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Fall 2008 Bulletin
Subpoenas and Journalist's Privilege
New Jersey Shield Law Protects Author of Trump Biography
A New Jersey appellate court ruled on Oct. 24, 2008 that a former New York Times reporter who wrote a book about Donald Trump does not have to reveal the identity of his confidential sources. The decision reversed a lower court’s ruling on a discovery request by Trump in his ongoing defamation suit against Timothy O’Brien.
O’Brien wrote TrumpNation: The Art of Being the Donald, a 2005 biography about Trump in which he stated that “three people with direct knowledge of Donald’s finances, people who had worked closely with him for years, told me that they thought his net worth was somewhere between $150 million and $250 million,” and that “by anyone’s standards this still qualified Donald as comfortably wealthy, but none of these people thought he was remotely close to being a billionaire.”
O’Brien had also written about Trump in The New York Times, including a story on Sept. 4, 2004, which said that “Mr. Trump’s wealth, presuming that it is not encumbered by heavy debt, may amount to about $200 million to $300 million. That is an enviably large sum of money by most people’s standards but far short of the billionaire’s club.”
O’Brien said he could not reveal the identity of his sources, who had “direct knowledge of Donald’s finances,” because the sources feared retribution from Trump.
In response to the book, Trump filed a defamation suit in New Jersey state district court against O’Brien and his publisher, Warner Books, in which he claimed multi-billionaire status. In his suit, Trump claims that O’Brien’s “low estimates of his wealth injured his credit and otherwise harmed his business interests.” Trump is seeking $5 billion in damages.
As part of his suit, Trump made discovery requests seeking, among other things, the identities of the sources of O’Brien’s information regarding Trump’s net worth and his notes of interviews with those sources. O’Brien declined Trump’s request, citing state shield laws, both in New Jersey, N.J.R. Evid. 508, N.J. Stat. Ann. § 2A:84A-21, and New York, N.Y. Civ. Rights Law § 79-h.
Although Trump sued in New Jersey, the district court judge found New York’s shield law to be applicable, and interpreted it narrowly, requiring O’Brien to produce the materials requested because he found them to be “entertainment” and not news. He also ruled that a book author was not covered under the definition of a “professional journalist” found in the New York statute.
In Trump v. O’Brien, No. A-3905-06T2, 2008 N.J. Super. LEXIS 217 (N.J. Super. CT. App. Div. Oct. 24, 2008), a unanimous three-judge panel of the New Jersey Superior Court, Appellate Division reversed. Judge Edith K. Payne, writing for the court, held that New York’s shield law protects books even though books are not specifically mentioned in the law. The court noted that the lower court’s interpretation would protect O’Brien’s writing for The Times, but not for his book. “We decline to torture the language of the Shield Law so as to achieve so indefensible a result,” Payne wrote.
The appellate court also disagreed with the lower court that the materials requested by Trump were not news and thus did not fall under the protections of the New York shield law. The court noted that, although the book was “written in a breezy, irreverent style,” it was still sufficiently newsworthy to qualify for protection under the shield law.
The court relied on previous New York case law and determined that “the scope of the subject matter which may be considered of ‘public interest’ or ‘newsworthy’ has been defined in the most liberal and far-reaching terms … . Without doubt, details of the life of Trump, whether entertainingly reported or not, constitute matters of public interest and thus ‘news’ protected by the Shield Law.”
Payne also rejected the lower’s court’s conclusion that O’Brien could not invoke the “absolute protection for confidential news” found in the New York shield law because his sources were not specifically designated as confidential within the text of his book. Instead, the appellate court viewed “the totality of the evidence offered by O’Brien as sufficient to demonstrate the confidentiality of his sources,” including his statements made in court filings.
Nineteen different media groups filed amicus briefs in support of O’Brien.
“The ruling is not surprising given New Jersey’s long history of providing broad protection to all reporters, even those with dubious factual support for outlandish contentions,” said William Tambussi, Trump’s attorney, in an October 25 story in The Philadelphia Inquirer.
According to an October 24 entry on The Wall Street Journal’s Law Blog, Trump said that he was happy with the judges’ ruling. “They ruled it’s news, which is good for us. As for sources, if he has sources then his case was helped, but we’re saying he doesn’t have any sources,” Trump said. He also said that he would continue to pursue the matter, telling the blog that “I want to have a trial on it.”
– Jacob Parsley
Silha Research Assistant
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