Vt. High Court Says Reporter Who Attended Public Meeting Must Testify

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In a ruling concerning the First Amendment, the Vermont Supreme Court said late last week that a reporter cannot refuse to testify about events he or she sees at a public meeting when they are germane to issues in a pending civil lawsuit.

The Sept. 7 ruling stems from a case in which an unsuccessful job candidate for road foreman in the town of Topsham sued, claiming age discrimination was the reason he didn’t get the job.

The reporter, Hank Buermeyer of the weekly Bradford Journal Opinion, reported on comments made during a Selectboard meeting in which members William Appelton and Bruce Thompson said they chose another man because he was younger ? “we can get a lot more service,” Thompson said ? and because James H. Spooner was related to a Selectboard member and the town clerk.

Spooner, the unsuccessful candidate, sued the town and tried to compel Buermeyer to testify about what he heard at the Sept. 10, 2001, meeting in support of his age-discrimination claim.

But the newspaper resisted, saying Buermeyer had a qualified privilege to withhold testimony unless Spooner could show that the information could not reasonably be obtained elsewhere and that it was relevant to significant issues in a pending suit.

Last year, Orange County Superior Court Judge Mary Miles Teachout quashed Buermeyer’s subpoena, saying Spooner hadn’t shown that the same or similar information couldn’t be gotten from others who attended the Selectboard hearing. She said forcing Buermeyer to testify would exert a chilling effect on journalists who attend public meetings, in contravention of free-press interests.

But the five-member Supreme Court, in an 11-page ruling written by Chief Justice Paul Reiber, said reporters have no First Amendment privilege when the information sought derives from their eyewitness observations, as opposed to material gathered from a confidential news source.

“We are not persuaded that compelling the reporter’s testimony in this case will unduly burden the newsgathering function of the press,” he wrote in Spooner v. Town of Topsham. “No confidential sources or materials are at risk. No unpublished information, notes or other resource materials that might infringe on the newspaper’s editorial autonomy are sought by plaintiff.”

The court also said that because different people present for an event or statement may remember it differently, their recollections can be especially valuable in litigation.

The opinion means that Buermeyer can be compelled to testify.

Lawyer Robert B. Hemley, who represented Buermeyer and the newspaper, said no decision had been made on whether to appeal the ruling to the U.S. Supreme Court.

He called it “a dilution of the reporter’s First Amendment protections.”

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