UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

ABDULRAHMAN ALHARBI,
Plaintiff,
v.
GLENN BECK; THE BLAZE, INC.;
MERCURY RADIO ARTS, INC.; AND
PREMIERE RADIO NETWORKS, INC.,
Defendants.

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CIVIL ACTION
NO. 1:14-cv-11550-PBS

MEMORANDUM OF LAW OF PROPOSED AMICI MASSACHUSETTS NEWSPAPER

PUBLISHERS ASSOCIATION, NEW ENGLAND FIRST AMENDMENT COUNCIL
AND NEW ENGLAND NEWSPAPER AND PRESS ASSOCIATION, INC.
Proposed amici curiae Massachusetts Newspaper Publishers Association (MNPA),
New England First Amendment Council (NEFAC), and New England Newspaper and Press
Association, Inc. (NENPA) respectfully submit this amicus brief with respect to the plaintiffs
motion to compel the disclosure of confidential sources currently pending before the Court.
ARGUMENT
Amici recognize that the Court has the benefit of prior briefing by the parties on
plaintiffs motion to compel. The purpose of this brief is to not to repeat those arguments but
rather to address two of the legal prerequisites to a libel plaintiff obtaining an order to disclose a
confidential news source: (1) a showing that the plaintiff has a substantial, non-speculative need
for a confidential sources identity that outweighs the interest in protecting the free flow of
information; and (2) a showing that the plaintiff has exhausted alternative sources of that
information.

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A.

The First Amendment, Federal Common Law and Massachusetts Common Law
Protect Confidential News Sources.
The proposition that the First Amendment protects the process of information-gathering

has been virtually unquestioned since the Supreme Courts decision in Branzburg v. Hayes, 408
U.S. 665 (1972). Branzburg Court rejected the suggestion that news gathering does not qualify
for First Amendment protection, observing that without some protection for seeking out news,
freedom of the press could be eviscerated.

Id. at 681.

See also id. at 710 (Powell, J.

concurring) (The asserted claim to privilege should be judged on its facts by the striking of the
proper balance between the freedom of the press and the obligation of all citizens to give relevant
testimony with respect to criminal conduct.).
The First Circuit similarly has held that the First Amendment provides qualified
protections against the forced disclosure of confidential sources held by those who gather and
disseminate newsworthy information to the public. See In re Request from the United Kingdom
Pursuant to the Treaty, 718 F.3d 13, 24 (1st Cir. 2013); Bruno & Stillman, 633 F.2d at 598-99;
United States v. LaRouche Campaign, 841 F.2d 1176, 1182; In re Cusumano, 162 F.3d 708, 714
(1st Cir. 1998). Application of this constitutional protection requires courts to balance the
potential harm to the free flow of information that might result against the asserted need for the
requested information. Bruno & Stillman, 633 F.2d at 595-96; LaRouche, 841 F.2d at 1181;
Cusumano, 162 F.3d at 716.
These cases recognize that a request for the compelled disclosure of confidential sources
in a civil case require[s] heightened sensitivity to First Amendment concerns and invite[s] a
balancing of considerations. United Kingdom, 718 F.3d at 24 (internal quotations and citation
omitted).1 Courts afford journalists a measure of protection from discovery initiatives in order

The United Kingdom Court ruled that in grand jury and similar criminal investigatory
proceedings (unlike in a civil libel case), courts need not follow the line of cases which [i]n
(footnote continued to next page)

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not to undermine their ability to gather and disseminate information.

[Citation omitted].

Journalists are the personification of a free press, and to withhold such protection would invite a
chilling effect on speech, and destabilize the First Amendment.

Cusumano, 162 F.3d at

714.
In Bruno & Stillman, for example, the First Circuit held that a libel plaintiff seeking to
compel the disclosure of a confidential source must establish the direct relevance of the desired
information and show that the request is more than a fishing expedition. 633 F.2d at 596-97.
Noting that the values resident in the protection of the confidential sources of newsmen
certainly point towards compelled disclosure from the newsman himself as normally the end, and
not the beginning, of the inquiry, the Court directed trial courts to consider less drastic
alternatives than compulsory disclosure such as whether alternative sources of the information
sought exist. 633 F.2d at 598 (citation and quotations omitted).
Massachusetts state courts similarly have recognized that trial courts are obliged to
consider the effect of compelled disclosure on values underlying the First Amendment and art.
16 of the Declaration of Rights of the Massachusetts constitution and avoid the needless
disclosure of confidential relationships. Petition for the Promulgation of Rules, 395 Mass. 164,
171, 479 N.E.2d 154 (1985) (quotations and citations omitted). The public interest in nondisclosure rest[s] upon the concern that the deterrent effect such disclosure is likely to have
upon future undercover investigative reporting threatens freedom of the press and the publics

