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                  THE SUPREME COURT OF NEW HAMPSHIRE

                              ___________________________


Merrimack
No. 2016-0507


                        THE STATE OF NEW HAMPSHIRE

                                          v.

                                    CARL GIBSON

                            Argued: May 18, 2017
                      Opinion Issued: September 21, 2017

      Joseph A. Foster, attorney general (Stephen G. LaBonte, assistant
attorney general, on the brief and orally), for the State.


      Brennan, Lenehan, Iacopino & Hickey, of Manchester (Michael J.
Iacopino and Jenna M. Bergeron on the brief), for the defendant.


      Orr & Reno, P.A., of Concord (William L. Chapman on the brief and
orally), for Nicholas Reid.

      DALIANIS, C.J. The State appeals the order of the Superior Court
(McNamara, J.) granting news reporter Nicholas Reid’s (Reid) motion to quash
the State’s subpoena compelling him to testify against the defendant, Carl
Gibson. We reverse and remand.
                                        I

      The relevant facts follow. Republican candidate Yvonne Dean-Bailey
(Dean-Bailey) was running in a May 19, 2015 special election for State
Representative from Rockingham County District 32. On May 14, 2015, the
defendant, a volunteer for the opposing Democratic Party candidate, allegedly
issued a false press release stating that Dean-Bailey was dropping out of the
race.

       The press release was attached to an e-mail with a subject line stating,
“BREAKING: Yvonne Dean-Bailey concedes Rockingham 32 special election
#nhpolitics.” (Bolding omitted.) The press release stated that Dean-Bailey, “a
freshman . . . at Mount Holyoke College,” had “bowed out of the May 19 special
election” in order to “focus[ ] exclusively on her studies before considering
another run for office.”

       Reid, who was covering the special election as a reporter for the Concord
Monitor, received the e-mail with the attached press release and became
suspicious because of the form and content of the e-mail and attached file. He
contacted a representative of the New Hampshire Republican Party who was
unaware of Dean-Bailey withdrawing from the race. Reid then wrote a short
article for the May 15, 2015 issue of the newspaper titled “Email claiming
Dean-Bailey is conceding called a hoax.”

       Reid investigated the file that was attached to the May 14 e-mail by
selecting “Properties” under the “File” tab, which indicated that the creator of
the file was “Carl Gibson” and that the file was created on May 14, 2015, at
19:30:00. Reid then conducted an internet search to determine how to contact
Gibson.

       On May 15, Reid contacted by telephone a man who identified himself as
Gibson. Based upon that conversation and his conversations with other
sources, Reid wrote a second article published in the Concord Monitor on May
16 under the headline, “Man who sent hoax email from GOP candidate had ‘too
many beers’ before ‘prank.’” (Bolding omitted.) The article, describing Gibson
as “[a] liberal activist” who had been “booted” from the opposing candidate’s
special election campaign, reported that Gibson stated to Reid that he had
“creat[ed] a fake email account and sen[t] a phony press release,” thinking it
was “a prank” he could play “in the heat of the moment.” (Quotation omitted.)

      In October 2015, the defendant was charged with “False Documents,
Names or Endorsements,” see RSA 666:6 (2016), attempted voter suppression,
see RSA 629:1 (2016) and RSA 659:40, III(b) (2016), and voter suppression, see
RSA 659:40, III(c) (2016). In March 2016, Reid was served with a subpoena
requiring him “to testify what [he] know[s] relating to a criminal matter to be
heard and tried between the State . . . and Carl Gibson.” The information


                                       2
sought by the State is “inculpatory statements that amount to a confession
made by the defendant while being interviewed by Mr. Reid.”

      Reid moved to quash the subpoena on the ground that it violates his
“newsgathering privilege” under Part I, Article 22 of the New Hampshire
Constitution and the First Amendment to the United States Constitution. The
State objected, asserting that the privilege does not apply because the
testimony it seeks from Reid concerns only non-confidential information.
Following a hearing, the trial court granted Reid’s motion to quash. The court
found that “the newsgathering privilege guaranteed by Part I, Article 22 of the
New Hampshire State Constitution must extend to protect unpublished work
product of journalists in order to ensure unimpeded and uncensored flow of
reporting that is essential to a free state.” In addition, the trial court found
that the defendant’s cross-examination of Reid would “necessarily” result in
Reid having to divulge unpublished information. The State moved for
reconsideration, which the court denied, and this appeal followed.

