von Bulow v. von Bulow
7 Fed. R. Serv. 3d 389, 13 Media L. Rep. (BNA) 2041, 811 F.2d 136 (1987)
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Rule of Law:
To successfully invoke the First Amendment's qualified journalist's privilege, an individual must demonstrate through competent evidence that their intent at the inception of the information-gathering process was to disseminate the information to the public.
Facts:
- Andrea Reynolds was an intimate friend and companion of Claus von Bulow during his Rhode Island criminal proceedings for the alleged assault of his wife, Martha von Bulow.
- During the criminal proceedings, Reynolds commissioned investigative reports on the lifestyles of Martha von Bulow's children, stating her purpose was to establish their credibility for the criminal case and for her "own peace of mind."
- Reynolds took approximately 51 pages of handwritten notes while watching the von Bulow criminal trial on television in a generator truck after being barred from the courtroom.
- After the criminal trial, Reynolds began writing a book manuscript about the von Bulow affair, which was based on public information, her memories, and the investigative reports she had commissioned.
- Martha von Bulow's children, acting as her next friends, commenced a civil lawsuit against Claus von Bulow alleging he put their mother into a permanent coma.
- Reynolds entered into an agreement with a German publishing agency in August 1985 for the future serialization of her "final work."
Procedural Posture:
- In a civil action brought by Martha von Bulow's children against Claus von Bulow, attorneys for the appellee subpoenaed third-party witness Andrea Reynolds, seeking documents including a manuscript she was writing.
- Reynolds failed to respond, and the U.S. District Court for the Southern District of New York issued an order to show cause why she should not be held in contempt.
- The district court, after a hearing and reviewing documents in camera, issued an order on October 15 rejecting Reynolds's claim of journalist's privilege and compelling production of the documents.
- The district court issued a confidentiality order on October 28 to govern the use of the documents to be produced.
- When Reynolds continued to refuse to produce the manuscript, the district court held her in civil contempt on November 18, imposing a daily fine of $500.
- The district court stayed the payment of the fine pending appeal.
- Reynolds (appellant) appealed the contempt, production, and confidentiality orders to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does the First Amendment's qualified journalist's privilege protect an individual from compelled disclosure of documents and a manuscript when the information was initially gathered for purposes other than public dissemination, such as aiding in a legal defense or for personal reasons?
Opinions:
Majority - Timbers, Circuit Judge
No. The First Amendment's qualified journalist's privilege does not protect an individual from compelled disclosure where the intent to disseminate information to the public did not exist at the inception of the newsgathering process. The purpose of the privilege is to protect the public's interest in the free flow of information, which is only implicated when a person gathers information with the intent to publish it. Here, Reynolds failed to carry her burden of proving she was acting as a journalist when she acquired the information. She admitted the investigative reports were commissioned to aid von Bulow's criminal defense, not for a book. Her trial notes were described by her as "worthless doodles" and were created even after publication talks with the New York Post had failed. Because the underlying materials were not gathered with journalistic intent, they are not privileged, and the subsequent act of incorporating them into a manuscript does not retroactively grant them protection. The court also rejected her claim of attorney-client privilege for lack of factual support showing she acted as an agent of an attorney.
Analysis:
This decision establishes a critical temporal requirement for the journalist's privilege, creating the 'intent at inception' test. It clarifies that the privilege is not defined by a person's title or the ultimate format of their work (like a book), but by their functional purpose at the moment they begin gathering information. This ruling prevents individuals involved in litigation from retroactively cloaking discovery materials with First Amendment protection simply by deciding to write a book about their experience. The case significantly narrows the application of the privilege, requiring a clear, demonstrable, and pre-existing intent to inform the public to gain its protection.
