Weinberger v. Maplewood Review

668 N.W.2d 667, 31 Media L. Rep. (BNA) 2281, 2003 Minn. LEXIS 559, 2003 WL 22098552

• Court: Supreme Court of Minnesota
• Decided: September 11, 2003
• Docket: C7-01-2021
• Status: Published

Opinions

OPINION

PAGE, Justice.

This appeal arises from appellant Richard Weinberger’s motion to compel the Maplewood Review and two of its reporters, Jason Tarasek and Wally Wakefield,¹ to disclose the identity of certain sources quoted in an article published by the Ma-plewood Review in January of 1997. Weinberger sought the identity of the sources in connection with a lawsuit he brought against Independent School District No. 622, Barbara Hallbrehder, Tim Hickey, Cletus Lipetzky, and Mark Klings-porn (collectively, “the Tartan Defendants”) for defamation. In July 2000, Weinberger served Wakefield with a subpoena requesting a deposition and the identities of the sources quoted in the January 1997 article, but Wakefield refused to comply. Weinberger then filed a motion to compel disclosure, which the trial court granted. Wakefield appealed and the court of appeals reversed and remanded for additional findings.

On remand, the district court granted Weinberger’s motion to compel. Wake-field appealed and again the court of appeals reversed, this time concluding that a nonparty newspaper reporter could not be required to disclose the source of allegedly defamatory information published about a public official when “the primary purpose of disclosure is not relevant to obtaining evidence of actual malice but rather to make the reporter a witness against defendants, and there is no prima facie showing that the statements are false or were made with actual malice.” Weinberger v. Maplewood Review, 648 N.W.2d 249, 260 (Minn.App.2002). We granted Weinberger’s petition for further review and now reverse.

Weinberger sued the Tartan Defendants for defamation, alleging that they collaborated to remove him from his position as head football coach at Tartan High School by destroying his reputation through spreading false rumors and publishing false information in the Maplewood Review. The January 1997 article at the heart of this appeal discussed Wein-berger’s unexpected termination as head football coach and contained a number of quotes from alleged “sources” in the school district discussing why Weinberger was terminated. Although there were several quotes directly attributed to Lipetzky, Tartan’s principal, the majority of the information in the article was attributed to unnamed sources. Of these statements, Weinberger identified at least 11 statements from the January 27, 1997, article that he contends are untrue and defamatory.² Although he maintains that Lipetzky, Klingsporn, and Hickey made these allegedly defamatory statements, he does not know which of these individuals, if any, actually made any of the statements in question.

In July 2000, Weinberger served Wake-field with a subpoena requiring that he submit to a deposition and provide all documents concerning or related to Wein-berger. When Wakefield refused to comply, Weinberger filed a motion to compel. The district court denied Weinberger’s motion because Weinberger had not exhausted all alternative sources for the information sought. After completing depositions of Lipetzky, Klingsporn, Hickey, and Hallbrehder, each of whom failed to identify who made the alleged defamatory statements noted above, Weinberger renewed his motion to compel.³ The district court granted this motion, requiring that Wakefield provide by interrogatory answer the name of the original source of each statement identified by Weinberger as defamatory.

On appeal, the court of appeals reversed and remanded for further fact-finding consistent with Bauer v. Gannett Co. (KARE 11), 557 N.W.2d 608 (Minn.App.1997).⁴ On remand, the district court applied Bauer and concluded that on the facts of this case disclosure was appropriate and granted Weinberger’s motion. In its order, the district court limited the required disclosure to the identification by written interrogatory as to “which defendant, if any, is the original source for each of the following statements.”

Again, on appeal, the court of appeals reversed, concluding that Weinberger had: (a) failed to establish a prima facie case that the statements at issue are false or made with actual malice; (b) failed to demonstrate that the disclosure ordered will clearly lead to relevant evidence of actual malice; and (c) failed to demonstrate how his interest in disclosure is more significant than the chilling effect that will result from making a reporter a witness against sources to whom he promised confidentiality.

