$100-a-minute fine against reporters ruled excessive

From the Summer 2002 issue of The News Media & The Law, page 16.

A Pennsylvania appeals court upheld a contempt order against two Philadelphia newspaper reporters but rejected fines totaling $80,000 as “harsh and excessive.”

The state Superior Court in Philadelphia ruled 2-1 on May 29 that a trial judge correctly held Philadelphia Inquirer reporter Mark Bowden and Philadelphia Tribune reporter Linn Washington Jr. in contempt for refusing to provide information from interviews with a murder suspect.

Philadelphia Common Pleas Judge Jane Cutler Greenspan (1st Dist.) found the reporters in contempt on Dec. 13, 2000, during the murder trial of Brian Tyson. She ordered them to pay a fine of $100 per minute, which accumulated to $40,000 for each reporter during seven hours of the trial. The fines were suspended during the appeal.

“Such a steep sanction on reporters is unprecedented in Pennsylvania, and we have little difficulty in ruling this an abuse of discretion,” the appeals court ruled, sending the case back to the trial court to set a “more appropriate dollar amount.”

State prosecutors are appealing the ruling on the fine to the state Supreme Court, said Bob Clothier, Bowden’s attorney. The reporters are asking the state Supreme Court to overturn the trial judge’s order for their testimony and the Superior Court’s finding that they could be held in contempt, Clothier said.

Bowden and Linn interviewed Tyson before Tyson’s trial for shooting and killing Damon Millner, a neighbor and drug dealer. Tyson told police he killed Millner in self-defense. He told the reporters about the problems drug dealers brought to his neighborhood and that, at the time of the shooting in 1997, he had been in a two-year feud with local drug dealers.

After the reporters published their articles, prosecutors subpoenaed them for their testimony and unpublished notes from the interviews with Tyson. The trial judge later narrowed the request to any statements Tyson made involving the shooting or his relationship with drug dealers in his neighborhood.

In upholding the contempt order, the appeals court held that the reporters had a First Amendment privilege against forced disclosure of information. But prosecutors had overcome the privilege by showing that they could not obtain the information from another source and that the information was relevant and crucial to their case, the court held.

Tyson was the only other source for the information, but prosecutors should not be expected to rely on him, Judge Peter Paul Olszewski wrote for the majority. Also, the reporters’ information was relevant and crucial to countering Tyson’s self-defense claim and for impeaching his credibility, Olszewski wrote. Tyson was convicted without the information from the reporters.

Pennsylvania’s shield law, which protects reporters from forced disclosure of the source of any information, did not apply because prosecutors had an “important constitutional need” central to the criminal case, the court held.

In a dissenting opinion, Judge Correale F. Stevens wrote that the ruling “incorrectly further restricts the First Amendment rights which are so important to freedom of speech and of the press.” He also believed the state shield law should have protected the reporters. (Pennsylvania v. Tyson) — MD