Court of Appeals rules reporter won’t have to reveal confidential source

A Twin Cities investigative reporter will not have to reveal his anonymous source in a defamation suit brought by an assisted living facility in Chisholm, the Minnesota Court of Appeals has ruled.

The owner of Hillcrest Terrace sued then Star Tribune reporter Paul McEnroe following his April 2013 story that the facility left a man with developmental disabilities and mental illness “alone and sitting in filth.” The story was based on a not-yet-released Minnesota Department of Health report that was leaked to McEnroe.

Who leaked it? McEnroe wouldn’t say other than to say he wrote the story based only on the report, and not on any additional information provided by a confidential source.

But Range Development Company, which owns the facility, said there was material in McEnroe’s story that wasn’t in the report, and a district court judge ordered McEnroe to reveal his source.

Today, the Minnesota Court of Appeals ruled he doesn’t have to.

“This case stands at the intersection of common-law defamation, the First Amendment right to free speech, and the parameters of a journalist’s privilege, if any, under the First Amendment,” Judge Lucinda E. Jesson wrote.

It’s an intersection the court has been at before, she said, referring to a 1997 case in which Ramsey County court administrator Robert Bauer sued KARE television for a story showing him taking smoking breaks and golfing during hours that he would normally be scheduled to work.

But Jesson, writing for a three-judge panel, said decades of challenges to a reporter’s right to protect a source has failed to resolve definitively the limitations, if any, on that right.

“While over half a century of debate has not resolved the journalist’s-privilege question, it has engendered at least 26 state shield laws, which provide varying amounts of protection to journalistic sources,” she said.

Minnesota passed a law in 1973, which says:

In order to protect the public interest and the free flow of information, the news media should have the benefit of a substantial privilege not to reveal sources of information or to disclose unpublished information. To this end, the freedom of press requires protection of the confidential relationship between the news gatherer and the source of information. The purpose of section[s] 595.021 to 595.025 is to insure and perpetuate, consistent with the public interest, the confidential relationship between the news media and its sources.

There are exceptions, however.

“Specifically, a court may order disclosure of a confidential source if ‘the person seeking disclosure can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice,’” Jesson said, adding the court is unpersuaded that revealing the source would lead to the finding of malice.

Range points to two possible connections between the confidential source and relevant evidence of falsity or actual malice. First, Range argues that McEnroe’s claim that all his information for the article came from the report was inconsistent with facts stated in the article. For example, the MDH report never stated that the resident was “unconscious” and “barely alive,” as McEnroe reported. Rather, the MDH report stated the resident “was found unresponsive.” Range sought to learn where this “other information” came from and posited that it could have come from the confidential source.

It was on this basis—that the news article “arguably deviate[s] significantly” from the report—that the district court ordered disclosure of the source. The second connection, argued on appeal, is that the source will be able to provide evidence about how the preliminary MDH report given to McEnroe differed from the public report released several days later.

We are not convinced that these justifications demonstrate that the identity of the source will lead to persuasive evidence of falsity or actual malice. With regard to the first argument, there is no evidence that McEnroe discussed anything of substance with the confidential source. McEnroe states that he relied only on the report and did not receive other oral information from the source who provided him with the report.

We conclude that Range has provided only speculation that disclosing the identity of the source would lead to information relevant to proving or disproving the element of actual malice.

Jesson said the burden to prove that a confidential source acted with malice in providing information to McEnroe rests with the assisted living center. It’s not McEnroe’s burden to prove the source didn’t.

McEnroe has since left the Star Tribune and is now the head of investigations for KSTP.