cdTOCtest

interest, the newsperson’s privilege is absolute in libel
cases. The Shield Law affords newsperson’s complete
protection against disclosure of their confidential sources
and the editorial process leading to publication of an
alleged libel. As to plaintiff’s argument that defendant
had waived the privilege by assertion of such affirmative
defenses as truth, fair comment, good faith, honest belief
and lack of malice, the Court noted that waiver under the
shield law operates only as to those specific materials that
are knowingly and voluntarily disclosed. Furthermore,
each piece of confidential information from a source, or
about the source, must be separately considered for
purposes of finding a waiver of the newspaper’s privilege.

Compare with Herbert v. Lando, 441 U.S. 153
(1979), where the United States Supreme Court held
that when a member of the press is alleged to have
circulated damaging falsehoods and is sued for injury to
plaintiff’s reputation, there is no privilege under the First
Amendment’s guarantees of freedom of speech and press
barring the plaintiff from inquiring into the editorial
processes of those responsible for the publication.

D. Search And Seizure

Zurcher v. Stanford Daily, 436 U.S. 547, reh’g denied,
439 U.S. 885 (1978), upheld a search of a college
newspaper pursuant to a warrant, holding that the
Fourth Amendment standards governing the issuance of
a search warrant are determined not by the apparent
culpability of the item to be seized, but by probable cause
to believe that the “fruit, instrumentalities, or evidence of
the crime” may be located in the property to be searched.
The First Amendment does not prohibit the use of a
search warrant to obtain evidence from a newspaper.
“The preconditions for a warrant, i.e. probable cause,
specificity with respect to the place to be searched and the
thing to be seized, and overall reasonableness, should
afford sufficient protection against the harms that are
assuredly threatened by warrants for searching
newspaper offices.” 436 U.S. at 565.

In light of Zurcher, the New Jersey Legislature
enacted L. 1979, c. 488, s.1, eff. February 28, 1980,
N.J.S.A. 2A:84A-21.9.

E. University Press

Freedman v. New Jersey State Police, 135 N.J. Super.
297 (Law Div. 1975), held that the constitutional

protection of free press encompasses representatives of a

university newspaper.

F. Equal Treatment Requirement

Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S.

221 (1987) held that the State’s sales tax scheme violated

the First Amendment’s freedom of press guarantee by

taxing general interest magazines but exempting

newspapers and religious, professional, trade and sports

journals.

II. FREEDOM OF SPEECH

A. Source

“Congress shall make no law ... abridging the

freedom of speech...” U.S. Const., Amend. I. (“It is no

longer open to doubt that the liberty of speech is within

the liberty safeguarded by the due process clause of the

Fourteenth Amendment from invasion by State action.”

Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 556 (1976)).

“Every person may freely speak, write and publish his

sentiments on all subjects, being responsible for the

abuse of that right. No law shall be passed to restrain or

abridge the liberty of speech or of the press.” N.J. Const.,

Art. I, ¶ 16.

B. Standards For Adjudicating Substantive First

Amendment Rights

The United States Supreme Court has applied a

variety of tests in order to assess whether potentially

inflammatory political expression may be restricted.

1. Clear and Present Danger Test

Schenck v. United States, 249 U.S. 47 (1919).

Members of the Socialist Party were indicted under the

Espionage Act of 1917 for sending leaflets urging men

called to military service to refuse to be drafted. The

question in every case is whether the words are used in

such circumstances as to create a clear and present danger

that they will bring about the substantive evils that

Congress has a right to prevent. It is a question of

proximity and degree. When a nation is at war many

things might be said that in time and peace are such a

hindrance to its effort that their utterance will not be

endured so long as men fight and that no court could

regard them as protected by any constitutional right.

249 U.S. at 52.