Subject of reporting attempts to force journalist to reveal a source

A New York State Supreme Court judge allowed a lawsuit to proceed under seal for more than three months under which investigative journalist Teri Buhl was asked to disclose a confidential source. The judge ultimately ruled that she could not be forced to reveal the source’s identity.

Bruce Bernstein, an employee at Rockmore Capital and the subject of a story by Buhl on securities fraud, filed a lawsuit alleging that Buhl had use a document in her reporting from his divorce filings that was under seal.

“Bernstein is entitled to pre-action discovery that will allow him to determine who - the Binn Parties, their counsel, Aufrichtig or a party currently unknown to Bernstein - sent the Document and email to Buhl,” reads the pre-discovery petition filed December 2018.

Manhattan Judge W. Franc Perry sealed the lawsuit, preventing the public from ascertaining the details of the lawsuit for months after it was filed.  

“I was still reporting on securities fraud, but I couldn’t report that they were suing me and bullying me,” Buhl told the U.S. Press Freedom Tracker.

On Jan. 18, Buhl wrote on her news website, Smashmouth Investigative Journalism, that a subject of her reporting was attempting to force her to disclose a source, and that she was fighting back.

Buhl’s attorneys filed an opposition to the application to seal the records, and filed in support of the motion to dismiss the pre-action disclosure petition on Jan. 28.

“In a desperate bid to keep potentially damaging information from public view, Petitioner seeks to upend bedrock constitutional principles protecting both the public’s right to access the courts and the free exchange of ideas,” the opposition reads. “Petitioner has brought this special proceeding under CPLR 3102(c), in part, to compel Ms. Buhl, a seasoned investigative journalist, to reveal confidential source information relating to her reporting on Petitioner’s possible SEC violations.”

On March 5, the judge ruled that Buhl could not be forced to disclose her confidential source. Buhl said that on the Friday before, March 1, the judge had ruled in favor of a motion by Buhl’s attorneys to unseal the case.

The dismissal of Bernstein’s petition for pre-discovery cites reporters’ ability to protect their sources:  “...[G]iven New York’s long tradition of protecting freedom of the press and recognizing the critical role that the press plays in our democratic society, Ms. Buhl, as a professional journalist, is protected by the Shield Law, which was enacted to provide the highest level of protection in the nation for those which gather and report the news and to promote the free flow of dissemination.”

On March 4, Buhl updated the post on her website to note that numerous news organizations and press freedom groups, including the New York Times and Reporters without Borders, had joined an amicus brief in support.

“This is an important win because it confirms that the New York shield law applies to freelance journalists like Teri Buhl, who self-publish on their own news sites,” said Sarah Matthews, staff attorney for Reporters Committee for Freedom of the Press, which submitted its own friend-of-the-court brief in January. “Unsealing this case was particularly important because it involved an attempt to force a journalist to reveal her source.”

The Press Freedom Defense Fund provided the legal funding for Buhl’s case. (Full disclosure: Matthews provides intake for the Fund and sits on the steering committee for the Tracker.)

Buhl agreed that the judge’s ruling helps all freelancers in New York.

“It’s alarming that a state court judge even agreed to seal this case before any hearing took place, based on what one Wall Street lawyer said in his motion,” said Buhl said. “Pre-action discovery cannot be used as a fishing expedition to get reporters’ sources.”

Buhl also told the Tracker that she could think of no circumstance under which she would comply with such a legal order and reveal the identity of a source.

“I would rather be held in contempt,” she said.

Bernstein did not respond to request for comment by the U.S. Press Freedom Tracker.

— The U.S. Press Freedom Tracker catalogues press freedom violations in the United States. Email tips to tips@pressfreedomtracker.us.

This article was updated to reflect that Reporters Committee for Freedom of the Press submitted its own amicus brief in the case.