## Facts

- A newspaper reporter investigated suspicious hospital deaths connected to a surgeon later charged with murder and published articles that helped trigger prosecution.
- During the murder trial, the defendant subpoenaed the reporter and the newspaper for the reporter’s investigative files, including notes and materials that could reveal confidential sources.
- The reporter and the newspaper moved to quash, invoking the First Amendment and New Jersey’s journalist shield statute.
- The trial court enforced the subpoenas; the reporter refused to produce the materials.
- The reporter was jailed for contempt, and the newspaper was fined per day for noncompliance.

## Issues

1. Whether New Jersey’s shield statute constitutionally protects journalists from compelled disclosure of sources and unpublished materials in a criminal case.
2. Whether the First Amendment provides an absolute reporter’s privilege barring enforcement of the subpoenas.
3. Whether applying the shield statute to prevent disclosure would violate the criminal defendant’s Sixth Amendment and parallel state constitutional rights to compulsory process and a fair trial.

## Decision

- The court held the shield statute was facially constitutional as a legislative policy favoring newsgathering and source protection.
- The court held that, as applied in this criminal case, the statute could not bar production to the extent necessary to protect the defendant’s constitutional rights to compulsory process and a fair trial.
- The court rejected an absolute First Amendment privilege against compelled disclosure in this context, relying on the limited scope of any such privilege under governing precedent.
- The court sustained the subpoenas’ enforcement and affirmed the contempt sanctions against the reporter and the newspaper for willful noncompliance with final court orders.

## Legal Principles

- A legislatively created journalist privilege may be valid on its face but must yield when its application would deny a criminal defendant compulsory process and a fair trial.
- When a defendant makes a specific, substantial showing that a journalist’s unpublished materials are likely relevant and material to the defense, source-protection interests do not automatically defeat compelled production.
- The First Amendment does not create an absolute immunity for reporters from complying with valid subpoenas in criminal proceedings.
- Courts may permit coercive contempt sanctions to enforce compliance with subpoena orders in serious criminal cases when a witness or entity refuses to obey.

## Conclusion

The court upheld New Jersey’s shield statute generally but required disclosure in a criminal case where withholding a reporter’s materials would impair the defendant’s constitutional ability to obtain evidence and present a defense, and it affirmed contempt sanctions for refusal to comply with the subpoenas.


In re Farber, 394 A.2d 330 (N.J. 1978)