Illinois high court deals crippling blow to journalistic privilege

Friday, February 11, 2000

It may be a long run, but make no mistake about it: the Illinois Supreme Court’s decision in People v. Pawlaczyk is an end run around the Illinois Reporter’s Privilege Act.

The unanimous decision requires two newspaper reporters to divulge their confidential sources for a story identifying a former police chief as a suspect in a sexual assault investigation. Predictably, the lawyer representing the newspaper and the reporters attacked the decision. Surprisingly, however, the Illinois Press Association refused to criticize the court.

Joe Thorton, an IPA lawyer, told the Associated Press he did not believe the justices weakened the state law. “They’re carefully applying the act to these very, very unusual circumstances,” Thorton said.

While Thorton correctly characterizes the facts in Pawlaczyk as unusual, little in the court’s ruling suggests this precedent will be limited to unusual cases. Instead, the decision appears to have universal — and dangerous — applicability.

The facts in Pawlaczyk defy short summary. Suffice it to say, however, that one of the journalists, George Pawlaczyk, reported in the Belleville News-Democrat that Robert Hurst, a former Belleville police chief, had been questioned in a rape investigation. In preparing that story, Pawlaczyk relied on information obtained from confidential sources.

After Hurst was cleared as a suspect, he brought a variety of claims against the newspaper and several other people. Among the defendants were Roger Cook, the Belleville mayor, and James Brede, the president of Belleville’s board of police and fire commissioners. Cook and Brede, Hurst alleged, were Pawlaczyk’s undisclosed sources.

During the lawsuit, both Cook and Brede denied under oath that they were sources for the story. Pawlaczyk and the other reporter, Marilyn Vise, initially refused to identify their sources. When ordered to do so, however, Vise later said that Cook had been her source. Information obtained from other witnesses also pointed to Cook and Brede as the sources.

At the request of the state’s attorney, the trial court appointed a special prosecutor to investigate whether Cook and Brede had perjured themselves. Before a grand jury, Cook and Brede again denied they were sources for the article. Vise and Pawlaczyk refused to disclose their sources to the grand jury, relying on the protections provided in the Reporter’s Privilege Act.

The special prosecutor argued that the identities of the sources were not privileged under the law because they were relevant to an important grand jury proceeding. The trial court agreed and ordered the reporters to disclose the sources. An Illinois appellate court affirmed that ruling.

In upholding the decisions of the lower courts, the Illinois Supreme Court concluded that, under the law, the information was not privileged because (1) the identities were relevant to the grand jury proceedings and (2) the disclosure was essential to the protection of a public interest. The court’s analysis, however, was flawed in at least two respects.

First, the court disregarded the law’s requirement that reporters can be compelled to testify only when the desired information is not available from anyone else. While recognizing that other witnesses had testified before the grand jury that Cook and Brede had been the sources, the court dismissed the significance of this testimony, saying that only the reporters could “definitively” confirm or deny Cook’s and Brede’s statements.

The simplicity of this view guts the law. In almost every case brought under the law, the reporter’s testimony always will be the most definitive. If this is truly the test, the reporter’s privilege will cease to exist.

Second, the court held that the proper functioning of a grand jury always is a compelling enough interest to outweigh the reporter’s privilege. The court based this holding on the U.S. Supreme Court’s 1972 decision in Branzburg v. Hayes, in which the court refused to recognize a First Amendment protection for newsgathering. The Illinois court, however, ignored the fact that the Illinois law was adopted after Branzburg to grant some of the protections the Supreme Court had refused to recognize. By adopting the Branzburg rationale, the Illinois court stripped the state law of its meaning.

Under Pawlaczyk, reporters who have first-hand information about alleged criminal activity now apparently can be required to disclose that information in any grand jury or other proceeding, even if other sources for that information exist. While Pawlaczyk will not apply in every case, it gives prosecutors a frightening new weapon in their increasing efforts to obtain reporters’ testimony.

Reporters, of course, can hope that prosecutors will use this weapon only in cases as unusual as Pawlaczyk. If prosecutors typically demonstrated such self-restraint, however, the law never would have been necessary.

Douglas Lee is a partner in the Dixon, Ill., law firm of Ehrmann Gehlbach Badger & Lee and a legal correspondent for the First Amendment Center.