Appeal from the Order Dated September 20, 1996, Docketed September 24, 1996, In the Court of the Court of Common Pleas of Montgomery County, Civil Division at No. 96-03920. Before TRESSLER, J.
Before: Beck, Saylor, and Montemuro, JJ.* Opinion BY Beck, J.
The opinion of the court was delivered by: Beck
We address the application of the Pennsylvania Shield Law and the qualified privilege of the First Amendment of the United States Constitution to a subpoena issued to a non-party newspaper by plaintiffs in a defamation suit.
The Philadelphia Inquirer and one of its reporters, Kyle York Spencer (collectively, "Inquirer") appeal the trial court order requiring them under a subpoena to turn over certain materials to the plaintiffs, the Commissioners of Lower Merion Township ("plaintiffs" or "Commissioners"). The underlying action for defamation was brought by the Commissioners against defendants Richard Glanton, Niara Sudarkasa, Shirley A. Jackson, and Charles Frank, individually and as trustees of the Barnes Foundation. Defendants are responsible for the operation of the Barnes Foundation, which is located in Lower Merion Township.
The Commissioners' subpoena related to: 1) material used for an article published in the Inquirer on November 27, 1995; 2) other Inquirer articles or editorials from January 1990 to the present mentioning the defendants, the Barnes Foundation Board of Trustees, or the Barnes Foundation (collectively, "Barnes entities"); 3) notes taken from January 1990 to present by reporters in connection with any interviews or Discussions with defendants or their representatives; and 4) documents from January 1990 to present "including but not limited to press releases, wire service stories, and other materials or information" received by the Inquirer in connection with articles and/or editorials involving the Barnes entities. *fn1
Broadly stated, the subpoena called for the Inquirer to divulge information and materials gathered or prepared in connection with a specific article published November 27, 1995 and more generally for information and materials relating to the Barnes entities in the Inquirer's possession from January 1990 to the present.
In opposing the subpoena, the Inquirer relied on privileges arising under The Pennsylvania Shield Law and the First Amendment.
This appeal raises several issues pertaining to the journalist's privilege not to disclose sources of the information contained in published articles and reports. We first consider whether in a defamation action a media entity which is not a party to the action is required under the Pennsylvania Shield Law, 42 Pa.C.S. § 5942, to produce reporters' notes and other unpublished materials pertaining to conversations with a disclosed source. We conclude, based on the decision of the Pennsylvania Supreme Court in Hatchard v. Westinghouse Broadcasting, 516 Pa. 184, 532 A.2d 346 (1987), that to the extent such materials cannot reasonably lead to the identification of sources not revealed in published articles they are not protected.
The appeal also raises questions as to whether the subpoenaed materials are protected by the qualified privilege protecting journalists' sources under the First Amendment of the United States Constitution. With respect to the materials relating to the November 27, 1995 newspaper article reporting the remarks which are the subject of plaintiffs' defamation action, we conclude that plaintiffs have made the showing necessary to overcome the qualified privilege. With respect to other privileged materials covered by the subpoena, however, we cannot agree with the trial court that plaintiffs have overcome the qualified privilege. Accordingly, we affirm in part, reverse in part and modify in part the trial court's order. *fn2
Among the allegations in the defamation suit is the claim that defendant Richard Glanton falsely accused plaintiffs of engaging in "thinly disguised racism," as reported in an Inquirer article entitled "An Enduring Tension part of Barnes Legacy," written by Kyle York Spencer and published on November 27, 1995. The article included the ...