Lightman v. State

Murphy, C. J., delivered the opinion of the Court. Appellant, a newspaper reporter for the Baltimore Evening Sun, was summoned before the Grand Jury of Worcester County on August 9, 1971 to testify with respect to his knowledge of suspected illegal drug traffic in Ocean City, Maryland. Earlier, on July 26, 1971, appellant had published an article in The Evening Sun under his byline which was entitled “Ocean City: Where the Drugs Are?”; it was the product of a special assignment given him by his editors to investigate the activities of young people at Ocean City, particularly those relating to the use and selling of drugs. 1 The article described an incident occurring in a pipe shop located near the lower end of the Boardwalk. It read, in part: “A shop near the lower end of the Boardwalk wants to be sure its customers are satisfied with the pipes they buy.

So salesmen sometimes let them draw some marijuana before they make a purchase. “The shop has pipes for all purposes — combination pipes, with bowls for opium, tea and hash; adjustable pipes for smoking pot with ⁷¹⁵ and without water; buckle pipes, which clip on to one’s belt buckle (and are thus easily camouflaged), and others. “Last Friday night, a uniformed Ocean City policeman was standing in another part of the shop. The shopkeeper, her legs stretched out on a water bed in the next room, tried to explain uses of the various pipes to a customer. “The shopkeeper asked him if he would like to ‘draw some grass.’ He pointed to the officer. “ ‘Don’t worry about him. We have a lot of cops come in. You know, it’s rough for them, most are under 21.

We’re nice to ’em, so they don’t come sniffing around.’ The customer declined the offer. “Wherever young, long-haired, freaky-looking people are gathering, policemen seem to be watching them in Ocean City. The police are usually about the same age as the hangers-on. # * * “The woman in the pipe store for example is 22. T don’t think grass will hurt you, so I sell this head stuff. And I smoke cigarettes because I figure they hurt you until you’re older. “ ‘But these other drugs just aren’t worth it.

After you’ve turned on to acid or coke a few times, you realize how temporary it is.’ “She says she does not use any drugs herself.” The Grand Jury asked appellant, based on his personal observation, to state the location of the pipe shop referred to in his article, and provide it with a description of the shopkeeper. Appellant refused to answer, claiming that the shopkeeper was the source for his article; that disclosure of the information sought by the Grand Jury would, with a high degree of probability, lead to the actual disclosure of his source of information; that by the express provisions of Maryland Code, Article 35, ⁷¹⁶ Section 2, he could not, as a newspaperman, “be compelled to disclose, in any legal proceeding or trial * * * the source of any news or information procured or obtained by him for and published in the newspaper * * ; and, further, that under the federal and state constitutional guarantees of freedom of speech and press, he possessed a right, as a newspaperman, not to answer the Grand Jury’s inquiries. The State’s Attorney promptly instituted constructive contempt proceedings against appellant; he maintained that the information sought by the Grand Jury from appellant was not of his source of news, but involved information based on appellant’s personal knowledge obtained by him “solely upon his personal observations.” At the hearing on the contempt charge, appellant testified that he was twenty-one years old; that he had been sent by his editors to Ocean City “to obtain a story on how open drug use and sales were in Ocean City”; that his editors had indicated that they had heard rumors that drugs were being used and sold openly on the Boardwalk and anyone “with my length of hair” and of his age, or younger, could obtain drugs simply by being friendly enough with the right people. Pursuant to these instructions, appellant testified that he went to Ocean City where he mingled with people of his own age group, walked around and entered shops; and that his investigative efforts ultimately led him in July of 1971 to the shop and shopkeeper referred to in his article.

He testified that he had spoken with the shopkeeper and that she had given him the information published in his article. He stated that he had been told by his editors that he could reveal his identity as a reporter or not, as he wished; and that “at times” he gave away his identity. It was stipulated that appellant was the “customer” referred to in his article who had the conversation with the shopkeeper. In finding appellant’s refusal to answer the Grand Jury’s inquiry to constitute a civil contempt, the court noted that there had been no testimony that he did in ⁷¹⁷ fact identify himself to the shopkeeper as a newspaper reporter.

The court also found that there had been no testimony that the shopkeeper gave appellant any information based upon the representation or knowledge that he was a newspaperman. The court concluded that the shopkeeper was not a “source” of information for appellant’s article within the meaning of Article 35, Section 2; that appellant was a stranger to the shopkeeper and what he heard was not conveyed to him in confidence. The court also concluded that appellant’s constitutional rights of free speech and press would not be violated by requiring that he provide the Grand Jury with the information it sought. This appeal followed.

I The Newsman’s Statutory Privilege of Non-Disclosure of Sources of News Obtained for Publication No privilege was afforded newsmen at common law to conceal from judicial inquiry either the source of their information or the information itself. Garland v. Torre, 259 F. 2d 545 (2nd Cir.); Branzburg v. Pound, 461 S.W.2d 345 (Ky.) ; Beecroft v. Point Pleasant Printing & Pub. Co., 197 A. 2d 416 (N.J.) ; State v. Donovan, 30 A. 2d 421 (N.J.); People v. Sheriff of New York County, 199 N. E. 415 (N.Y.) ; Annotation, 7 A.L.R.3rd 591; 3 Jones on Evidence, Section 854. Maryland, in 1896, was the first state to enact a statute changing the common law to give a newspaperman the privilege of not revealing the source of information published by him. 2 State v. Sheridan, 248 Md. 320, 322 .

