Sean Patrick DELANEY et al., Petitioners, v. The SUPERIOR COURT of Los Angeles County, Respondent; Roxana KOPETMAN et al., Real Parties in Interest.
We here consider the narrow question of whether provisions of the California shield law immunizing newspersons from being held in contempt for their refusal to disclose certain “unpublished information” 1 apply when the newsperson is an eyewitness to a public event. We hold the shield law inapplicable in this situation and therefore order respondent superior court to vacate its order granting relief to real party newspersons in this case.
A. Underlying Facts
On September 23, 1987, Los Angeles Times reporter Roxana Kopetman and photographer Roberto Santiago Bertero 2 accompanied members of a special Long Beach Police Department task force on patrol in the downtown area of the city in response to complaints regarding drugs, thefts, and panhandling. The officers observed 21–year-old Sean Delaney and a companion seated on a bench in the Long Beach Plaza mall. Both were shabbily dressed. A plastic baggie of a type often used to store narcotics was protruding from Delaney's shirt pocket.
The officers inquired about the contents of the baggie. Delaney removed it from his pocket to show that it contained a piece of gold. He told the officers he obtained the gold from a friend and intended to pawn it at the mall. Since there were no pawnshops in the mall, the officers' suspicions were aroused. An officer asked Delaney for his identification. Delaney then reached for a jacket sitting next to him on the bench as if to get his wallet.
According to the officers, before Delaney actually picked up the jacket he was asked if it could be checked for weapons. Delaney consented. One officer ran his fingers along the outside of the jacket and felt a hard object in a pocket. The officer reached inside and retrieved a set of brass knuckles. Delaney claimed it was a key chain.
An article about the downtown task force appeared in the September 27, 1987 edition of the Los Angeles Times. The article included information regarding the police contact with Delaney and contained a photograph of Delaney and his companion sitting on the mall bench. The article did not discuss whether Delaney had consented to a search of his jacket pocket.
B. Procedural History
In a misdemeanor complaint filed September 24, 1987, Delaney was charged with possession of brass knuckles in violation of Penal Code section 12020. Delaney moved to suppress evidence of the brass knuckles pursuant to Penal Code section 1538.5. In his motion, Delaney argued he had not consented to the pat-down search of his jacket and the resulting seizure of the brass knuckles was therefore illegal because the officers lacked reasonable suspicion that he was armed. (See Cunha v. Superior Court (1970) 2 Cal.3d 352, 356, 85 Cal.Rptr. 160, 466 P.2d 704.)
Delaney subpoenaed the Times reporters to testify at the suppression hearing. The Times reporters moved to quash their subpoenas, arguing they could not be compelled to testify about facts relevant to the validity of the seizure because such facts constituted “unpublished information” under the shield law. The motions were denied.
Following testimony by the arresting officers at the suppression hearing, the Times reporters were called to testify by the prosecution, which had the burden of demonstrating the legality of the seizure. (People v. Superior Court (1970) 3 Cal.3d 807, 812, 91 Cal.Rptr. 729, 478 P.2d 449.) 3 Their testimony established that each observed the events leading to the seizure of the brass knuckles and each was situated in a position which would have provided an opportunity to hear whether Delaney's consent had been requested and, if so, what Delaney's response had been. The Times reporters, however, refused to answer questions specifically relating to Delaney's alleged consent.
The municipal court held that the shield law did not apply to the Times reporters' eyewitness observations and that, in any event, the need for the Times reporters' neutral testimony on the consent issue outweighed any claim based on the shield law. Consequently, the Times reporters were cited for contempt of court for their refusal to answer questions.
The Times reporters filed identical petitions for writ of habeas corpus in the superior court. That court found the shield law provided immunity from contempt and on December 16, 1987, granted the Times reporters' petitions.
