Lebowitz v. City of New York

948 F. Supp. 2d 392, 2013 WL 2480662, 2013 U.S. Dist. LEXIS 82428
CourtDistrict Court, S.D. New York
DecidedJune 11, 2013
DocketNo. 12 Civ. 8982(JSR)
StatusPublished

This text of 948 F. Supp. 2d 392 (Lebowitz v. City of New York) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lebowitz v. City of New York, 948 F. Supp. 2d 392, 2013 WL 2480662, 2013 U.S. Dist. LEXIS 82428 (S.D.N.Y. 2013).

Opinion

MEMORANDUM ORDER

JED S. RAKOFF, District Judge.

Plaintiffs Claire Lebowitz and Keegan Stephan bring this action under 42 U.S.C. § 1983 against the City of New York, NYPD Patrol Officer Adrianne Edwards, and NYPD Officer Does 1-10 (collectively, the “City”), asserting claims related to plaintiffs’ arrest in Zuccotti Park on January 10, 2012, and their treatment immediately thereafter. The City has served a testimonial subpoena on nonparty Colin Moynihan, a freelance journalist for the New York Times, regarding an article he wrote about the events at Zuccotti Park on the date in question. In particular, the City seeks to depose Moynihan about whether, as reported in his article, plaintiffs were warned that they could not lie down in the park before they were arrested. Moynihan now moves to quash the subpoena on the ground that the information sought is protected by the reporter’s privilege. For the reasons that follow, that motion is granted.

The facts pertinent to this motion are not in dispute. According to the allegations in the plaintiffs’ amended complaint, on January 10, 2012 plaintiffs were participating in a peaceful gathering in and around Zuccotti Park. Am. Compl. ¶¶ 3-4, 54. Barricades blocking access to the park had been removed earlier that day as a result of a court victory obtained by parties associated with the Occupy Wall Street movement, which had first arisen in Zuccotti Park the previous fall. Id. ¶¶ 4, 54. Late in the evening, after the crowds had dispersed, plaintiffs were lying down on a bench in the park, and were then arrested for violating park rules. Id. ¶¶ 7-9, 25, 55-57. Plaintiffs allege that before they were arrested, they never heard or received a warning that they were not permitted to lie down in the park. Id. ¶¶ 14, 59.

Mr. Moynihan has extensively covered the Occupy Wall Street movement, and was present at Zuccotti Park on the day in question. Decl. of Colin Moynihan (“Moy-nihan Deck”), ¶¶ 3-4. The next day, January 11, 2012, Moynihan published a blog post (the “Article”) entitled “Barricades Come Down at Zuccotti Park” on the New [394]*394York Times’s “City Room” blog. Id., ex. A. Insofar as relevant here, the Article states that “[a]t about 2 a.m., a security guard told a man and a woman lying on a granite bench there to get up. They did not immediately rise. Moments later both were arrested and led away.” Id. It appears likely that the man and woman described in the article are in fact the plaintiffs, and the City now seeks to compel Moynihan to testify to confirm that plaintiffs were given a warning before they were arrested.

In the interest of protecting a vibrant free press from unwarranted intrusion, courts have held that journalists possess a qualified privilege shielding certain information obtained in the newsgathering process from discovery by litigants. As the Second Circuit has explained, “[i]f the parties to any lawsuit were free to subpoena the press at will, it would likely become standard operating procedure for those litigating against an entity that had been the subject of press attention to sift through press files in search of information supporting their claims.” Gonzales v. National Broadcasting Company, 194 F.3d 29, 35 (2d Cir.1999). In addition, “permitting litigants unrestricted, court-enforced access to journalistic resources would risk the symbolic harm of making journalists appear to be an investigative arm of the judicial system, the government, or private parties.” Id. These concerns, moreover, “are relevant regardless whether the information sought from the press is confidential.” Id.

Nevertheless, the City contends, as a threshold matter, that the reporter’s privilege does not apply to a reporter’s direct testimony about his or her firsthand observations. The City notes that the court in Gonzales spoke of a privilege for “press materials,” 194 F.3d at 36, and contends that that language should be understood to limit the privilege to items such as interview notes, outtakes from filmed interviews, unpublished photographs, the identities of sources, and the like. The City also cites two district court cases stating that “[a] reporter’s observations of a public place or event are no different than that of other individuals; and as to this, they are not entitled to constitutional protection.” United States v. Markiewicz, 732 F.Supp. 316, 319 (N.D.N.Y.1990) (quoting Alexander v. Chicago Park Dist., 548 F.Supp. 277, 278 (N.D.Ill.1982)).1

In contrast to these cases, however, most courts have found this argument unpersuasive. Indeed, numerous courts, including this Court and the Second Circuit, have applied the reporter’s privilege to direct testimony without the slightest expression of doubt. See, e.g., United States v. Treacy, 603 F.Supp.2d 670, 672 (S.D.N.Y.2009) (applying the privilege to direct testimony but finding it overcome under the circumstances), aff'd in relevant part, 639 F.3d 32, 36 (2d Cir.2011); Carter v. City of New York, No. 02 Civ. 8755(RJH), 2004 WL 193142, at *1 (S.D.N.Y. Feb. 2, 2004) (“This court reads Gonzales as establishing a qualified privilege as to all information gathered by a reporter whether through electronic recordation, such as a videotape, or through direct perception.”). More fundamentally, the City’s proffered distinction makes no sense. Under the City’s view, Moynihan’s observations would be protected to the extent they were videotaped, photographed, or memorialized in writing, but not if simply remembered in his brain. The Court sees no reason that the policy [395]*395concerns animating the reporter’s privilege would apply any less strongly to compelled testimony than to other types of evidence. Indeed, the City’s view would permit any litigant to circumvent the reporter’s privilege simply by seeking his or her mental recollections of events, rather than “materials” memorializing those same events. If anything, this would intensify the intrusion on the reporter’s role that the reporter’s privilege seeks to protect.

Nor does it make any difference that Moynihan was reporting on his own personal observations rather than observations of others. In Gonzales, the Second Circuit explained that an entity “may avail itself of the journalists’ privilege” “so long as [the] entity gathers information with intent to disseminate to the public.’ ” Gonzales, 194 F.3d at 34 (internal quotation marks omitted). That statement derives from the Second Circuit’s earlier decision in von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 143 (2d Cir.1987), in which the court explained that “the critical question in determining if a person falls within the class of persons protected by the journalist’s privilege is whether the person, at the inception of the investigatory process, had the intent to disseminate to the public the information obtained through the investigation.” Id.

These decisions give no indication of any exception for information obtained from firsthand observation.

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Related

United States v. Treacy
639 F.3d 32 (Second Circuit, 2011)
Alexander v. Chicago Park District
548 F. Supp. 277 (N.D. Illinois, 1982)
United States v. Markiewicz
732 F. Supp. 316 (N.D. New York, 1990)
United States v. Treacy
603 F. Supp. 2d 670 (S.D. New York, 2009)
von Bulow v. von Bulow
811 F.2d 136 (Second Circuit, 1987)

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Bluebook (online)
948 F. Supp. 2d 392, 2013 WL 2480662, 2013 U.S. Dist. LEXIS 82428, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lebowitz-v-city-of-new-york-nysd-2013.