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Case revists questions of journalists' privilege

In a case with broad implications for the daily work of journalists, the Florida Supreme Court will decide whether reporters can be forced to testify on events they wrote about but did not witness.

The issue arose after a state appeals court overturned a Pinellas County assault conviction because a St. Petersburg Times reporter did not testify about her interview with the victim.

On Tuesday, media advocates told the justices that if the appeals decision is not reversed, lawyers across Florida will have a green light to subpoena reporters at will, jeopardizing journalists' freedom to work without government interference.

"The starting point for lawyers will be to go to the press," said Florida State University President Sandy D'Alemberte, who is a lawyer and argued the case on behalf of news organizations, including the Times. "If (the appeals ruling) stands, that conflict comes up front in virtually every case."

The case arose from the conviction of Merlan Davis, found guilty of aggravated assault after he smashed his car into a car driven by his ex-girlfriend, Nicole Terry, on the Sunshine Skyway bridge.

Terry's case inspired the state Legislature to pass a law against stalking, and she eventually told her story to Times reporter Diane Mason. The 1992 article by Mason, who no longer works for the Times, included details of the incident.

In his trial, Davis wanted to question Mason about the interview, but a judge ruled she did not have to testify because of a "qualified reporter's privilege." But the 2nd District Court of Appeal later ruled that Davis should be able to question Mason to see how her description of Terry's experiences jibed with what Terry told police and lawyers.

The appeals court asked the Supreme Court to decide whether reporters can be forced to testify in criminal cases if they can provide information that is not clearly confidential.

Most state and federal courts make that decision based on balancing certain questions with the reporter's privilege: whether there are alternative sources for the information being asked of the reporter, what the relevance of the information is, and the need for the information.

But Davis' lawyer told the justices Tuesday that a defendant's right to due process outweighs a reporters privilege.

"What they heard during an interview is relevant," said Allyn Giambalvo, a Pinellas County public defender. "I'm sure the state would find it relevant in other cases."

How does one judge that relevance?

"Sometimes you just don't know till you ask," Giambalvo responded.

The question of when reporters should testify has been a hot issue for years.

Past attempts to create a "shield law" to protect journalists in Florida have failed in the Legislature.

And last year, a state appeals court affirmed a contempt of court conviction of Miami Herald reporter David Kidwell, who was imprisoned for 15 days for refusing to release information he gathered during a jailhouse interview with a convicted murderer.

The appeals court rejected Kidwell's claim that he was protected by reporter's privilege. His case is awaiting action by the Supreme Court, which has not scheduled a date for oral arguments.

It is not clear what effect the Davis case could have on Kidwell.

Several justices asked Davis' lawyer why they should go against decades of case law protecting reporters from testifying in certain cases. Justice Harry Lee Anstead noted that there were other sources for the information Mason could provide.

"Those (cases in which reporters testify) are exceptional cases where the news gatherers appear to be direct, first-hand eyewitnesses," Anstead said. "Where have we said that the balancing test is no longer applicable?"

Giambalvo admitted that had not happened, but argued that granting a qualified privilege gives lawyers no leeway to see if the reporter knows anything that can help their clients.

But D'Alemberte said making reporters testify regularly would disrupt the profession by removing journalists' independence and making them work for lawyers.

"What is protected is newsgathering," said D'Alemberte. "It is not some kind of relationship between a source and the news reporter. It protects a process."

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