On February 10, 1988, a petition for writ of mandate was filed jointly by Delaney and the People of the State of California (through the Long Beach City Prosecutor) seeking to vacate the orders of respondent superior court granting the Times reporters' habeas corpus petitions. We issued an alternate writ of mandate to achieve prompt resolution of this important issue.4
A. History of the Shield Law
California has had a newsperson's shield law since 1935. (Stats. 1935, ch. 532, § 1, pp. 1608–1610.) “Code of Civil Procedure section 1881, subdivision 6, provided that newspaper employees could not be adjudged in contempt for refusal to disclose sources to courts or legislative or administrative bodies. Subsequent amendments extended the immunity to employees of radio and television stations, press associations and wire services. (Stats. 1961, ch. 629, § 1, pp. 1797–1798.)” (KSDO v. Superior Court (1982) 136 Cal.App.3d 375, 380, 186 Cal.Rptr. 211.) These provisions were adopted into section 1070 of the Evidence Code when it became effective in 1967. (Stats. 1965, ch. 299, § 2, pp. 1297, 1323–1335; see also Evid.Code, § 12.) Amendments in 1971 and 1972 extended protection to “person[s] connected with” newsgathering organizations and extended applicability of the shield law to “any ․ body having the power to issue subpoenas.” (Stats. 1971, ch. 1717, § 1, p. 3658; Stats. 1972, ch. 1431, § 1, p. 3126.)
In 1972, the United States Supreme Court held that the First Amendment to the United States Constitution does not provide reporters with an absolute privilege against appearing before a grand jury and answering questions as to either the identity of news sources or the information received. (Branzburg v. Hayes (1972) 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626.) Branzburg further noted that “[a] number of States have provided newsmen a statutory privilege of varying breadth” (id. at p. 689, 92 S.Ct. at p. 2660, fn. omitted) and that states may “respond[ ] in their own way and constru[e] their own constitutions so as to recognize a newsman's privilege, either qualified or absolute” (id. at p. 706, 92 S.Ct. at p. 2669).
In 1974, California responded to Branzburg by amending Evidence Code section 1070 to read in its present form.5 (Stats. 1974, ch. 1323, § 1, p. 2877; Stats. 1974, ch. 1456, § 2, p. 3184.) The amendment dramatically expanded the scope of the shield law by including “unpublished information.” 6 No longer was the shield law specifically limited to disclosure of sources; it also covered “unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.”
Another significant development occurred on June 3, 1980. On that date the voters of this state approved Proposition 5, a state constitutional amendment proposed by the Assembly. (Assem. Const. Amend. No. 4, Stats.1978, res. ch. 77, pp. 4819–4820.) Proposition 5 amended California Constitution, article I, section 2, by adding subdivision (b), which contains language virtually identical to Evidence Code section 1070.7
No further changes to the newsperson's shield law, in either its statutory or constitutional form, have occurred since the passage of Proposition 5.8
B. Applicability of the Shield Law in this Case
Delaney and the People (hereafter collectively “petitioners”) contend that the shield law does not provide newspersons with immunity from being held in contempt for refusing to testify regarding their eyewitness observations of an event which took place in public. The issue is one of first impression.
The parties agree that no confidential source is, or has ever been, involved in this matter. Therefore, if the shield law is applicable, it must be based on its provisions involving unpublished information.9 The question, then, for this court to determine is whether the definition of unpublished information as utilized in the shield law includes the eyewitness observation of those present when a relevant event takes place in a public, nonconfidential context. In making such a determination, we are guided by well established principles applicable to construing both statutes and state constitutional provisions.
“ ‘We begin with the fundamental rule that a court “should ascertain the intent of the Legislature so as to effectuate the purpose of the law.” [Citation.] In determining such intent “[t]he court turns first to the words themselves for the answer.” [Citation.] We are required to give effect to statutes “according to the usual, ordinary import of the language employed in framing them.” [Citations.] “If possible, significance should be given to every word, phrase, sentence and part of an act in pursuance of the legislative purpose.” [Citation]; “a construction making some words surplusage is to be avoided.” [Citation.] “When used in a statute [words] must be construed in context, keeping in mind the nature and obvious purpose of the statute where they appear.” [Citations.] Moreover, the various parts of a statutory enactment must be harmonized by considering the particular clause or section in the context of the statutory framework as a whole. [Citations.]’ ” (Palos Verdes Faculty Assn. v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 658–659, 147 Cal.Rptr. 359, 580 P.2d 1155.)
“A constitutional amendment should be construed in accordance with the natural and ordinary meaning of its words. [Citation.] The literal language of enactments may be disregarded to avoid absurd results and to fulfill the apparent intent of the framers. [Citations.]” (Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 245, 149 Cal.Rptr. 239, 583 P.2d 1281; see also Lungren v. Deukmejian (1988) 45 Cal.3d 727, 248 Cal.Rptr. 115, 755 P.2d 299.)
