‘The Donald’ inadvertently bolsters shield laws

Friday, October 31, 2008

Thanks to Donald Trump, we now know how effective shield laws are supposed to work.

Though Trump likely never intended to ensure that New York and New Jersey are safe for confidential sources, his lawsuit against book author Timothy O’Brien has done just that. On Oct. 24, New Jersey’s Superior Court held the states’ shield laws prevented Trump from requiring O’Brien to disclose three sources who said Trump’s net worth was considerably less than the developer claimed.

In 2005, O’Brien published TrumpNation, a biography of Trump that the court described as “written in a breezy, irreverent style” and “light and somewhat facetious in tone.” As the court noted, however, O’Brien has written for several newspapers and magazines, including The Wall Street Journal and The New York Times. O'Brien also wrote a 1998 book and 2004 Times series about Trump's casino dealings.

In TrumpNation, O’Brien wrote (as he had similarly written in the Times series) that “[t]hree people with direct knowledge of Donald’s finances, people who had worked closely with him for years, told me that they thought his net worth was somewhere between $150 million and $250 million.”

Trump sued, claiming to be a multi-billionaire and alleging that O’Brien’s low estimate of his wealth injured his reputation and harmed his credit and business interests.

During pretrial discovery, Trump sought considerable information from O’Brien, including the names of the three sources and materials regarding the book’s editorial process. O’Brien refused to provide the names, citing his privilege to protect their anonymity under New York’s and New Jersey’s shield laws. He also said the laws protected information about the editorial process.

O’Brien cited both states’ laws because he could not be sure which applied. Trump argued that New York law should apply, citing the facts that he lives in New York, many of his business interests are located there, O’Brien’s career is centered there and TrumpNation was published there. O’Brien, on the other hand, argued New Jersey’s statute should apply, citing his residence in New Jersey and the fact that Trump sued there.

Trump sought application of New York law because the New Jersey shield law provides journalists an absolute privilege against being required to disclose any source or any information gathered in the pursuit of news. New York’s shield law, by contrast, provides absolute protection only to confidential sources. A litigant can obtain non-confidential information upon a showing that the information is highly material, necessary to the litigant’s claim and not obtainable elsewhere.

After acknowledging that under New Jersey law O’Brien would win, “no doubt about it,” the trial judge concluded New York’s statute applied. But the judge then held the New York shield law did not protect the sources or any of the other materials because TrumpNation constituted entertainment, not news. Moreover, the judge said, the New York law did not protect the sources because O’Brien had not designated the sources as confidential in the book’s endnotes, as he had done with other anonymous sources in the book.

On appeal, the Superior Court reversed in Trump v. O’Brien.
Applying the New York shield law (but also holding the New Jersey law would offer at least as much protection), the court first rejected Trump’s argument that the law did not apply to book authors, noting that legislation amending the law in 1981 expressly was designed to cover authors. Second, the court rejected the trial judge’s statement that “the tone sets what the book is” in holding that a non-fiction work focusing on matters of public interest — whatever its tone — falls within the shield law’s definition of “news.”

“[W]e find a danger, recognized in the allied areas of privacy law and defamation,” the court observed, “in simply weighing the entertainment value against the news value of a non-fiction publication and according Shield Law protection or not on our essentially subjective view of which is the weightier.”

Next, the court found O’Brien’s sources indeed were confidential, relying on O’Brien’s testimony that he promised confidentiality and noting that no precedent exists to support the trial judge’s view that confidential sources must be expressly designated as such. Moreover, the court said, “common sense supports the sources’ desire for confidentiality since, if identified, it appears inevitable they would be named as defendants in Trump’s defamation suit and would likely suffer additional personal and economic consequences.”

The court then turned to O’Brien’s ability to protect information about the editorial process. The court held Trump had failed to show that the material was relevant or critical to the lawsuit and concluded the information therefore was privileged.

Interestingly, the court then went a step further, holding that, even if information about the editorial process were not protected by the shield law, it was privileged under the First Amendment. In doing so, however, the court failed to note that the prior cases recognizing the importance of editorial independence were not cases in which the publisher was being sued for defamation.

In defamation cases, courts usually have allowed plaintiffs to explore fully how the allegedly libelous statement was written, edited and published. Without this ability, many libel plaintiffs would be denied even the chance to meet their heavy evidentiary burdens. Because the Superior Court did not mention this precedent, it seems unlikely the court intended to overrule those cases and to expand protections from libel suits as dramatically as a literal reading of the court’s opinion suggests.

Nevertheless, the decision in Trump is a strong affirmation of the rights of newsgatherers in New York and New Jersey and, with discussions about a federal shield law likely to resume after the election, a timely reminder of how important and effective strong shield laws can be. For some, the fact that we have Trump to thank for the decision will only make it that much more satisfying.

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