amended again after the New Jersey Supreme Court’s
decision in In re Farber, supra, to strengthen the
protection afforded to the press. N.J.S.A. 2A:84A-21.1
et seq.
- Cases
In re Bridge, 120 N.J. Super. 460 (App. Div.), certif.
denied, 62 N.J. 80 (1972), cert. denied, 410 U.S. 991
(1973). A newspaper writer disclosed in a published
article concerning an alleged bribe, that the Housing
Authority Commissioner was the source of his
information. When he refused to answer questions on the
alleged bribe before the grand jury he was held in
contempt. Affirmed the order, the court held that
although a newspaper writer has a privilege of
nondisclosure of the source of his information, Evid. R.
27, it is limited. Evid.R. 37 clearly states that a person
waives his privilege if he “made disclosure of any part of
the privileged matter...” Where the reporter disclosed in
the article the name of his source in addition to part of the
information given him by her, he waived his privilege and
could be compelled to testify before the grand jury.
In re Farber, 78 N.J. 259 (1978), cert. denied sub nom.
New York Times Co. v. New Jersey, 439 U.S. 997 (1978).
Appellants, a newspaper and a newspaper reporter,
challenged judgments entered against them in two
related matters. One was a proceeding in aid of litigant
rights (civil contempt); the other was for criminal
contempt of court. The proceedings were instituted in an
ongoing murder trial as a result of appellate’s failure to
comply with two subpoenas duces tecum, directing them
to produce certain documents’s and materials complied
in the course of reporter Farber’s investigative reporting.
This information was said to have contributed largely to
the indictment and prosecution of defendant for murder.
The Court held that the Sixth Amendment of the United
States Constitution and Art. I, § 10 of the New Jersey
Constitution, which embody the right to compulsory
process, take precedence over the privilege conferred by
the state shield law. However, recognizing the “strongly
expressed legislative viewpoint favoring confidentiality,”
the Court held that appellants, and those who in the
future may be similarity situated, are entitled to a
preliminary determination before being compelled to
submit the subpoenaed materials to a trial judge for in
camera inspection. Assuming qualification of the movant
to assert the privilege, it is the obligation of the defense
to satisfy the trial judge, by a fair preponderance of this
evidence, including all reasonable inferences, that there
was a reasonable probability or likelihood that the
information sought by the subpoena was material and
relevant to his defense, that it could not be secured from
any less intrusive source, and that the defendant had a
legitimate need to see and otherwise use it. The Court
held that the preliminary requirement for in camera
inspection had been met.State v. Boiardo, 82 N.J. 446 (1980), reviewed the
order of a trial court directing a newspaper reporter to
produce a letter sent to her by a prospective prosecution
witness in a criminal trial, for in camera inspection. The
Supreme Court, in vacating the order, held that
defendants had failed to meet their burden under the
Shield Law of proving by a preponderance of the evidence
the non-availability of a less intrusive source which could
provide information substantially similar to that
contained in the letter. The Court interpreted the new
law to require defendants to prove that it is “reasonably
probable” that this information cannot be secured from
any less intrusive source. The Court noted that precisely
the same findings are required by the statue when the
procedure is to compel disclosure in camera as when it is
to compel a turnover by the court to counsel to use at trial.
Finally, the Court concluded that the Shield Law, as
amended after Farber, embodies those protections of
reporters contained in prior law as it was interpreted in
Farber, adding only the requirements that a defendant
seeking information in a newsperson’s possession must
prove that, on balance, the value of the particular
information to a fair trial outweighs the importance to a
free press of shielding that information from disclosure.The issue returned in State v. Boiardo, 83 N.J. 350
(1980) when after remand, the trial court again ordered
the reporter to turn over letters for in camera inspection.
The Supreme Court reversed the order, concluding that
defendants had failed to meet their burden of proof under
the new Shield Law that the information sought could
not be gained elsewhere. Rather, the Court held that the
record below established to a reasonable certainty that
numerous less intrusive sources of information were
available.Maressa v. New Jersey Monthly, 89 N.J. 176 (1982),
cert. denied, 459 U.S. 907 (1982). During pre-trial
discovery in a civil action for libel, defendants refused to
provide any information about their sources or editorial
process. The New Jersey Supreme Court reasoned that,
in light of the clear legislative intent that N.J.S.A.
2A:84A-21 is to be as broad as possible, absent any
countervailing constitutional right, the newspaper’s
statutory privilege not to disclose confidential
information is absolute. Inasmuch as a plaintiff in a
defamation action has no overriding constitutional