The reasons underlying a newsperson's shield law, to paraphrase Branzburg v. Hayes, supra, 408 U.S. at pages 679–680, 92 S.Ct. at pages 2655–2656, may be simply put: To gather news it is often necessary to agree either not to identify the source of the information or publish only part of the facts revealed, or both. If a newsperson is forced to reveal a confidential source, that source, as well as confidential sources that might otherwise have been available to other newspersons will be deterred from providing valuable information. The newspersons' consequent reduced ability to acquire confidential information will be detrimental to the unhampered flow of information which is an essential part of a free society.
Consistent with Branzburg 's invitation for states to fashion some form of newsperson's shield law under their own laws, the 1974 amendment to Evidence Code section 1070 sought to insure that confidential sources would be protected. It did this by adding to the specifically covered category of confidential sources a secondary protection for background information gathered by the newsperson regardless of whether the information was acquired in confidence.
Our independent examination of the legislative history of the 1974 amendment (see Woodman v. Superior Court (1987) 196 Cal.App.3d 407, 413, 241 Cal.Rptr. 818) confirms that the purpose of adding provisions regarding unpublished information was to strengthen the protection of sources. For example, the analysis prepared by the Senate Committee on the Judiciary of the 1974 amendment (SB 1858) provides, in pertinent part: “PURPOSE [¶] Protect those in the communications industry from being required by law to reveal unpublished information which was obtained in gathering information for the public, in order to keep open the sources of that information.” (Emphasis added.) “COMMENT [¶] ․ [¶] 2. The problem that gives rise to this legislation is that, in the course of gathering information for dissemination to the public, reporters (and any of the other persons listed in Section 1070 of the Evidence Code) often are given information by individuals purely as background information to aid the reporter's understanding of the subject. In addition, investigative reporters who conduct detailed research and investigations into a subject generally use only a fraction of what they learn in an actual publication. It is this background information and the sources of it which are presently unprotected. [¶] This bill seeks to protect this ‘background’ or unpublished information obtained or prepared in gathering, receiving or processing information for communication to the public.” (Original emphasis.)
When Proposition 5 was presented to the electorate in 1980, the argument in favor of its passage (no argument was submitted against its passage) was also predicated on the need to protect confidential sources.10 (See White v. Davis (1975) 13 Cal.3d 757, 775, fn. 11, 120 Cal.Rptr. 94, 533 P.2d 222 [ballot arguments are an aid in construing constitutional amendments adopted pursuant to a vote of the people].)
In their appellate briefs, the Times reporters argue that elevation of the shield law from the Evidence Code to the State Constitution broadened the scope of the “unpublished information” provisions. However, the Times reporters have offered no authority to support any notion of expansion of the shield law's protection. Rather, it appears from the ballot argument 11 and the analysis of the legislative analyst 12 of Proposition 5 that the primary purpose of placing the shield law in the constitutional amendment was to abrogate the holdings of two appellate cases—Rosato v. Superior Court (1975) 51 Cal.App.3d 190, 124 Cal.Rptr. 427 and Farr v. Superior Court (1971) 22 Cal.App.3d 60, 99 Cal.Rptr. 342—which held that, regardless of other circumstances, the shield law must give way to the court's authority under the state constitution to protect its own processes and to conduct a fair trial. (See Kevane, “The Newsgatherer's Shield—Why Waste Space in the California Constitution?” (1985) 15 Sw.U.L.Rev. 527, 545–546.)
The Times reporters note that the “unpublished information” provisions of the shield law have been interpreted broadly regardless of whether the statute or the state constitution is being considered. (Playboy Enterprises, Inc. v. Superior Court (1984) 154 Cal.App.3d 14, 21, 201 Cal.Rptr. 207 [interpreting Cal. Const., art. I, § 2, subd. (b), that “unpublished information” “has broad reference to factual information that is within the newsperson's knowledge, whether contained in source material or in memory”]; Hammarley v. Superior Court (1979) 89 Cal.App.3d 388, 396–398, 153 Cal.Rptr. 608 [similarly interpreting Evid.Code, § 1070].) However, neither of these cases attempted to determine whether eyewitness observations of a public event constitute “unpublished information” under the shield law.
