Tripp v. Department of Defense
2003 U.S. Dist. LEXIS 17074, 31 Media L. Rep. (BNA) 2505, 284 F.Supp.2d 50 (2003)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A party seeking to overcome the qualified First Amendment reporter's privilege must demonstrate that they have exhausted every reasonable alternative source for the information sought. This privilege extends to journalists working for government-affiliated publications that operate with editorial independence.
Facts:
- In or about October 2000, Linda Tripp applied for a position as Deputy Director at the George C. Marshall European Center for Security Studies, a Department of Defense (DOD) institute in Germany.
- After being certified as a top applicant, Tripp spoke by telephone with Robert Kennedy, the Marshall Center Director, and did not authorize the disclosure of her application information to any third parties.
- On January 23, 2001, the day of her scheduled interview at the Marshall Center, Tripp was presented with a copy of that day's Stars and Stripes newspaper.
- The newspaper featured an article by reporter Sandra Jontz titled 'Linda Tripp up for Job at Marshall Center,' which disclosed information about Tripp's application and cited unnamed 'center officials,' a 'Pentagon spokeswoman,' and 'sources close to the Center.'
- Prior to this incident, in January 2000, Tripp had sent a 'reverse FOIA request' to the DOD, asking that no information related to her be released to the media without her prior review.
- Tripp was ultimately not selected for the position at the Marshall Center.
Procedural Posture:
- Linda Tripp filed a lawsuit against the U.S. Department of Defense in the U.S. District Court for the District of Columbia, alleging violations of the Privacy Act and the Administrative Procedures Act.
- During discovery, Tripp served a notice to depose Sandra Jontz, a DOD employee and a reporter for the DOD's Stars and Stripes newspaper.
- The DOD objected, asserting the 'reporter's privilege' on Jontz's behalf to protect her newsgathering sources.
- Jontz, a non-party in the lawsuit, filed a motion for a protective order with the court to prevent Tripp from compelling her testimony about her sources.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Is a reporter for a Department of Defense-owned newspaper entitled to invoke the First Amendment reporter's privilege to avoid disclosing her sources in a civil lawsuit when the plaintiff has not yet exhausted all reasonable alternative sources for the information?
Opinions:
Majority - Sullivan, District Judge
Yes. A reporter for a Department of Defense-owned newspaper is entitled to invoke the First Amendment reporter's privilege when the plaintiff has not exhausted all reasonable alternative sources. The court first determined that the reporter's privilege applies to Sandra Jontz and the Stars and Stripes newspaper. Despite being owned by the Department of Defense, the court found that both Congress and DOD directives intend for Stars and Stripes to operate with the editorial independence of a commercial newspaper, thus affording it First Amendment protections. Jontz, as a reporter engaged in newsgathering with the intent to disseminate information to the public, is therefore a journalist entitled to invoke the privilege. The court then applied the D.C. Circuit's balancing test, finding that the exhaustion of alternative sources is the most critical factor. Because Tripp had made only minimal efforts to obtain the information elsewhere—having deposed only one individual—she failed to meet the high burden required to overcome the qualified privilege. The court emphasized that compelling a reporter to disclose sources should be the endpoint of discovery, not the beginning, regardless of whether exhausting other avenues is time-consuming or costly.
Analysis:
This decision reinforces the strength of the qualified reporter's privilege in the D.C. Circuit, particularly the stringent requirement that litigants exhaust all alternative sources before compelling a journalist's testimony. Significantly, the court extended this First Amendment protection to a government-owned publication, focusing on its functional and editorial independence rather than its ownership status. The ruling establishes that reporters for such publications are not lesser journalists in the eyes of the law and sends a clear message that litigants cannot use reporters as an investigative shortcut, thereby protecting the newsgathering process from undue intrusion from civil discovery.
