NEW YORK TIMES CO. Et Al. v. JASCALEVICH
Justice White, acting alone as Circuit Justice, refused to stay a New Jersey court's order jailing a New York Times reporter and fining the newspaper for refusing to turn over confidential files subpoenaed by a murder defendant.
The order leaves the reporter in jail and the newspaper facing daily fines while the underlying appeal continues in New Jersey courts, and it declines to recognize any special constitutional shield protecting journalists from such subpoenas at this stage.
“There is no present authority in this Court either that newsmen are constitutionally privileged to withhold duly subpoenaed documents material to the prosecution or defense of a criminal case or that a defendant seeking the subpoena must show extraordinary circumstances before enforcement against newsmen will be had.”
Explaining that no reporter's privilege against subpoenas had yet been recognized by the Court.
How it got here: New Jersey's Superior Court held the applicants in contempt; the Appellate Division stayed the criminal contempt but not the civil contempt; the state Supreme Court refused a further stay, prompting this emergency application.
The Case in Depth
What happened
A New York Times reporter, Myron Farber, was subpoenaed by a defendant on trial for murder in New Jersey to produce his investigative files for the judge's private review. Farber and the Times refused, citing First Amendment and state shield-law protections. The trial court held Farber in civil and criminal contempt, jailing him and fining the Times $5,000 per day of noncompliance.
The question before the Court
Should a Supreme Court Justice block a reporter's jailing for contempt while he fought a subpoena for his confidential source materials in a murder trial?
Why it matters
The ruling meant a journalist stayed behind bars and his newspaper kept accruing fines for refusing to hand over source materials, without any Supreme Court recognition of a reporter's privilege against such subpoenas. It signaled to reporters nationwide that courts could compel disclosure of confidential files in criminal trials absent a stronger constitutional showing.
What changes now
The temporary stay Justice White had entered was set to expire the next day, meaning the reporter's contempt commitment and the newspaper's daily fines would resume. The underlying appeal of the contempt judgments continued in the New Jersey Appellate Division, which could still address the reporter's federal and state-law claims, including the state shield-law defense, before any further Supreme Court review became possible.
What this does not decide
The opinion does not decide whether reporters have any constitutional privilege to withhold subpoenaed materials, or what showing a party seeking such materials must make. It addresses only whether a stay should issue at this preliminary stage, leaving the privilege question, and the pending state-law shield-statute claim, unresolved.
Concurrences and dissents
How the Justices voted
Majority (1). Justice White (author).
How the Court got there
The legal reasoning, step by step
- The Court first had to decide whether it even had power to act: under 28 U.S.C. §§ 1257 and 2101(f), a stay is available only for a final judgment of a state's highest court that the Supreme Court could review on certiorari.
- Contempt judgments against nonparty witnesses are normally treated as final for appellate purposes, but here the civil contempt judgment was still being appealed inside the New Jersey court system, so it was not yet a judgment of the state's highest court.
- Drawing on Valenti v. Spector, a prior in-chambers ruling that refused a similar stay because the state appeal was still pending, the Court treated premature federal review as generally unavailable, while distinguishing Nebraska Press Assn. v. Stuart, where a different Justice found jurisdiction because a direct prior restraint on the press causes fresh, irreversible harm each day it continues — a rationale the Court found inapplicable here since no prior restraint on publication was at issue.
- Treating the jurisdictional question as substantial enough to justify considering a stay while it remained unresolved, the Court turned to whether an existing constitutional privilege shields reporters from subpoenas, and found none established in cases like Branzburg v. Hayes or United States v. Nixon, which instead required only a sufficient initial showing of materiality before ordering documents produced for private judicial review.
- Because the trial judge, after weeks of trial, had twice certified that the reporter's files were necessary and material to the defendant's right to a fair trial and to call and impeach witnesses, and because the order sought only private inspection rather than public disclosure, the Court concluded the subpoena's enforcement to date satisfied whatever preconditions might apply and that no irreparable harm to any unadjudicated privilege was shown.
Doctrinal impact
Cases affected by this decision
Distinguishes Nebraska Press Assn. v. Stuart (423 U. S. 1327)
Says that ruling's rationale for finding jurisdiction over an unstayed state order applied only to direct prior restraints on publication, not this contempt case.
Reaffirms Valenti v. Spector
Follows its rule that a federal stay is premature while a contempt commitment is still on appeal in state court.
Reaffirms United States v. Nixon (418 U. S. 683)
Relies on its standard requiring only a sufficient initial showing of materiality before ordering in camera document production.