Our holding is strictly limited to a factual situation where, as here, eyewitness testimony regarding a public event 13 is sought from a newsperson. Because in such a situation the subject matter of the testimony is not dependent upon anyone's trust being placed in the newsperson, there is no basis to differentiate the newsperson's observation of the event from that of any other citizen. In short, the testimony is wholly unrelated to the shield law.14
Accordingly, we conclude that the “unpublished information” provisions of the newsperson's shield law do not apply to compelled eyewitness testimony regarding a public event.15
Let a peremptory writ of mandate issue, compelling respondent Los Angeles County Superior Court to vacate the orders entered December 16, 1987, in case numbers HC 206320 and HC 206321, entitled In re Roxana Kopetman and In re Roberto Santiago Bertero, respectively, granting their petitions for writ of habeas corpus and thereafter make new and different orders denying same.
I respectfully dissent. In my view, the shield laws cannot be limited so as “not [to] apply to compelled eyewitness testimony regarding a public event.” (Ante, p. ––––.)
Both article I, section 2, subdivision (b) of the California Constitution and Evidence Code section 1070, subdivision (a) provide the covered newspersons cannot “be adjudged in contempt ․ for refusing to disclose ․ the source of any information procured while [employed as a newsperson] or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.” (Emphasis added.) These provisions are clear and unambiguous—they apply to “any unpublished information” obtained while the newsperson is engaged in his or her job of “gathering, receiving or processing of information for communication to the public.” (Emphasis added.) There is no limitation to unpublished information obtained from a private or confidential source.
Inasmuch as the language of these provisions is clear and unambiguous, there is no need to construe them and the court may not go behind their terms in search of the intent of the Legislature or voters in order to construe them on that basis. (In re Lance W. (1985) 37 Cal.3d 873, 886, 210 Cal.Rptr. 631, 694 P.2d 744. Nor can the court add limiting terms not found in the provisions. (Code Civ.Proc., § 1858; In re Lance W., supra, at p. 886, 210 Cal.Rptr. 631, 694 P.2d 744.)
Two prior cases have looked at the term “unpublished information” to determine whether the provisions protect newspersons from revealing unpublished information obtained from a nonconfidential source, where some of the information obtained from the source has been published. (Playboy Enterprises, Inc. v. Superior Court (1984) 154 Cal.App.3d 14, 201 Cal.Rptr. 207, hg. den. May 16, 1984; Hammarley v. Superior Court (1979) 89 Cal.App.3d 388, 153 Cal.Rptr. 608, hg. den. May 10, 1979.) In Playboy Enterprises, Inc. v. Superior Court, supra, the court observed the shield laws provide two separate and independent protections: “(1) that against disclosure of confidential sources, and (2) that against disclosure of ‘unpublished information’ ‘․, whether or not published information based upon or related to such material has been disseminated.’ ․ This language does not allow the conclusion that protection of unpublished materials or information is dependent upon the continued confidentiality of the source.” (154 Cal.App.3d at p. 23, 201 Cal.Rptr. 207, emphasis deleted.) Hammarley v. Superior Court, supra, holds the protection of “unpublished information is not limited to material which might lead to the disclosure of a news[person's] confidential sources, but encompasses all information acquired by the news [person] in the course of his [or her] professional activities which [has not been] disseminated to the public.” (89 Cal.App.3d at pp. 397–398, 153 Cal.Rptr. 608.) These cases show the shield laws' protection is not limited to that unpublished information obtained confidentially.
The majority distinguishes Playboy and Hammarley on the ground they did not deal with eyewitness observations of a public event. The language of the shield laws provides no basis for this distinction; a recent case decided by Division Six of this district makes no such distinction. In New York Times v. Superior Court (1988) 215 Cal.App.3d 672, 248 Cal.Rptr. 426, rehearing denied July 14, 1988, a reporter for a newspaper owned by petitioner photographed an automobile accident; one of the parties to the accident brought a products liability suit against the manufacturer of an automobile involved in the accident, who then sought disclosure of the photographs. The court held such disclosure could not be compelled. (At p. ––––, 248 Cal.Rptr. 426.) Citing Playboy and Hammarley, the court stated, “The Constitution and the statute recognize that a news gatherer's information must be protected whether or not that information comes from a confidential source.” (Id., at p.––––, 248 Cal.Rptr. 426.)
