## Facts

- Plaintiffs Anthony T. Zerilli and Michael Polizzi sued the U.S. Attorney General, the FBI Director, and the Department of Justice under the Privacy Act and the Fourth Amendment.
- Plaintiffs alleged Justice Department personnel leaked to the press transcripts of conversations recorded by an FBI listening device placed at a Detroit business.
- The parties stipulated the listening device had been installed without a warrant in violation of the Fourth Amendment.
- Plaintiffs alleged a series of newspaper articles on organized crime relied on information from the transcripts.
- In discovery, plaintiffs deposed reporter Seth Kantor, who refused to disclose confidential sources based on a qualified First Amendment reporter’s privilege.
- The district court denied plaintiffs’ motion to compel source disclosure and later granted summary judgment to the government on both the Privacy Act and Fourth Amendment claims.
- Plaintiffs appealed the denial of compelled disclosure and the grant of summary judgment.

## Issues

1. Whether a reporter may be compelled in a civil suit brought by private plaintiffs to disclose confidential sources to prove unlawful government leaks.
2. Whether summary judgment for the government was proper on the Privacy Act and Fourth Amendment claims given the evidentiary record without compelled source disclosure.

## Decision

- The D.C. Circuit affirmed the denial of the motion to compel the reporter to reveal confidential sources.
- The court held that, on the facts presented, First Amendment interests in protecting confidential sources outweighed plaintiffs’ interest in compelled disclosure.
- The court emphasized plaintiffs had not exhausted reasonable alternative sources for the information before seeking to compel a reporter.
- The court affirmed summary judgment for the government because plaintiffs lacked evidence identifying any government leaker or otherwise establishing an actionable disclosure attributable to defendants.

## Legal Principles

- In civil cases, reporters have a qualified First Amendment privilege against compelled disclosure of confidential sources.
- Compelling disclosure from a reporter is generally a last resort; private civil litigants must ordinarily show exhaustion of reasonable alternative sources before seeking compelled disclosure.
- Even where the information is important to a party’s case, courts balance the need for disclosure against the chilling effect on newsgathering and source confidentiality.
- A stipulation that government surveillance was unconstitutional does not, by itself, prove a later dissemination to the press or establish liability for alleged leaks; plaintiffs must produce evidence tying disclosure to defendants to survive summary judgment.

## Conclusion

The court protected a reporter’s confidential sources from compelled disclosure in a private civil suit because plaintiffs had not pursued reasonable alternative means to identify the alleged leakers, and it affirmed summary judgment where plaintiffs could not produce evidence that government officials disclosed the intercepted information in violation of the Privacy Act or as a basis for Fourth Amendment damages.


Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981)