(footnote continued from previous page)

substance ... suggest that the disclosure of ... confidential sources may not be compelled unless
directly relevant to the investigation. Id. at 24. The Court was quick to note, however, that [a]
balancing of First Amendment concerns vis--vis the concerns asserted in favor of the compelled
disclosure of academic and journalistic information is the law in this circuit for all First
Amendment cases and that in civil cases (unlike in grand jury cases), there is room for courts
to require direct relevance. Id.

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need to be informed. Sinnott v. Boston Retirement Board, 402 Mass. 581, 587, 524 N.E.2d 100
(1988), cert. denied, 488 U.S. 980 (1988) (quotations, citation and emphasis omitted).
Accordingly, trial courts must be particularly sensitive to preventing exposure for the sake of
exposure, [citation omitted] or any other use of discovery as a means of ... forcing the needless
disclosure of confidential relationships. In the Matter of Walter F. Roche, Jr., 381 Mass. 624,
636-37, 411 N.E.2d 466 (1980).
The standard to be applied normally calls for a more clearly defined protection against
intrusive discovery than that provided by the discretionary supervision contemplated by [Rule]
26(c). In the Matter of a John Doe Grand Jury Investigation, 410 Mass. 596, 599, 574 N.E.2d
373 (1991). [T]he critical inquiry, once there is some showing that the asserted damage to the
free flow of information is more than speculative or theoretical, ... requires a balancing between
the public interest in every person's evidence and the public interest in the free flow of
information. Sinnott, 402 Mass. at 586, 524 N.E.2d 100; Doe, 410 Mass. at 599, 574 N.E.2d
373.2
In Sinnott, for example, an invasion of privacy plaintiff sued various Boston officials for
unlawfully disclosing his medical pension application to The Boston Globe and subpoenaed a
Globe reporter to determine whether the defendants leaked the information.

Reversing a

judgment of contempt against the reporter for refusing to disclose his confidential sources, the
Court noted the lack of clear demonstration of reasons for a need to know the precise identity of
sources and ruled that the inquiry as to the sources identities was . . . more of a needless

See also Ayash v. Dana-Farber Cancer Inst., 46 Mass. App. Ct. 384, 392, 706 N.E.2d 316
(1999) (threshold test of making some showing of non-speculative harm is met by
demonstrating that the reporter would not have received the information he obtained if he had
not promised anonymity to his sources and that the reporters future news-gathering ability, both
generally and in the case being investigated, would be impaired if he violated his promises).

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disclosure of confidential relations than a question that goes to the heart of plaintiffs case.
402 Mass. at 584 n.4, 587, 524 N.E.2d 100. See also Doe, 410 Mass. at 602 (disclosure of the
confidential sources was not warranted because, on close review, the evidence ultimately was
unlikely to significantly benefit the grand jurys investigation); see generally Wojcik v. Boston
Herald, Inc., 60 Mass. App. Ct. 510, 513, 803 N.E. 2d 1261 (2004); Ayash, 46 Mass. App. Ct. at
392-93, 706 N.E.2d 316 (reversing disclosure orders in libel cases).3
Given the sensitivity of inquiry in this delicate area, detailed findings of fact and
explanation of the decision would be appropriate. Bruno & Stillman, 633 F.2d at 598; Petition,
395 Mass. at 173.
1.

A libel plaintiffs must have a substantial, non-speculative need for a

confidential sources identity.