The shield laws, by their express language, protect newspersons from having to disclose “any unpublished information” obtained in the course of their newsgathering activities. (Cal. Const., art. I, § 2, subd. (b); Evid.Code, § 1070, subd. (a); emphasis added.) They are thus shielded from the civic duty of ordinary citizens to testify as to their observations of public events when called upon by the courts to do so, when their observations are made while they are on the job. The Legislature and the voters have chosen to give them this protection in the interest of maintaining a free press, even at the cost of the loss of relevant evidence at trials. (New York Times v. Superior Court, supra, 215 Cal.App.3d at p. ––––, 248 Cal.Rptr. 426.) “However unwise [or unfair] that choice, it is not within this court's power to ignore the express [language of the provisions] and rewrite the[m].” (People v. Skinner (1985) 39 Cal.3d 765, 786, 217 Cal.Rptr. 685, 704 P.2d 752 (dis. opn. of Bird, C.J.).) Accordingly, I would deny the writ.
It may be noted that even with the broad protection offered by the shield laws, the criminal defendant's Sixth Amendment constitutional right to a fair trial is still protected and of paramount importance. (Hammarley v. Superior Court, supra, 89 Cal.App.3d at p. 402, 153 Cal.Rptr. 608.) The defendant may discover evidence protected by the shield laws where he demonstrates a reasonable possibility the evidence might result in his exoneration. (Playboy Enterprises, Inc. v. Superior Court, supra, 154 Cal.App.3d at pp. 24–25, 201 Cal.Rptr. 207; accord, Hallissy v. Superior Court (1988) 200 Cal.App.3d 1038, 1045, 248 Cal.Rptr. 635.) In the instant case, the trial court faced with the defendant's request for discovery should have held an in camera hearing to examine the evidence and balance the competing interests in order to rule on the request. (Hammarley, supra, at pp. 402–403, 153 Cal.Rptr. 608; cf. Rubin v. Superior Court (1988) ––– Cal.App.3d ––––, ––––, 88 Daily Journal D.A.R. 9478; People v. Boyette (1988) 201 Cal.App.3d 1527, 1534, 247 Cal.Rptr. 795.)
1. Evidence Code section 1070 and California Constitution, article I, section 2, subdivision (b), contain virtually identical provisions which immunize newspersons from being held in contempt for their refusal to disclose sources and certain other unpublished information. In this opinion we will sometimes collectively refer to these provisions as the “shield law.”Evidence Code section 1070 provides:“(a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.“(b) Nor can a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.“(c) As used in this section, ‘unpublished information’ includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.” (Emphasis added.)Article I, section 2, subdivision (b), of the California Constitution provides:“A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, shall not be adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.“Nor shall a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.“As used in this subdivision, ‘unpublished information’ includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.” (Emphasis added.)
2. For convenience, real parties in interest Kopetman and Bertero will sometimes be referred to as the Times reporters.
3. Although the opportunity has not yet presented itself, Delaney has indicated he also intends to call the Times reporters to the stand.
4. Delaney's misdemeanor prosecution is being held in abeyance pending appellate review of the contempt citations.
5. See footnote 1, ante.
6. It also expanded the scope of its provisions to include magazines and other periodicals.
7. See footnote 1, ante.
8. The shield law has always been limited in scope. It has never contained a privilege against disclosure. Rather, it merely provides “an immunity from being adjudged in contempt.” (Evid.Code, § 1070, Comment—Assembly Committee on Judiciary.) Although this immunity may effectively preclude forced disclosure where the newsperson is a nonparty witness, “[a] party to civil litigation who disobeys an order to disclose evidence ․ may be subject to a variety of other sanctions, including the entry of judgment against him. [Citation.] Neither Evidence Code section 1070 nor article I, section 2, subdivision (b), protects a party against such sanctions. [Citation.]” (Mitchell v. Superior Court (1984) 37 Cal.3d 268, 274, 208 Cal.Rptr. 152, 690 P.2d 625.)
