NEFAC, SPJ Oppose Efforts By New Hampshire Prosecutors to Obtain Reporter’s Interview Notes

CONTACT Justin Silverman | 774.244.2365 |

The New England First Amendment Coalition and the Society of Professional Journalists strongly oppose an attempt by New Hampshire officials to force the disclosure of materials collected by a local journalist during a jailhouse interview last year.

While reporting for Foster’s Daily Democrat – a publication owned by Seacoast Media Group – journalist Brian Early met with Joshua Flynn, an inmate at the Strafford County House of Corrections who is awaiting trial on sexual assault charges. To help possibly strengthen their case against Flynn, state prosecutors filed a motion to compel on Jan. 29 seeking from Early any unpublished information collected during the interview.

This decision by prosecutors is an affront to the First Amendment. It impedes the newsgathering process and improperly seeks to employ the Fourth Estate as an investigatory tool of the government. As attorney Gregory V. Sullivan, a member of NEFAC’s Board of Directors who is representing Seacoast Media Group, argued to the court:

“[A] government that requires the press to produce to it unpublished materials degrades the autonomy and independence needed by the press to fulfill its role in educating and informing the citizenry.”

This decision by prosecutors is an affront to the First Amendment. It impedes the newsgathering process and improperly seeks to employ the Fourth Estate as an investigatory tool of the government.

Unlike other citizens who may possess possible evidence, journalists enjoy a qualified privilege under the First Amendment and the New Hampshire Constitution. This privilege generally allows them to gather news without being forced to testify about the information they collect. Rare exceptions can occur when the information is not just highly relevant to a case, but it’s also critical to the case moving forward and it can’t be obtained anywhere else. This test, which is used in various forms by courts in nearly every state, is a stringent one.

The bar is set high for good reasons. If prosecutors can freely compel journalists to testify, newsrooms would be hamstrung by the needs of courtrooms. There simply wouldn’t be enough time or resources for journalists to effectively do their job while also answering the calls of prosecutors. Sources – even non-confidential ones – may also be reluctant to speak with journalists for fear that the information they provide would be used for governmental purposes and not their own. A 2009 study published in the Washington Law Review found that compelled disclosure can negatively affect newsroom time, material-retention policies and story coverage itself.

Even with constitutional protections in place, legal demands for information often require newsrooms to spend money on litigation that would otherwise be spent on journalism. In fact, nearly two-thirds of the editors who responded to a 2016 study by the Knight Foundation said the news industry is less able to pursue legal activity around First Amendment issues than it was a decade ago. A majority of those editors said news organizations are simply not prepared to go to court because they lack the money to do so. Meanwhile, those uncontested demands for information chip away at the wall between the free press and the government.

Every time a journalist is compelled to provide 
information, the perception of agency grows stronger.

For watchdog journalists, that wall is vital. The First Amendment provides the freedom to seek out information about the government and to hold leaders accountable. But that freedom becomes worthless if journalists are perceived as agents of the government they are tasked with monitoring. Every time a journalist is compelled to provide information, the perception of agency grows stronger. As the U.S. Supreme Court determined in Branzburg v. Hayes, a 1972 decision that helped recognize a qualified reporter’s privilege, the government is not free to “annex” the news media as “an investigative arm.”

That is why the case in New Hampshire is so troubling. Without knowing the specific content of Early’s interview with Flynn, prosecutors are demanding the reporter provide materials that, they hope, will reveal information helpful to their case. It’s a tactic made out of convenience, not necessity as the First Amendment requires. If the effort is successful, the information Early provides may or may not help the prosecution. It will, however, likely embolden other prosecutors to make similar unnecessary motions.

NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.

Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Please make a donation here.

Major Supporters of NEFAC include the Barr Foundation, The Providence Journal Charitable Legacy Fund, The Robertson Foundation, The Boston Globe, WBUR and Boston University.