A motion to compel supported only by a libel plaintiffs speculation about what a

confidential news source might say is, by definition, a request for the needless disclosure of a
confidential sources identity. The standard is similar to that which applies in the analogous area
of the informers privilege which, like the protections for reporters sources, calls for balancing
the public interest in protecting the flow of information against the individuals right to prepare
his defense. Roviaro v. United States, 353 U.S. 53, 62 (1957). See also McCray v. Illinois, 386
U.S. 300, 311-14 (1967) (emphasizing the need to assess the particular circumstances of each

The Appeals Courts order in Ayash vacated a disclosure order on the grounds that the plaintiff
had failed to demonstrate a need for confidential sources to pursue her libel claim against a
newspaper. Id. After remand, the trial court ordered disclosure on the alternative grounds that
the source was relevant to the plaintiffs invasion of privacy claim against her former employer
and an emotional distress claim against a newspaper reporter. That disclosure order was
affirmed on appeal by the Supreme Judicial Court. Ayash v. Dana-Farber Cancer Institute, 443
Mass. 367, 401, 822 N.E. 2d 667, cert. denied, 546 U.S. 927 (2005) (trial judge performed the
appropriate balancing test and determined that the plaintiffs need for the information in order to
pursue her claims against [the hospital and the reporter] was tangible and substantial and
outweigh[ed] the public interest in protecting the free flow of information.).

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case in determining the necessity of disclosure). Compare Bruno & Stillman, 633 F.2d at 596
(courts must balance the potential harm to the free flow of information that might result against
the asserted need for the requested information); Sinnott, 402 Mass. at 586, 524 N.E.2d 100
(requiring a balancing between the public interest in every persons evidence and the public
interest in the free flow of information) (internal quotation and citation omitted).
The First Circuit addressed the issue in United States v. Jackson, 918 F.2d 236 (1st Cir.
1990). Substituting the word plaintiff for criminal defendant, the Court stated:
[The plaintiff] simply avers that disclosure of the informants identity might
indicate that the informant provided unreliable information to the police. There is
no clue to the rationale, much less a proffer of evidence, supporting [plaintiffs]
conjecture. Even in a trial setting, mere speculation as to the usefulness of the
informants testimony to defendant is insufficient to justify disclosure of his
identity. [] A different rule would extinguish the efficacy in the informer's
privilege.
Id. at 240 (emphasis in original) (quoting United States v. Estrella, 567 F.2d 1151, 1153 (1st
Cir.1977)).

See also United States v. BatistaPolanco, 927 F.2d 14, 19 (1st Cir.1991)

(disclosure is mandated only when the defendant is able to point to concrete circumstances
sufficient to overcome the public interest in encouraging the flow of confidential information and
the safety of confidential informants); United States v. LaRouche Campaign, 695 F. Supp. 1265,
1279 (D. Mass. 1988) (Where Roviaro applies, the court will order disclosure if defendants
establish a real need.) (citation omitted).
Libel plaintiffs often proceed from the erroneous and speculative assumption that their
case will prejudiced if a reporter is allowed to protect a confidential source. In most (if not all)
libel cases, however, asserting a confidential source privilege only makes the defendants case
more difficult, particularly before a jury. It permits a libel plaintiff to question both the reporter
and the sources motives and reliability, as the plaintiff apparently has done here. If the reporter
did not maintain interview notes, the plaintiff suggests fabrication. If the reporter did maintain
notes, they are used to suggest that information not recorded in the notes was not provided. In all
cases, the empty witness chair is used to the plaintiffs advantage. These are scenarios for

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which no reasonable defendant (or defense counsel) would wish, and are of no benefit to the
defense.
In short, unless a libel plaintiff makes a showing of a substantial, non-speculative need
for a confidential sources identity, a motion to compel the disclosure of the sources identity
should be denied.
2.

A libel plaintiffs must exhaust alternative sources of a confidential sources

identity.

