CHARLESTON, W.Va. — West Virginia’s Supreme Court has ruled in favor of a newspaper in a dispute over confidential sources, but the decision will soon be eclipsed by a new state law barring disclosure of such sources in most cases.
The justices unanimously concluded earlier this month that Cabell County Circuit Judge Jane Hustead erred when she ordered the Lincoln Journal to reveal sources from a series of articles on Lincoln County’s 2008 primary.
The Journal had reported on allegations that the publisher of a rival newspaper had funneled money through other individuals to a slate of candidates. Two of those contributors sued, alleging the series of articles were false and had defamed them.
The Supreme Court’s May 2 ruling faulted Hustead for not following a standard set by a decision it issued in 1989. That standard says a reporter can’t be compelled to reveal confidential sources “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.”
Voiding Hustead’s order, the justices required her to hold a hearing based on the 1989 standard. But while the Lincoln Journal’s appeal was pending, the Legislature passed a law that replaces that standard.
Signed by acting Gov. Earl Ray Tomblin on April 4, the legislation protects a reporter’s confidential sources until the information “is necessary to prevent imminent death, serious bodily injury or unjust incarceration.”
The new law takes effect June 10. West Virginia becomes the 39th state to enact a reporter “shield law,” according to the nonpartisan Reporters Committee for Freedom of the Press. When Tomblin signed the bill, the group noted that it “provides journalists with a nearly absolute reporter’s privilege to refuse to disclose the identity of confidential sources.”
Attorneys declined to comment on whether the new law could affect the pending defamation case.
Thomas Scarr, a lawyer for the campaign contributors who sued, Timothy Butcher and Bobby Adkins, said Hustead has yet to schedule a hearing since the court’s ruling. Citing the case’s pending status, he declined further comment.
David Barnette, the Lincoln Journal’s lawyer, welcomed the Supreme Court’s decision. Barnette also represents the West Virginia’s Broadcasters Association, which championed the shield law legislation. Barnette said the broadcasters have lobbied for such a measure for four years.
Timothy Butcher is the brother of Dan Butcher, who was publisher of the now-closed Lincoln Standard and the subject of the rival paper’s articles. Both Timothy Butcher and Adkins had previously been employed by Dan Butcher, according to filings in the case.
In declining to reveal its confidential sources, the Lincoln Journal said in court filings that the primary sources for each of the articles was either Lincoln County Prosecuting Attorney Jackie Stevens or written allegations regarding campaign contributions provided anonymously both to Stevens’ office and the newspaper.
The Lincoln Journal said that the confidential sources, who declined to be identified because they feared reprisal, helped support some of the allegations contained in the newspaper series.
“They contend that none of the articles is based solely on information from an undisclosed source,” the Supreme Court’s ruling said.
Timothy Butcher and Adkins have challenged that position. The Lincoln Journal also argues that the two contributors had failed to pursue the Freedom of Information Act requests and civil subpoenas they had filed with Stevens as well as state and federal officials with possible information about the election-related allegations. The plaintiffs contend that the officials have refused their requests, and that appealing those requests would prove futile.LAWRENCE MESSINA Associated Press
May 19, 2011