The opinion of the court was delivered by: Judge Caputo
Presently before the Court is plaintiff Smith's motion in limine to require news reporter Matthew Kemeny to reveal his source. (Doc. 151.) In the alternative, plaintiff Smith moves for permission to take an interlocutory appeal on the reporter's privilege issue. For the reasons stated below, both motions will be denied.
On May 20, 2005, the borough manager for the Borough of Dunmore asked the fire chief for a list of required qualifications for full-time firefighters and verification that each firefighter had met these requirements. After receiving and reviewing this information, the borough manager concluded that two full-time firefighters, Edward Smith and Robert Dee, had not completed a required training course. This conclusion was presented to the borough council, which voted to suspend the firefighters with pay until a hearing could be scheduled. Once the decision to suspend the firefighters had been made, the borough manager sent a letter to the fire chief on June 28th, informing him of the suspension and of the scheduled hearing. The firefighters received neither notice nor a hearing before they were suspended.
The suspensions began on June 28, 2005 and the hearing was scheduled for July 6, 2005. On June 30, 2005, after receiving a copy of the borough manager's June 28th letter to the fire chief, The Times-Tribune, an area newspaper, published a story by reporter Kemeny entitled "Firefighters suspended for not completing required training." The article named Dee and Smith as the firefighters with incomplete training records. At the July 6th hearing it was determined that, in accordance with the collective bargaining agreement, the firefighters were not required to complete the subject training. The firefighters were then reinstated.
One day before the hearing, on July 5, 2005, Smith and Dee each separately brought suit against the borough and five of the seven council members, bringing, inter alia, claims for violations of procedural due process. The Court granted summary judgment in part in both cases on the ground that the defendants had no property interest in not being suspended. Smith and Dee each appealed, and the Third Circuit reversed on the due process claims, holding that as a matter of law, 53 Pa. Stat. Ann. § 46190 and the collective bargaining agreement give rise to a property interest in not being suspended without cause. Dee v. Borough of Dunmore, 549 F.3d 225, 231--32 (3d Cir. 2008); Smith v. Borough of Dunmore, 633 F.3d 176, 180 (3d Cir. 2011). The court of appeals further held that Dee and Smith had constitutionally cognizable liberty interests in their reputations because they suffered the deprivation of their property interests in not being suspended without cause. Dee, 549 F.3d at 234--35; Smith, 633 F.3d at 180.
The court of appeals remanded both cases on the grounds that there were fact issues regarding the borough's justification for suspending Smith and Dee, whether they had suffered "stigma," and whether the July 6th hearing was a constitutionally adequate name-clearing hearing. Dee's case went to trial in January 2010. At trial, when questioned about how he obtained a copy of the June 28th letter, reporter Kemeny testified that it had been provided by "someone at Dunmore" but refused to reveal the name of his source, invoking Pennsylvania's Shield Law, which protects journalists from having to reveal confidential sources. Previously, while being deposed, Kemeny had similarly invoked the privilege under state law as well as the First Amendment. Additionally, while there was testimony at trial that a copy of the letter had been provided to all seven council members, among others, plaintiff Dee only questioned the five council members named in both complaints about leaking the letter -- all of whom denied being Kemeny's source.
Jury trial in Smith's case was set for July 5, 2011. On April 15, 2011, Smith filed the instant motion in limine. (Doc. 151.) Smith argues that reporter Kemeny should be required to reveal his source because that information is a crucial link in establishing his procedural due process liberty\reputation claim under the Fourteenth Amendment and there is no other way for him to obtain this information. Alternatively, if the Court rules against him, Smith moves for the Court to allow an interlocutory appeal. The motion has been fully briefed by both sides and is ripe for review.
I. Motion to Order Reporter Kemeny to Reveal Source
Plaintiff's motion in limine to require reporter Kemeny to reveal his source will be denied because plaintiff has failed to meet the requirements to overcome the "reporter's privilege."
Plaintiff seeks the name of the source to establish his procedural due process liberty\reputation claim, which is governed by the "stigma plus" test. "To make out a due process claim for deprivation of a liberty interest in reputation, a plaintiff must show a stigma to his reputation plus deprivation of some additional right or interest." Hill v. Borough of Kutztown, 455 F.3d 225, 236 (3d Cir. 2006). This is usually referred to as the "stigma-plus" test. See, e.g., Hill, 455 F.3d at 236. Here, having found that Smith had stated a sufficient "plus," the Third Circuit remanded to this Court the determination of whether Smith has satisfied the "stigma" prong of the analysis. Smith, 633 F.3d at 184. In order to satisfy the "stigma" prong of the test, it must be alleged that the purportedly stigmatizing statement(s) (1) were made publicly and (2) were false. Dee, 449 F.3d at 235 (quoting Hill, 455 F.3d at 236). The statements must also be stigmatizing; that is, they must "call into question [Smith's] 'good name, reputation, honor, or integrity'" or "denigrate the employee's competence as a professional and impugn the employee's professional reputation in such a fashion as to effectively put a significant roadblock in that employee's continued ability to practice his or her profession." Patterson v. City of Utica, 370 F.3d 322, 330 (2d Cir. 2004) (internal citations omitted). In other words, the "false statements must harm the plaintiff." Ersek v. Twp. of Springfield, 102 F.3d 79, 84 (3d Cir. 1996). If plaintiff can establish that one of the defendants made the June 28th letter public by leaking it to the press, he will have established the first part of the "stigma" test.
Moving next to the law surrounding a reporter's privilege, Federal Rule of Evidence 501 states:
Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of ...