Now codified as Section 2 of Article 35, the statute in its present form provides: ⁷¹⁸ “No person engaged in, connected with or employed on a newspaper or journal or for any radio or television station shall be compelled to disclose, in any legal proceeding or trial or before any committee of the legislature or elsewhere, the source of any news or information procured or obtained by him for and published in the newspaper or disseminated by the radio or television station on and in which he is engaged, connected with or employed.” 3 In State v. Sheridan, supra, a newsman refused to reveal to the Grand Jury the details of a conversation between him and one Patrick relating to certain suspected irregularities, even though the substance of the conversation had previously been disseminated to the public and Patrick revealed as its source. The lower court held that under the Maryland statute the newsman could not be compelled to answer the Grand Jury’s inquiries; that his newspaperman’s privilege “of never violating a confidence allowed him to remain silent as to the details of the information Patrick had given him.” While the Court of Appeals dismissed the appeal to it from that ruling on grounds of mootness (the Grand Jury’s term having expired), it characterized the lower court’s conclusion as inexplicable “since the statute makes inviolate only ‘the source of - any news or information’ and not the ‘news and information’ itself.” At page 322. The court in Sheridan criticized the holding of the Supreme Court of Pennsylvania in the case of In Re Taylor, 193 A. 2d 181 , involving a newsman’s privilege statute which, like the Maryland statute, protected newsmen from disclosing “the source of any [published] information.” In Taylor the court concluded, in effect, that the phrase “source of any information,” as used in the statute, included not only the identity of a person, but also the information it ⁷¹⁹ self. The Sheridan court indicated at page 322 that the Taylor court “failed to discriminate on the facts and the law between the source of the information and the information”; it referred to 77 Harv.

L. Rev. 556 , where the author, expressing a belief that the court in Taylor blurred the distinction between the words “source” and “information,” as used in the statute, said: (p. 557) “* * * To ask someone for information as such is to ask what, substantively, he knows about a certain problem; to ask someone for the ‘source’ of his information is, in effect, to ask how he knows. The reasons for making the answer to the latter inquiry privileged do not necessitate making the answer to the former privileged as well. * * *” In its opinion in Sheridan , the court also referred to 112 U. Pa. L. Rev. 438 , where the author, in criticizing the Taylor decision, observed that newsman’s privilege statutes, like those in force in Maryland and Pennsylvania, merely provide that a newsman cannot be forced to divulge his sources; that when it granted the “newsman privilege” the legislature was concerned with the usual case in which an informant makes disclosures under the stipulation that his identity remain unknown; and that unlike other privileged communication statutes, the newsman’s privilege statute has as its primary focus the protection of the identity of the informant and not the information itself. In State v. Donovan, 30 A. 2d 421 (N.J.), referred to in Sheridan as a decision to be contrasted with Taylor , a newsman declined to answer a question propounded to him in a judicial inquiry relating to news articles he had published on the ground that he was protected from such inquiry by a newsman’s privilege statute, the provisions of which, in all material respects, are identical to those in the Maryland statute.

The court there noted that the source of the news articles was already known to the public; that the newsman’s privilege statute, being in ⁷²⁰ derogation of the common law, was strictly to be construed; that the statute, in terms, protected newsmen only from being compelled to disclose “the source of any information [published] in the newspaper”; and that since the source was known, the newsman could be compelled to answer a question which “did not go to the source of the publication.” 4 At p. 426. Branzburg v. Pound, 461 S.W.2d 345 (Ky.), 5 involved a newsman’s privilege statute in all material respects identical to the Maryland statute. In that case, a newspaper reporter wrote an article describing in detail his observations of two young persons synthesizing hashish from marihuana. The article stated that the reporter had promised not to reveal the identity of the two hashish makers.

Summoned before the Grand Jury, Branzburg was asked to identify the persons about whom he wrote and those in possession of and compounding marihuana; he refused and was held in contempt. On appeal, Branzburg contended that “source of information” should be construed to mean all knowledge received by a newsman no matter what the source; and that when a newsman observes something, the thing observed is itself the source of the information. The court, rejecting Branzburg’s arguments, concluded that the statute “granting immunity to a newsman from disclosing the source of any information procured or obtained by him, grants a privilege from disclosing the source of the information but does not grant a privilege against disclosing the information itself.” At p. 347. The court said: “Information as used in the statute refers to the things or the matters which a reporter learns and source refers to the method by which or to the person from whom he learns them. “In this case the reporter learned that two men were engaged in the process of making ⁷²¹ hashish.

Their identity, as well as the activity in which they were engaged, was a part of the information obtained by him, but their identity was not the source of the information. “The actual source of the information in this case was the reporter’s personal observation. In addition some informant may have provided him with information that at a certain time and place he could observe the process of conversion of marijuana into hashish. If such was the case we have no doubt that the identity of the informant was protected by the statute. “The reporter, however, was not asked to reveal the identity of any such informant and his privilege from making that disclosure is not in question. He was asked to disclose the identity of persons seen by him in the perpetration of a crime and he refused, urging as a justification for such refusal, that the statute should be given a broad construction extending his privilege against disclosure to all his knowledge of this incident rather than just the source of the knowledge. * * * “In all likelihood the present case is complicated by the fact that the persons who committed the crime were probably the same persons who informed Branzburg that the crime would be, or was being, committed.

If so, this is a rare case where informants actually informed