Reporter’s Privilege

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by: Ken Schmetterer and Joe Roselius

Reporter’s Privilege

Police found the bodies of Eric Glover and Terrance Rankins, lifeless and hooded with plastic bags, strangled after being lured into a house in Joliet, Ill.  Four suspects confessed to police shortly thereafter.  Two discussed having sex on the corpses of their victims.  Another left to take her child to a babysitter before returning.  The four also discussed dismembering the bodies to hide their crime.  The gruesome details were set forth in police reports obtained by reporter Joseph Hosey and described in articles he published on Patch.com.

Once in court, the defendants secured a gag order, limiting further disclosures about the case by lawyers and law enforcement. Then one defendant, Bethany McKee, sought to force Hosey to turn over his files on the case, identify his confidential source, and explain how he obtained the police reports.

McKee’s request posed a profound professional threat to Hosey and to journalists across the country. If a defendant (or prosecutor) can force disclosure of a confidential source’s identity, other sources will be reluctant to confide in journalists, restricting the flow of information critical to journalists who write about important public matters.

The First Amendment to the United States Constitution states “Congress shall make no law…abridging the freedom…of the press…” In a 1972 case, the U.S. Supreme Court considered whether the First Amendment shields reporters from having to testify to a grand jury about their work and sources. The reporters argued that a constitutional right to publish news implies a corresponding right to gather news, a right that would be threatened by forced disclosure of sources. They sought to require those seeking such testimony to show a compelling need for it and an inability to secure the information by other means. The Court held, however, that reporters had no constitutional right to refuse to testify.

The ruling alarmed defenders of the press, and many states adopted statutes providing additional protections. Illinois adopted such a statute, barring courts from forcing reporters to disclose their sources unless certain requirements are met. Those seeking to compel disclosure must identify the specific information sought, its relevancy to the proceeding, and the public interest that would be harmed without disclosure. The court must consider the nature of the proceeding, the merits of the claim or defense, the relevancy of the information, and the possibility of securing the information by means less intrusive to reporters. Further, state or federal secrets cannot be compromised, other available sources of information must be exhausted, and disclosure must be essential to protect the public interest.

McKee sought to divest Hosey of his reporter’s privilege. She argued that disclosure of Hosey’s source would protect her right to a fair trial; that if the leak occurred during the grand jury investigation then grand jury secrecy rules were violated; and that if a lawyer was Hosey’s source that lawyer would have violated discovery rules. McKee also claimed that disclosure could reveal perjury by a government witness because the prosecutors, public defenders and Joliet police officers filed court-mandated affidavits denying that each was Hosey’s source.  Circuit Judge Kinney accepted McKee’s arguments and added one more, noting that Hosey (who had written a book on convicted wife-killer Drew Peterson) had “the potential for financial gains that come from one reporter outgaining this information sooner than other reporters…to author books (and) screenplays.” Hosey was ordered to testify. After refusing to do so, he was held in contempt and threatened with fines and jail.

On appeal, Hosey raised several arguments. Hosey’s source information was relevant—not to McKee’s guilt or innocence—but to speculation about collateral matters. When Hosey received the police report, no gag order was in place and no law prevented the police from disclosing what was, after all, a public record. No public interest required divestiture of Hosey’s privilege; McKee’s right to a fair trial and an unbiased jury would not be vindicated by forcing Hosey to divulge his source. McKee failed to exhaust all other options to get the information. She did not, for example, subpoena Joliet Police Department officials to testify about who had access to, and who may have disclosed, police reports. Further, the trial judge did not consider an additional common law right—the “special witness doctrine”—which protects reporters against forced testimony unless the information is necessary to the case.

Hosey’s testimony plainly was not necessary to McKee’s case. Indeed, McKee demanded that her trial be completed before Judge Kinney’s announced retirement took effect, a strategy that guaranteed her trial would be over before the Appellate Court even decided whether Hosey was properly divested of his reporter’s privilege.

The Illinois Appellate Court reversed Judge Kinney and vacated the contempt order. The court held that Hosey’s source was relevant, at most, to matters collateral to McKee’s guilt or innocence, an insufficient basis to divest Hosey of his privilege. The Appellate Court did not address the other grounds Hosey raised on appeal.

The narrow basis of the Appellate Court ruling should not diminish the significance of this case, or the threat to journalists posed by the lower court’s ruling. Anonymous sources are essential to the work of journalists. As Illinois courts have recognized, the reporter’s privilege evolved from the recognition that compelled disclosure of a source’s identity compromises the media’s First Amendment right to freely gather and disseminate information. It assures a more informed public and allows reporters to seek the truth without fear that sources of information will be cut off by unnecessary disclosures. Ultimately, it permits the public to receive complete, unfettered information.

Hosey faced the very real threat of jail for refusing to reveal information irrelevant to McKee’s guilt or innocence. A case that invokes the mere possibility that source disclosure could be relevant to some collateral matter (“off topic” as even the trial judge observed) is not worthy of such a threat to Hosey or any other journalist in this country. Reporters’ privilege laws protect the public as well as reporters—they should be vigilantly enforced.

 

Ken Schmetterer is a partner and Joe Roselius is a senior associate in the Chicago office of DLA Piper. Both represented reporter Joseph Hosey in the case captioned as People of the State of Illinois v. Bethany McKee in the Illinois Appellate Court—Third Appellate District.

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