Resolution of this case requires us to interpret the defamation exception found in the Minnesota Free Flow of Information Act,⁵ Minn.Stat. §§ 525.021 through 525.025.⁶ We review the construction of statutes de novo. See Ryan Contracting, Inc. v. JAG Invs., Inc., 634 N.W.2d 176, 181 (Minn.2001) (“Statutory construction is * * * a question of law which we review de novo.”). When interpreting a statutory provision, we first look at whether the words of the statute are clear or ambiguous. Am. Family Ins. Group v. Schroedl, 616 N.W.2d 278, 277 (Minn.2000). If the words of the statute are clear and free from all ambiguity, we will not ignore the clear meaning “under the pretext of pursuing the spirit.” Minn. Stat. § 645.16 (2002). In doing so, we construe the words and phrases of the statute according to their plain and ordinary meaning and only find the language ambiguous when it is subject to more than one reasonable interpretation. Id.

The act was designed to “protect the public interest and the free flow of information” by giving the news media “a substantial privilege not to reveal sources of information or to disclose unpublished information.” Minn.Stat. § 595.022. This privilege protects any person “who is or has been directly engaged in the gathering, procuring, compiling, editing, or publishing of information for the purpose of transmission, dissemination or publication to the public.” Minn.Stat. § 595.023. While recognizing and designing a substantial privilege for the news media, the legislature created two exceptions to that privilege that require disclosure of unnamed sources under certain limited circumstances. The first exception, one not relevant here, is applicable in criminal cases; the second is applicable in “any defamation actions.”⁷ MinmStat. §§ 595.024 (criminal), 595.025 (defamation). The exception found in section 595.025 requires disclosure when “the person seeking disclosure can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice.” MinmStat. § 595.025, subd. 1. The person seeking disclosure must also show that “there is probable cause to believe that the source has information clearly relevant to the issue of defamation” and that “the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights” before disclosure will be required. Minn. Stat. § 595.025, subd. 2(a) and (b).

In Minnesota, a plaintiff pursuing a defamation claim must prove that the defendant made: (a) a false and defamatory statement about the plaintiff; (b) in unprivileged publication to a third party; (c) that harmed the plaintiffs reputation in the community. Britton v. Koep, 470 N.W.2d 518, 520 (Minn.1991). When the plaintiff is a public official and the statement relates to the individual’s official conduct, the plaintiff must prove not only that the statement was false, but also that the statement was made with actual malice. Id. A statement is made with actual malice when it is made with the “knowledge that it was false or with reckless disregard of whether it was false or not.” New York Times v. Sullivan, 376 U.S. 254, 279-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); see also Britton, 470 N.W.2d at 520. The district court determined that for the purposes of this action Weinberger is a public official and therefore must prove defamation with actual malice to successfully pursue his claim against the Tartan Defendants.

We begin our analysis by addressing whether Weinberger “can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice.” Minn.Stat. § 595.025, subd. 1. Under the Minnesota Rules of Evidence, relevant evidence is “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Minn. R. Evid. 401 (emphasis added); see, e.g., Boland v. Morrill, 270 Minn. 86, 98-99, 132 N.W.2d 711, 719 (1965) (stating that “any evidence is relevant which logically tends to prove or disprove a material fact in issue”). To prove actual malice, the plaintiff has to show that the declarants spoke with the knowledge that their statements were false or with reckless disregard as to whether the statements were false or not. See Sullivan, 376 U.S. at 279-80, 84 S.Ct. 710; Britton, 470 N.W.2d at 520. Therefore, under the language of section 595.025, the defamation exception applies when a plaintiff can demonstrate that the identity of the source will lead to evidence having any tendency to prove or disprove that the defendants spoke with the knowledge that the statements were false or with reckless disregard as to whether the statements were false or not. This does not mean, as the court of appeals required, that the plaintiff has to prove that the declarant indeed spoke with actual malice before the exception can be applied. Rather, under the plain language of the statute, we conclude that the statute requires only that the plaintiff establish that the identity of the source will lead to relevant evidence on the issue of actual malice.

