Appeal from Order of the Superior Court dated July 31, 1986, at No. 1139 Philadelphia, 1985, reversing Order of the Court of Common Pleas of Philadelphia County, dated March 21, 1985, at No. 3644 of April Term, 1973.
Nix, C.j., and Flaherty, Zappala and Papadakos, JJ. Larsen, McDermott and Stout, JJ., did not participate in the consideration or decision of this case.
This is an appeal by allowance from an order of the Superior Court granting a new trial in a libel action against a newspaper. The issues presented arise from evidentiary rulings by the trial court. Review was granted because the issues herein implicate the relationship between the federal and state constitutional provisions relating to free speech and reputation and the statutorily created privilege conferred upon a media defendant, commonly known as the "Shield Law." It has become increasingly apparent that the confines of that privilege must be more clearly delineated. It is appropriate to begin with a summary of the procedural history which provided the setting for the trial rulings that are here for consideration.*fn1
In 1973 one Richard A. Sprague, Esquire, commenced a libel action against Philadelphia Newspapers, Inc. ("PNI"), publisher of the Philadelphia Inquirer, a daily newspaper of general circulation. Sprague's complaint, filed in the Court of Common Pleas of Philadelphia County, alleged
that he had been falsely and maliciously defamed by two series of articles published by the newspaper in late March and early April 1973. Also named as defendants in the suit were various reporters and editors of the Inquirer, as well as the corporate owner of PNI. Of the reporters named as defendants, Greg Walter, Howard F. Shapiro and Kent Pollock were the actual authors of the allegedly defamatory articles. At the time the newspaper articles were published Richard Sprague was First Assistant to the District Attorney of Philadelphia. Prior to attaining that position, he had been chief of the homicide division of the District Attorney's Office.
The first series of Inquirer articles concerning Sprague, published in late March of 1973, indicated that he, while First Assistant District Attorney, had participated in a certain illegal wiretapping scheme. In April of 1973, the Inquirer followed with a series of articles which related that Sprague, at a time ten years prior when he was chief of the homicide division, had prevented the bringing of homicide charges against the son of a certain high official of the Pennsylvania State Police. This second series of articles conveyed the impression that Sprague's treatment of the homicide case was motivated by personal favoritism toward the official. The Inquirer articles implicating Sprague in the wiretapping episode were written partly by reporter Greg Walter and partly by reporter Howard Shapiro; the articles about the ten-year old homicide case were co-authored by Walter and another reporter, Kent Pollock.
The libel action here involved proceeded to trial before a jury; those proceedings lasted more than six weeks and generated over four thousand pages of transcribed testimony. The plaintiff, Sprague, presented evidence tending to show that the imputations of wrongdoing set forth about him in the Inquirer articles were false. He also produced evidence which, if believed, would support an inference that the newspaper articles were published with knowledge of their falsity or with reckless disregard of their truth or falsity, i.e., that the statements were made with "actual
malice." As part of his proof on the issue of malice, Sprague disclosed that, several months before the appearance of the articles in question, he had successfully prosecuted reporter Greg Walter on criminal charges for illegal wiretapping. In that regard, the defamation plaintiff also presented testimony from Walter's former girlfriend which indicated that the reporter had expressed a desire to "get Sprague" because of the prosecution.*fn2
To meet the case put on by the plaintiff, PNI sought to negate an inference of "actual malice." To that end, the defense undertook to establish that the newspaper articles were not statements made with knowledge of their falsity, or made with reckless disregard of whether they were false or not, but rather were good-faith statements honestly based on information supplied by reliable and confidential "sources." In support of this contention, the first witness called by the defense was reporter Kent Pollock, co-author of some of the articles.
In the course of Pollock's testimony on direct examination, defense counsel alluded to one of the articles concerning the homicide case and asked the witness to relate how he obtained the information put forth in the article. In response, Pollock began by stating that the information had come from "an individual" to whom he had spoken. When the reporter sought to continue by recounting what the unnamed person had told him, the trial judge interrupted with an inquiry as to the informant's identity. Pollock answered the court's question by stating: "This is a person who was very close to [the suspect's] family, sir, who is a source of mine." At that point, counsel for the plaintiff demanded that the witness reveal the identity of the mentioned informant. Defense counsel objected to the demand, asserting that reporter Pollock had a legal privilege, embodied in Pennsylvania's Shield Law, not to divulge his confidential
sources. The trial judge then recessed the proceedings, to conduct an in camera hearing as to the merits of the objection.
During the in camera hearing before the trial court, defense counsel asserted that the Shield Law permitted reporter Pollock to testify fully as to the information obtained from his source without having to disclose the source's identity, and that no adverse inference or other sanction should result from the exercise of the privilege. The defendant further contended that the privilege conferred by the Shield Law is one mandated by the First Amendment of the United States Constitution, and that if the exercise of the privilege impedes a plaintiff's ability to question the reliability or genuineness of a newsman's source the balance should be struck to favor the free flow of information to the media. The plaintiff, on the other hand, argued that the Shield Law did not demand the interpretation sought by the defendant, and that the privilege is merely an investigative tool which is dissipated once the information from the source is put into print and published. Counsel for the plaintiff further argued that the remedy for failure to reveal a source should be an "adverse inference" charge by the court.
Upon considering the competing arguments, the trial court ruled in favor of the plaintiff. The court concluded that the Shield Law was inapplicable and that the defendant had no constitutional right to conceal the identity of its sources. Based on that determination, the court ordered the defendant to disclose its sources. The order further stated:
If the defendant chooses not to reveal their [sic] sources, it is precluded from defending this action on the grounds that the articles in the suit, or any portion thereof, were based upon information received from a reliable, but undisclosed source.
In order to implement this Order, all evidence of what information defendants [sic] received from allegedly reliable, but undisclosed sources, shall be excluded.
Notwithstanding the above mandate, reporter Pollock and another reporter-witness, Robert J. Terry, persisted in asserting the Shield Law when asked, on cross-examination, to name the sources of the information contained in the newspaper articles. The record shows that the defense witnesses invoked the Shield Law twenty-six times during cross-examination by the plaintiff.
Because the defendant had elected not to disclose its sources, the trial judge, at the time of charging the jury, applied the sanction prescribed in his order: all evidence derived from such sources was to be excluded from the jury's consideration. The jury was instructed to disregard all testimony of defense witnesses as to what information had been obtained from unnamed ...