09/25/08

Pa. Supreme Court says newspaper reporter can't be forced to reveal source's identity

By MARTHA RAFFAELE
Associated Press Writer

HARRISBURG, Pa. (AP) -- The Pennsylvania Supreme Court has refused to carve out an exception to the state's Shield Law that would have forced a newspaper reporter to reveal the identity of her source for a story about a grand jury investigation.

"The news media have a right to report news, regardless of how the information was received," Chief Justice Ronald Castille wrote in the majority opinion.

The high court's 4-1 decision released Thursday upheld a lower court ruling that sided with Jennifer Henn and her former employer, the Times-Tribune of Scranton.

Two former Lackawanna County commissioners sued the Times-Tribune and Henn for libel over a January 2004 story that said they were not cooperative in their appearances before a grand jury investigating alleged prison brutality.

The Supreme Court said the Shield Law bars reporters from being forced to identify confidential sources.

The decision is among a handful of appellate court rulings that reinforce the "absolute protection" reporters are given by the 71-year-old law, said Teri Henning, an attorney for the Pennsylvania Newspaper Association.

Randall A. Castellani and Joseph J. Corcoran demanded in their lawsuit to know the source of Henn's information. They appealed after the state Superior Court in January 2005 overturned a county judge's ruling in their favor.

The Supreme Court disagreed with the commissioners' contention that the source had to be revealed because the reporter committed a crime by receiving information about the grand jury proceedings.

Tom McGough, a Pittsburgh attorney representing the newspaper and Henn, said the ruling made clear that the state law does not allow for such a "crime-fraud" exception.

"They ... ratified the language of the shield act, which says no reporter shall be required to identify a source in any judicial proceeding," McGough said. "It's not (the court's) prerogative to change the language."

Geoff Johnson, a Philadelphia lawyer for the former commissioners, said knowing Henn's source would have helped the plaintiffs in their libel case, but it was not absolutely necessary for them to prove their claims.

"The court was very clear in its decision, and we respect that," Johnson said. "We're going to go forward and prosecute."

A Lackawanna County judge had ruled that the importance of grand jury secrecy outweighed the protections of the Shield Law, but the Superior Court determined that the judge granted an improper exception.

Grand jury proceedings are secret and state law bars prosecutors, court officials or jurors from discussing such investigations. Witnesses are not barred from discussing their testimony outside the courtroom.

Justice Seamus McCaffery cast the dissenting vote, arguing that, as public figures in a libel case, Castellani and Corcoran were entitled to know the identity of Henn's source to ensure that it was not fabricated.

"Otherwise, the plaintiff is left without the ability to sustain his or her heavy burden to show that the alleged defamer acted with actual malice," McCaffery wrote.

Henn declined to comment on the ruling in an e-mail to The Associated Press. She resigned from the Times-Tribune in 2005 and is now an editor for a chain of community newspapers in Southampton, N.Y.

A recent high-profile case involving Pennsylvania journalists' right to protect sources' identities involved the prosecution of Louis DeNaples, owner of the Mount Airy Resort Casino in the Pocono Mountains, on four counts of perjury. He is accused of lying to state gambling investigators about his relationships with four men -- two reputed mobsters and two men at the center of a political corruption scandal in Philadelphia -- to win a casino license.

In response to an appeal by DeNaples, the state Supreme Court in May ordered a county judge to determine whether a special prosecutor should be appointed to investigate whether alleged leaks to the news media violated the secrecy of the grand jury probe that prompted the criminal charges.

DeNaples' legal team subpoenaed 15 journalists from six news organizations, but most of them were not asked to testify and the judge ultimately quashed the subpoenas.

In a footnote in its latest ruling, the majority opinion said Shield Law protections and grand jury secrecy would be more directly in conflict if the state were seeking information from a reporter about a grand jury leak in a criminal investigation or prosecution of that leak.

"That question, however, is not before us and we save its consideration for another day," Castille wrote.

Justice Debra Todd, who was a Superior Court judge when the case was before that court, did not participate in the Supreme Court's deliberations.