In cases such as the one before us today, in which the plaintiff has alleged that the defendant is the source of the allegedly defamatory statements, relevant evidence constitutes not only evidence on the source’s knowledge, but also the source’s identity. As noted above, in order to prove that a defendant acted with actual malice, the plaintiff must establish that the defendant made statements that he or she knew were false or acted with reckless disregard as to whether the statements were true or false. When the identity of the speaker is known and clearly identified, all that the plaintiff needs to establish to prove actual malice is what the defendant knew at the time the statements were made. However, when the identity of the speaker is hidden under the cloak of anonymity because the speaker has published his or her allegedly defamatory statements through a newspaper that has not attributed the statements directly to the speaker, it is self-evident that the identity of the speaker will lead to relevant evidence on the issue of actual malice.

Here, Weinberger has alleged that Lipetzky, Klingsporn, and Hickey are the unnamed sources quoted in the January 27 article. The district court has determined that the statements, if false, are defamatory and that, based on the depositions and affidavits submitted by the plaintiff, material issues of fact exist' as to whether these statements were made with actual malice. By requiring that Wakefield only disclose the identity of the unnamed sources who are Tartan Defendants, the trial court has ensured that disclosing the unnamed sources’ identity will lead to evidence having a tendency to prove or disprove that the declarant spoke with knowledge that the statements were false or with reckless disregard to their truth or falsity. If none of the Tartan Defendants are the source for the allegedly defamatory statements, then Weinberger’s claim with respect to these statements ends. Because actual malice is a fact of consequence and because knowing whether any of the named Tartan Defendant’s made any of the allegedly defamatory statements will allow Weinberger, through discovery, to obtain evidence that will have a tendency to either prove or disprove actual malice, we conclude that Weinberger has satisfied the requirement for disclosure under section 595.025, subdivision 1.

Next, we must determine whether “there is probable cause to believe that [Wakefield’s unnamed] source[s] have information clearly relevant to the issue of defamation.” Minn.Stat. § 595.025, subd. 2(a). As explained by the Connecticut Supreme Court, in civil cases probable cause constitutes “ ‘a bona fide belief in the existence of the facts essential under the law for the action and such as would warrant a [person] of ordinary caution, prudence and judgment, under the circumstances, in entertaining it.’ ” New England Land Co. v. DeMarkey, 213 Conn. 612, 569 A.2d 1098, 1103 (1990) (quoting Wall v. Toomey, 52 Conn. 35, 36 (1884)); see also Black’s Law Dictionary 1219 (7th ed.1999) (defining “probable cause” as “[a] reasonable ground to suspect that a person has committed or is committing a crime”). Here, the probable cause requirement of section 595.025, subdivision 2(a), is satisfied because the narrowness of the district court’s disclosure order insures that the unnamed sources will have information relevant to the defamation claim. As noted above, the order only requires disclosure of the identity of sources who are named Tartan Defendants and then only with respect to any of the 13 allegedly defamatory statements they made. Because the source of a statement will have information clearly relevant to whether the statement is defamatory, if any of the Tartan Defendants are the source of any of the allegedly defamatory statements, there is probable cause to believe that they have information clearly relevant to defamation. Therefore, we conclude that Weinberger has met the requirements for disclosure under section 595.025, subdivision 2(a).

Finally, we must determine whether “the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights.” Minn.Stat. § 595.025, subd. 2(b). The district court determined:

The parties, including the newspaper, do not dispute that plaintiff has been unable to secure the information sought by alternative means. Plaintiff has deposed each of the defendants, all of whom are or were representatives of the school district. Not one of the defendants has owned up to any of the statements in question or provided information as to the source. Nor has plaintiff been able to secure this information through investigation or other discovery. It is obvious that the only persons who know the source of each of the statements are the declarants and the reporters. It follows that if plaintiff can[]not determine the source of the statements from the declarants, the only other available means to secure that information is from the reporters.