9. The Times reporters also contend that their testimony cannot be compelled under the First Amendment to the United States Constitution. This argument was expressly rejected in Branzburg v. Hayes, supra, 408 U.S. at pages 682–683, 92 S.Ct. at pages 2657–2658, and no subsequent legal developments compel a contrary result.
10. The argument in favor of Proposition 5 provided:“The free flow of information to the public is one of the fundamental cornerstones assuring freedom in America. Guarantees must be provided so that information to the people is not inhibited. However, that flow is currently being threatened by actions of some members of the California Judiciary. They have created exceptions to the current Newsman's Shield Law, which protects the confidentiality of reporters' news sources. And the use of confidential sources is critical to the gathering of news. Unfortunately, if this right is not protected, the real losers will be all Californians who rely on the unrestrained dissemination of information by the news media.“This amendment merely places into the state's Constitution protection already afforded journalists by statute. That law, enacted in 1935, in clear and straightforward language, provides that reporters cannot be held in contempt of court for refusing to reveal confidential sources of information. At least six reporters in California in recent years have spent time in jail rather than disclose their sources to a judge. By giving existing law constitutional status, judges will have to give the protection greater weight before attempting to compel reporters to breach their pledges of confidentiality.“A reporter's job, of course, is not to withhold information, but to convey it to the public. In most cases, a reporter is able to reveal corruption and malfeasance within government only with the help of an honest employee. If such an individual feels that a reporter's pledge of confidentiality may be broken under the threat of jail, that person simply will not come forward with his or her information.“If our democratic form of government—of the people, by the people, for the people—is to survive, citizens must be informed. A free press protects our basic liberties by serving as the watchdogs of our nation. Citizens may agree or disagree with reports in the media, but they have been informed, and the final choice is made by the individual.“To jail a journalist because he protected his source is an assault not only on the press but on all Californians as well.” (Emphasis omitted and supplied.)
11. See footnote 10, ante.
12. The legislative analyst's summary provided, in pertinent part:“Background:“Since 1935, laws enacted by the California Legislature have protected the confidential information sources of persons employed by or connected with the news media. The law provides that such persons may not be held in contempt by a judicial, legislative, administrative body or other body having the power to issue subpoenas for refusing to (1) disclose the source of any information obtained by them for publication, or (2) reveal any unpublished information obtained in the preparation of a news story.“In recent years, California courts have held that these laws conflict with a court's authority under the California Constitution to protect its own processes and its duty arising under the Federal Constitution to conduct a fair trial.“In addition, the United States Supreme Court held in 1972 that the Federal Constitution's guarantee of freedom of the press does not give a newsperson the right to refuse to appear before a grand jury and testify about relevant information he or she has obtained, even though, in so doing, confidential sources may be divulged. The court recognized, however, that there was merit in allowing legislatures to set their own standards with respect to the relations between law enforcement officials and the press in their own states.“Proposal:“This measure would place in the California Constitution provisions of existing law enacted by the Legislature to protect news sources, thereby granting a state constitutional protection for these rights.”
13. “Public event” refers to an event which occurs in an area accessible to and readily detectable by the general public.
14. The Times reporters have also argued that the shield law is necessary because if media personnel were routinely subject to subpoena, the practical burdens on time and resources, as well as the consequent diversion of journalistic effort and disruption of newsgathering activity, would be inimical to a free press. While, as stated, we recognize the invaluable service provided to society by a free press, we cannot agree that the expenditure of time and resources that is required when a representative of the media is subpoenaed may be legally distinguished from a subpoena served on any ordinary citizen. It is frequently inconvenient and costly to perform the civic duty required by court process. We see no reason to accord special status to the media to be protected from such civic duty based solely on the practical burdens of compliance. Indeed, in this case the Times reporters were not shielded from appearing at Delaney's suppression hearing and responding to questions about matters which were covered in their published story.
15. Petitioners have also contended that any shield law protection was waived by the Times reporters and that under the facts of this case such protection should yield to the paramount rights of the litigants to obtain a determination of criminal liability based on the best available evidence. In view of our holding that the shield law is inapplicable to the testimony sought to be elicited from the Times reporters, we do not address these issues.
DEVICH, Associate Justice.
L. THAXTON HANSON, J., concurs.