W.Va. court to decide if privilege protects sources

A newspaper in West Virginia is attempting to maintain its privilege to refuse to disclose confidential sources after a lower-court judge ordered the paper to reveal the identities of anonymous sources and documents in a defamation suit against the paper.

The Lincoln Journal, the defendant in the suit, appealed the judge’s ruling to the state Supreme Court in order to keep its sources anonymous in the case. The court heard oral arguments Tuesday.

The case originated after the Journal published a series of articles alleging that the owner of a rival newspaper and other individuals illegally contributed money to local candidates in the 2008 primary elections. The articles cited several anonymous sources and Lincoln County Prosecuting Attorney William J. “Jackie” Stevens II, and referred to copies of two criminal complaints that had reportedly been submitted to Stevens and the paper but with the name of the law enforcement officer who prepared them blacked out. Lawyers for the now-defunct Lincoln Standard sued the Journal for libel in 2008 in a county circuit court.

Originally, the plaintiffs filed Freedom of Information Act requests and served subpoenas on the Lincoln County prosecutor’s office, the West Virginia secretary of state and the U.S. Attorney’s Office for information about who prepared the complaints. All three offices refused to disclose information and the plaintiffs then argued that the Journal should reveal the information. Cabell Circuit Judge F. Jane Hustead ordered the Journal to reveal the anonymous sources referred to in the articles and to turn over related documents.

Tom Robinson, editor and publisher of the Journal and a named defendant in the suit, attended Tuesday’s oral arguments and “feel[s] that the state Supreme Court will rule that The Lincoln Journal does not need to reveal our sources,” he said. During the proceeding, members of the high court criticized the plaintiffs’ counsel for not providing the court with all of the allegedly defamatory articles at issue in the case, according to a report from Charleston-based West Virginia MetroNews Network.

West Virginia does not have a state shield law, which would protect journalists from having to testify and provide the names of sources or other information gathered while reporting. Part of the protection reporters have comes from a 1989 state Supreme Court ruling that said that reporters in West Virginia have a qualified privilege regardless of the fact that there is no shield law.

"To protect the important public interest of reporters in their news-gathering functions under the First Amendment to the United States Constitution, disclosure of a reporter's confidential sources or news-gathering materials may not be compelled except upon a clear and specific showing that the information is highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources,” according to the opinion in Hudok v. Henry.

However, in the same ruling, the court cited an earlier federal appellate case, noting there is a distinction when it comes to libel suits. A 1981 case by the U.S. Court of Appeals in Washington, D.C., Zerilli v. Smith, “also recognized the distinction between civil actions in which the reporter is a party and those in which he is not. Where the reporter is a party, and particularly in a libel action, ‘the equities weigh somewhat more heavily in favor of disclosure.’”

Delegates of the West Virginia State Legislature introduced a bill in 2007 to enact a shield law, but as written, the bill appeared weaker than the law enacted by the Hudok decision, according to The Reporters Committee for Freedom of the Press’s privilege compendium. The bill never made it out of committee. Currently, 39 states and Washington, D.C., have adopted shield laws.