The court of appeals agreed with the district court that this factor weighed in Weinberger’s favor. Weinberger, 648 N.W.2d at 260. Moreover, before this court, the parties do not dispute that the requirements of section 595.025, subdivision 2(b), have been satisfied. Therefore, we conclude that Weinberger has met the requirements for disclosure under section 595.025, subdivision 2(b).⁸

Because we conclude that Weinberger has satisfied each of the statutory requirements for disclosure under Minn.Stat. § 595.025, we conclude that the district court properly found that the statutory requirements for compelled disclosure were satisfied and hold that Wakefield must comply with the district court’s order.⁹

Reversed and remanded.

Dissenting, MEYER and ANDERSON, PAUL, H., JJ.

1 . Although the Maplewood Review was named as a respondent during the beginning stages of this case, it did not join Wakefield’s petition for review of the court of appeals' decision. Similarly, Jason Tarasek has been dismissed as a respondent because he was never properly served. For this reason, only Wake-field is referred to as "respondent."

2 .Weinberger identified the following statements taken from the January 27 article as untrue and defamatory:

1. Tartan High School officials have indicated that they do not intend to renew Wein-berger's coaching contract this April.

2. But now school officials say they've had enough of Weinberger and his behavior. According to sources, the coach is known for his temper, inappropriate comments and foul language, which people claim he uses to intimidate players.

3. One source, however, pointed to an incident at Park High School in Cottage Grove as "the straw that broke the camel’s back.”

4. Weinberger reportedly gave a severe tongue-lashing to several of his players at halftime during Tartan's loss, which knocked the team out of the playoffs.

5. "His language has been awful,” one person said on the condition of anonymity.

6. "People have talked to him numerous times. Both his superiors and peers.”

7. Weinberger’s cursing and his habit of berating players is allegedly not anything new. For a while, after he was reprimanded, he improved his behavior, according to observers. However, several people said Wein-berger eventually sunk back into his old habits. The problem continued to linger because players, parents and even coaches were afraid to speak up — fearing that Wein-berger would retaliate.

8. "First * * * when there is an intimidating situation, kids have a tendency to not say nothing,” a source said, "Second, some parents are apprehensive about saying things because it will be held against their son or daughter.”

9. In the past few weeks several assistant coaches reportedly gave notice to Tartan officials that they would not return to coach under Weinberger.

10. After Tartan officials repeatedly warned Weinberger to change his behavior, their patience apparently has run out.

11. "We all have to make changes and get better as a person,” a source said. "He (Weinberger) can’t admit that there is anything wrong.”

12. A few weeks ago, after officials told Weinberger they did not intend to renew his coaching contract, he was placed on a five-day suspension from his position as an earth sciences teacher at Tartan. The suspension apparently was intended to allow Weinberger time to cool off after receiving the news.

13. "They didn’t think he'd handle being there (at school) very well,” a source said. "It wasn’t any other thing he did wrong.”

The trial court concluded that, with the exception of the first and twelfth statements, the quoted statements were clearly defamatory if untrue and that, as such, if the declarant knew that they were false at the time they were made, a jury would be justified in finding that they were made with actual malice.

3 .It is important to note that just before Wein-berger renewed his motion to compel the Tartan Defendants moved for summary judgment on Weinberger's defamation claim. The district court denied the Tartan Defendant's motion and specifically found that Wein-berger had provided sufficient evidence through affidavits and deposition testimony to create a material fact issue as to whether the allegedly defamatory statements constituted defamation of a public official, i.e., were defamatory statements made with actual malice.

In Minnesota, "public official” has been defined as any plaintiff who performs "governmental duties, directly related to the public interest,” who holds "a position to influence significantly the resolution of a public issue;” or a "government employee [who has or appears] to the public to have, substantial responsibility for or control over the conduct of government affairs.” Britton v. Koep, 470 N.W.2d 518, 522 (Minn.1991). The district court determined that Weinberger was a public official for the purposes of this case and the parties have not subsequently contested this determination.