The duty to avoid the needless disclosure of confidential sources requires the plaintiff to
exhaust reasonable alternative sources of the sources identity. In Cusumano, for example, the
First Circuit affirmed a trial court order quashing the subpoenas of two academic authors.
Cusumano arose out of the United States antitrust case against Microsoft. After learning that
two authors were writing a book in which employees of a Microsoft competitor were quoted as
attributing their companys economic problems to self-inflicted wounds rather than to anticompetitive behavior, Microsoft subpoenaed the authors manuscript and underlying interview
notes and tape recordings. Reviewing the trial courts order quashing the subpoena, the First
Circuit found that Microsofts need for the subpoenaed materials admittedly is substantial in the
sense that relevant information likely exists concerning the companys primary defense. 162
F.3d at 716. Nevertheless, because Microsoft could have obtained the same information by
direct discovery of the persons interviewed by the authors, and in view of the fact that forced
disclosure would harm the authors future research efforts, as well as those of other similarly
situated authors, the First Circuit held that the trial court balanced the right array of factors, and
acted well within its discretion in determining that the scales tipped in favor of preserving
confidentiality. 162 F.3d at 717.
The Court of Appeals for the District of Columbia recently reached a similar conclusion
in Jankovic v. International Crisis Group, 822 F.3d 576 (D.C. Cir. 2016). The plaintiff in
Jankovic unsuccessfully appealed from the entry of summary judgment on the grounds that a
libel defendant had failed to disclose confidential sources on which it relied in writing the
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publication at issue. The D.C. Circuit rejected plaintiffs argument, relying on the plaintiffs
failure to take discovery from alternative sources of the information it sought from the defendant.
Id. at 593 (citing Clyburn v. New World Commcns, Inc., 903 F.2d 29, 35 (D.C. Cir. 1990)
(plaintiff may be entitled to compel disclosure if it first exhausts all reasonable alternative
means of identifying the source)). See also Bruno & Stillman, 633 F.2d at 598; Sinnott, 402
Mass. at 584, 524 N.E.2d 100 (affirming order quashing subpoena based in part on the
availability of alternative sources of the same information); see generally Zerilli v. Smith, 656
F.2d 705, 71314 (D.C. Cir.1981); Carey v. Hume, 492 F.2d 631, 639 (D.C. Cir.1974); In re
Walter F. Roche, Jr., 448 U.S. 1312 (1980 (staying Supreme Judicial Courts judgment in Roche,
supra, on the grounds that the party seeking disclosure should have first attempted to obtain the
identity of the confidential sources by deposing 65 witnesses on a list that the reporter confirmed
contained the sources names).
The record in this case indicates that the plaintiff did not take any discovery from
reasonable alternative sources of the information it sought from the defendants. Based on the
redacted summary judgment record available to the public, it appears that plaintiff chose not to
do so despite knowing that (a) the two key sources were employees of the Department of
Homeland Security since its inception; (b) both had senior or supervisory roles in the
Department; (c) one was directly involved in the investigation and the other had a direct link to
the investigation; (d) one was one of the most the most decorated officers in the history of the
Department; and (e) the other was a forensic accountant. Plaintiff also did not try to depose the
four government officials identified in discovery as creating the critical documentary evidence
contained in Exhibits 60 and 61 or any non-confidential sources identified by the defendants
providing information as to the governments investigation of the Boston Marathon bombing and
terrorist activities in Boston, in general, and the plaintiff, in particular. (See, e.g., Grygiel Decl.
Ex. 1 (Interrogatory Response Nos. 2, 5)). This failure to make any efforts to exhaust alternative
sources of a confidential sources identity should be fatal to a motion to compel a journalist to
disclose a confidential source.
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CONCLUSION
For the foregoing reasons, Amici respectfully submit that federal and state law in
Massachusetts require that a libel plaintiff seeking to compel the disclosure of confidential
sources must, among other things, (1) make a showing of substantial, non-speculative need for a
confidential sources identity that outweighs the interest in protecting the free flow of
information; and (2) exhaust reasonable alternative sources of that information.
MASSACHUSETTS NEWSPAPER
PUBLISHERS ASSOCIATION, NEW
ENGLAND FIRST AMENDMENT
COUNCIL, AND NEW ENGLAND
NEWSPAPER AND PRESS
ASSOCIATION, INC.
By their attorneys,

/s/ Jonathan M. Albano

Jonathan M. Albano, Bar No. 013850
jonathan.albano@morganlewis.com
MORGAN, LEWIS & BOCKIUS LLP
One Federal Street
Boston, MA 02110-1726
Telephone:
+1.617.341.7700
Facsimile:
+1.617.341.7701
Dated: August 4, 2016
CERTIFICATE OF SERVICE
I, Jonathan M. Albano, hereby certify that this document filed through the ECF
system will be sent electronically to the registered participants as identified on the Notice of
Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered
participants on August 5, 2016.
/s/Jonathan M. Albano
Jonathan M. Albano

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