                                        II

       On appeal, the State argues that the trial court erred “by expanding the
scope of the news-gathering privilege to include non-confidential sources.”
Further, the State contends that the trial court’s concern about Reid’s possible
cross-examination testimony was “premature and unwarranted.” Reid
counters that Part I, Article 22 of the New Hampshire Constitution “provide[s] a
qualified privilege to the press to protect newsgathering activities where the
published information at issue was obtained from identified and unidentified
sources,” and that the trial court correctly ruled that the standard set forth in
State v. Siel, 122 N.H. 254 (1982), applies to this case and the State failed to
satisfy its requirements for overcoming the newsgathering privilege. The
defendant similarly asserts that the trial court correctly found that “the scope
of the newsgathering privilege includes non-confidential sources,” and that the
State “did not exhaust all reasonable alternatives to obtain the Defendant’s
confession.”

      We review issues of constitutional law de novo. State v. Leavitt, 165 N.H.
32, 33 (2013).

                                       III

      The narrow question before us is whether, on the facts of this case, the
newsgathering privilege under the State Constitution extends to protect a news
reporter from testifying in a criminal proceeding about non-confidential
information that he gathered in the course of investigating a news story and
subsequently published in a newspaper. We hold that it does not.




                                        3
       Part I, Article 22 of the New Hampshire Constitution provides that “[f]ree
speech and liberty of the press are essential to the security of freedom in a
state” and “ought, therefore, to be inviolably preserved.” N.H. CONST. pt. I, art.
22. In Opinion of the Justices, 117 N.H. 386 (1977), we recognized, under this
constitutional provision, a qualified privilege for a news reporter to refuse to
disclose the confidential sources of information he utilized in preparing a series
of articles that related directly to the performance of an official who faced
statutory removal from office. See Opinion of the Justices, 117 N.H. at 386-87,
389. We reasoned that because “[o]ur constitution quite consciously ties a free
press to a free state, . . . effective self-government cannot succeed unless the
people have access to an unimpeded and uncensored flow of reporting,” and
“[n]ews gathering is an integral part of the process.” Id.

       Several years later, we addressed whether news reporters have a
qualified privilege to withhold the identity of confidential news sources in a
criminal case. Siel, 122 N.H. at 256. In Siel, defense counsel subpoenaed two
newspaper reporters to appear at a discovery deposition to give evidence
relating to articles they had written about the activities and whereabouts of the
victim during the week before he was allegedly murdered by the defendant. Id.
at 257. The reporters moved to quash the subpoenas on the ground that they
had no personal knowledge about the victim and that the information in the
articles had been provided by confidential informants. Id.

       Noting that we had previously recognized that Part I, Article 22
encompasses a qualified privilege for reporters in civil cases, we determined
that such privilege must not cease to exist in a criminal case. Id. at 259.
However, we cautioned that “because the individual citizen’s civil rights must
also be protected, a news reporter’s privilege is more tenuous in a criminal
proceeding than in a civil case.” Id. (quotation omitted). We adopted a three-
pronged test that a defendant must satisfy in order to overcome a press
privilege to withhold a confidential news source in a criminal case. Id. Under
that test, a defendant must show: (1) that he has attempted unsuccessfully to
obtain the information by all reasonable alternatives; (2) that the information
would not be irrelevant to his defense; and (3) that, by a balance of the
probabilities, there is a reasonable possibility that the information sought as
evidence would affect the verdict in his case. Id.

       In the case before us, the trial court acknowledged that although Siel
involved a case in which the criminal defendant sought to pierce the privilege,
“at a minimum the same balancing of interests applies where the State seeks to
pierce the privilege, given the societal interest in all citizens giving relevant
testimony about criminal conduct.” The court characterized the information
sought by the State from Reid as testimony “about his unpublished work
product, and potentially identify[ing] his confidential sources.” Thus, the court
reasoned, “[r]equiring [Reid] to testify . . . would have a chilling effect on the
free flow of information because journalists would appear to be an investigative


                                        4
arm of the State, thereby reducing sources’ willingness to talk and diminishing
journalists’ incentive to investigate and report.”