4 .Bauer involved a defamation action brought by a public official against a reporter and a media organization. 557 N.W.2d at 609. The appeal arose from a discovery order requiring the reporter to disclose the identities of the confidential sources interviewed by the reporter. Id. In interpreting the media's “qualified constitutional privilege codified at Minn.Stat. § 595.021-.025,” the court of appeals combined the statutory requirements expressed in Minn.Stat. § 595.025 with the requirements used by other courts in jurisdictions without a similar statute codifying the protections authorized for reporters in civil actions. Id. at 609-13. Under Bauer, whether disclosure was required depends on the scope of the reporter’s privilege as defined by the following factors: (a) "the nature of the litigation and whether the reporter or news organization from whom disclosure is sought is a party to the litigation;" (b) "the party seeking disclosure of a confidential source must demonstrate that the source's identity is clearly relevant to the action;” (c) "that 'the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights;’ ” (d) "whether there is a compelling interest in the information or source;” and (e) whether the plaintiff has made a "prima facie showing that the allegedly defamatory statements are false.” Id. at 611-12 (citations and emphasis omitted). Bauer was never appealed to this court.

5 . The dissent focuses on the issue of the reporter's privilege against compelled disclosure under the First Amendment. It does so while acknowledging that the United States Supreme Court has not definitively found such a privilege to exist. We do not address that issue because neither party has properly put that issue before the court, and it was not considered by the district court. See Funchess v. Cecil Newman Corp., 632 N.W.2d 666, 673 (Minn.2001).

6 . The Act reads in relevant part as follows:

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 sections 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.

Minn.Stat. § 595.022 (2002).

Except as provided in section 595.024, no person who is or has been directly engaged in the gathering, procuring, compiling, editing, or publishing of information for the purpose of transmission, dissemination or publication to the public shall be required by any court, grand jury, agency, department or branch of the state, or any of its political subdivisions or other public body, or by either house of the legislature or any committee, officer, member, or employee thereof, to disclose in any proceeding the person or means from or through which information was obtained, or to disclose any unpublished information procured by the person in the course of work or any of the person’s notes, memoranda, recording tapes, film or other reportorial data whether or not it would tend to identify the person or means through which the information was obtained.

Minn.Stat. § 595.023 (2002).

Subdivision 1. Disclosure prohibition; applicability. The prohibition of disclosure provided in section 595.023 shall not apply in any defamation action where the person seeking disclosure can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice.

Subd. 2. Disclosure conditions. Notwithstanding the provisions of subdivision 1, the identity of the source of information shall not be ordered disclosed unless the following conditions are met:

(a) that there is probable cause to believe that the source has information clearly relevant to the issue of defamation;

(b) that the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights.

Subd. 3. Determination; appeal. The court shall make its order on the issue of disclosure after making findings of fact, which order may be appealed to the court of appeals according to the rules of appellate procedure. During the appeal the order is stayed and nondisclosure shall remain in full force and effect.

Minn.Stat. § 595.025 (2002).

7 . The dissent suggests that section 595.025 should apply only when a reporter is a party to the defamation action. However, the statutory language clearly and unambiguously states that section 595.025 applies in “any defamation action,” not merely actions in which a reporter is a defendant. Minn.Stat. § 595.025, subd. 1 (emphasis added).

8 . The dissent suggests that Weinberger can prove defamation by evidence of similar statements made by the Tartan Defendants to third parties and thus does not need to rely on statements from the Maplewood Review article. But these similar statements do not provide Weinberger with a "remedy less destructive of First Amendment rights” because the statements to third parties and the statements in the Maplewood Review article constitute separate publications, each of which results in a separate injury, gives rise to separate damages, and supports a separate cause of action for defamation. See, e.g., Restatement (Second) of Torts § 577A cmt. a (1977) (stating that "each communication of the same defamatory matter by the same defamer, whether to a new person or to the same person, is a separate and distinct publication, for which a separate cause of action arises”). Obviously, damage to one's reputation from statements made in a newspaper article can be significantly greater than the damage resulting from a statement made to a single person or a small group of people. Thus, allowing Wein-berger to proceed with his defamation claims based upon statements made to third parties does not provide a remedy for his separate cause of action based upon the statements in the Maplewood Review article.

9 . To the extent the analysis in Bauer is inconsistent with this opinion, it is overruled.