’ 1998 decision – there is no constitutional privilege in North Carolina for reporters subpoenaed in criminal cases to provide nonconfidential information obtained from nonconfidential sources. Those decisions did not expressly reach the issue of whether a constitutional privilege exists in civil cases, or in cases in which a confidential source or confidential information is implicated. A short history of reporter’s privilege in North Carolina will help to clarify the situation.
Since the first reported state trial court opinion concerning the reporter’s privilege in 1983, most N.C. trial courts had found that a news reporter subpoenaed to give testimony about confidential or nonconfidential information has a qualified privilege not to testify. That meant that the reporter did not have to testify unless the party seeking the information could demonstrate: (1) that the information sought was relevant and material to the litigation; (2) that the information sought was necessary for the maintenance of the claim; and (3) that there were no alternative means of obtaining the required information.
Experienced trial court judges regularly applied the constitutional privilege in some of the state’s toughest and most celebrated cases. For example, Mecklenburg County Superior Court Judge Robert Johnston applied the reporter’s privilege and quashed subpoenas to reporters from accused multiple-murderer Henry Wallace in 1995. Cumberland County Superior Court Judge Gregory Weeks applied the constitutional reporter’s privilege to quash subpoenas in the trial of two men accused of killing Michael Jordan’s father in 1995. It has, in fact, been an exceedingly rare event for a N.C. news reporter to be required to provide testimony or produce records when subpoenaed to do so.
In early 1997, Wake County Superior Court Judge Robert Farmer held a Raleigh television reporter in contempt of court and sentenced her to 30 days in jail for refusing to testify in a criminal case regarding nonconfidential information obtained from a nonconfidential source. Judge Farmer refused to find the existence of the First Amendment-based reporter’s privilege, and thus he ruled that the prosecutor seeking the information did not need to demonstrate that it was relevant and necessary to his case or that it was unobtainable from other sources. After spending two hours in jail, Owens was released and appealed her criminal contempt conviction to the N.C. Court of Appeals. The Court of Appeals rejected the reasoning of dozens of courts in other jurisdictions that had recognized a constitutional privilege. It held that – at least in criminal cases where only nonconfidential information and nonconfidential sources were involved – neither the First Amendment nor the N.C. Constitution provided a reporter’s privilege. Owens appealed that decision to the N.C. Supreme Court, which heard oral argument in that case on Sept. 30, 1998. In the meantime, in light of the Court of Appeals’ strongly worded opinion, N.C. reporters faced considerable uncertainty when served with subpoenas. In the early spring of 1999, after months of waiting for a decision by the state Supreme Court, the North Carolina Press Association and the North Carolina Association of Broadcasters decided to support the enactment of a shield statute by the General Assembly. Despite the initial reluctance by some members of the media to seek a “special privilege” for journalists, at least until the N.C. Supreme Court had ruled, North Carolina Press Association lobbyist John Bussian led a savvy legislative effort. The proposed legislation moved quickly through the Senate and the House. Although it received some opposition from the state’s association of district attorneys while in conference committee, the bill passed and was signed into law on July 21, 1999, by then-Gov. James B. Hunt.
The fact that the statute does not apply to information gathered before Oct. 1, 1999, left the door ajar for some remaining disputes over the existence and scope of a reporter’s qualified privilege based on the First Amendment or the N.C. Constitution. For example, Elizabeth Chandler, a reporter for The Charlotte Observer who had covered highly publicized civil litigation involving Charlotte Hornets owner George Shinn, was subpoenaed by Shinn’s attorney in April 1999 to testify at deposition and to produce her notes and all documents in her possession related to the state court case. (Shinn’s counsel was simultaneously demanding that the newspaper remove her from coverage of the dispute.) She moved to quash the subpoena, and Superior Court Judge Timothy C. Patti heard that motion on July 15, 1999. He had still not ruled on July 23, when the N.C. Supreme Court, on its first opinion day since the shield statute was signed into law, affirmed the Court of Appeals’ 1998 decision in Owens in a one-sentence opinion noting the recent enactment of the shield law. On July 26, Judge Patti ruled that the constitutional reporter’s privilege applied and quashed the subpoena. He distinguished the Shinn-Chandler matter from the Owens case, noting that the case before him involved a subpoena in a civil case that implicated confidential as well as nonconfidential sources. That order was not appealed.