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Reporter Cannot be Compelled to Disclose Source Under Pennsylvania Law

By David M. Reutter

The Pennsylvania Supreme Court has held the state’s media shield law prohibits the compelled disclosure of a confidential source’s identity, or any information that could expose the source’s identity, rejecting an invitation to fashion a non-textual, “crime-fraud” exception to the operation of the statute.

The original action in this case involved a civil complaint claiming defamation from false news articles published in The Scranton Time-Tribune. It was claimed the articles disclosed in the January 12, 2004, edition that Lackawanna County Majority Democratic Commissioners Randall A. Castellani and Joseph J. Corcoran stonewalled a statewide Grand Jury, which was investigating allegations of wrongdoing at the Lackawanna County Prison.

During discovery, the Commissioners demanded disclosure of the “unnamed source close to the investigations.” After the newspaper refused to do so under the reporter’s privilege of the shield law, the trial court granted the Commissioners’ motion to compel. The Superior Court, on appeal, reversed that order, causing the appeal in the Supreme Court.

The high court found that the unambiguous text of the shield law provides for the “absolute protection of a source’s identity from disclosure.” Thus, the Court “cannot simply engraft upon the statute an exception” that would contradict that text.

While a crime-fraud exception has been applied to the attorney-client privilege, which protects the client, a similar exception to the shield law cannot be carved because that law protects the public.

The trial court carved a narrow crime-fraud exception. That was based on the “competing and conflicting” interests of shield law and the Grand Jury Act, which makes it a crime to disclose Grand Jury proceedings.

The Supreme Court felt the trial court stepped beyond its realm. “It is, in the first instance, a question of policy suited to the legislative branch to align the values of the two potentially ‘competing’ statutes. In addition, we note that hampering the news media in the performance of their essential function would not necessarily remedy or prevent violations of the Grand Jury Act.”

Because it was not the newspaper that violated the law, it should not be punished. The reporter “may indeed have been on the receiving end of a criminal communication, but it was the opening of the speaker’s mouth which violated the Grand Jury Act, not the attentiveness of the listener’s ears. Of course, the media should act responsibly in exercising their statutory right, and when they do not, they may be answerable in defamation.

“And, examples of irresponsible journalism are known. But, the news media have a right to report news, regardless of how it was received.” Thus, Pennsylvania’s unique shield law “protects a journalist’s source information from disclosure, even if such protection would conceal or cover up a crime.”

In addition, the Court said the evidence showed a report by a special prosecutor found that there was no violation of the Grand Jury Act, for the information provided the reporter contrary to the real testimony given by the Commissioners.

Therefore, the Superior Court’s reversal of the order to compel disclosure of the unnamed source was affirmed.

See: Castellani v. The Scranton Times, 956 A.2d 937 (Penn. 2008).

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Related legal case

Castellani v. The Scranton Times