       As the State asserts, however, Reid himself admitted to an investigator
from the attorney general’s office that “everything he discussed with Mr. Gibson
is in the news story he wrote,” and the State avers that it “is not seeking any
information beyond what Reid published from identified sources.” (Brackets
omitted.) Indeed, Reid stated in an e-mail that he sent to the investigator that
the investigator “can find everything [Reid] discussed with Mr. Gibson in [the
May 15] news story [he] wrote” and that “[w]hat’s expressed there is the entirety
of [his] conversation with Mr. Gibson.” Accordingly, the testimony sought by
the State from Reid is limited to non-confidential, published information.

        Reid cites several concerns that he raised before the trial court about
being required to testify, including that “it would be difficult for [him] to do his
job if [he] faced the prospect of having to testify in criminal cases which [he]
reported on,” that he “could be perceived by the public as being an agent of the
prosecution,” and that “[t]hat perception would make it that much more
difficult for [him] to do the type of newsgathering that is necessary to report on
criminal cases.” We are not persuaded, however, that the limited information
sought by the State under the specific facts of this case presents any potential
impairment of the newsgathering process. See United States v. Smith, 135
F.3d 963, 970 (5th Cir. 1998) (explaining that “there is little reason to fear that
on-the-record sources will avoid the press simply because the media might
turn over nonconfidential statements to the government” because
“[p]resumably, on-the-record sources expect beforehand that the government,
along with the rest of the public, will view their nonconfidential statements
when they are aired by the media”); United States v. LaRouche Campaign, 841
F.2d 1176, 1181 (1st Cir. 1988) (recognizing that whereas the disclosure of
confidential sources or information “would clearly jeopardize the ability of
journalists and the media to gather information and, therefore, have a chilling
effect on speech,” the court had “been referred to no authoritative sources
demonstrating or explaining how any chilling effect could result from the
disclosure of statements made for publication without any expectation of
confidentiality”).

      We recognize that the trial court acknowledged that the “fulcrum of the
State’s argument is that it does not intend to obtain any confidential
information from Reid because it intends to limit its questioning of Reid to the
statements made by the man who identified himself as Gibson.” Nonetheless,
the court determined that because the defendant would be entitled to cross-
examine Reid, “a full and fair cross-examination would necessarily require the
Court to allow the Defendant to inquire about unpublished information, such
as Reid’s mental impressions and investigative process.” As the State argues,
however, not only is this concern premature, even if the defendant’s cross-
examination could lead to Reid asserting the newsgathering privilege, the


                                         5
burden of overcoming the privilege would lie with the defendant, not the State.
Cf. State v. Eason, 133 N.H. 335, 345 (1990) (explaining that, in the context of
the attorney-client privilege, although a trial court may not summarily reject a
criminal defendant’s claim of his right to cross-examine a witness who has
correctly invoked an evidentiary privilege, it is up to a defendant who wishes to
overcome the privilege to show that the admission of privileged information is
at least reasonably necessary to his defense).

        We hold that the trial court erred as a matter of law in determining that
Reid has a qualified privilege under Part I, Article 22 of the State Constitution
to refuse to testify in a criminal trial about non-confidential, published
information obtained from identified sources. Cf. Branzburg v. Hayes, 408 U.S.
665, 690 (1972) (in concluding that the First Amendment does not afford
protection to reporters to refuse to testify before a grand jury, the Court stated
that it “perceived no basis for holding that the public interest in law
enforcement . . . is insufficient to override the consequential, but uncertain,
burden on news gathering that is said to result from insisting that reporters,
like other citizens, respond to relevant questions put to them in the course of a
. . . criminal trial”); id. at 710 (Powell, J., concurring) (emphasizing that “[t]he
asserted claim to privilege should be judged on its facts by the striking of a
proper balance between freedom of the press and the obligation of all citizens
to give relevant testimony with respect to criminal conduct”). Our decision in
this “sensitive area[ ]” is “narrowly based upon the factual posture” presented
in this case. Siel, 122 N.H. at 259.

       Although Reid based his motion to quash upon the ground that it
violates his newsgathering privilege under both Part I, Article 22 of the State
Constitution and the First Amendment to the United States Constitution, the
trial court based its decision solely upon the State Constitution. Because we
hold that the trial court’s determination was erroneous, we remand for the trial
court to consider, in the first instance, Reid’s federal constitutional claim.

                                                   Reversed and remanded.

       HICKS and LYNN, JJ., and MANGONES, J., retired superior court
justice, specially assigned under RSA 490:3, concurred.




                                         6
