The U.S. Court of Appeals for the Third Circuit has become the second appellate court to attempt to pin down the definition of the term "journalist." In a case involving the two major combatants for supremacy in the world of professional wrestling, the Third Circuit butted heads with the would-be subject of a deposition in the case who refused to provide information based upon a journalist's privilege not to testify. In re Madden, 151 F.3d 125 (3d Cir. 1998).

   The issue of who is a journalist entered the ring via a dispute between Titan Sports, Inc. (Titan), owners of the World Wrestling Federation (WWF), and Turner Broadcasting System (Turner), which runs World Championship Wrestling (WCW). Titan had been challenging Turner to engage in interpromotional events that would pit WWF personalities against WCW personalities. Turner refused to allow any of its wrestlers to participate in interpromotional events.

   Titan sued Turner in U.S. District Court for the District of Connecticut alleging unfair trade practices, copyright infringement, and other pendant state law claims. As part of discovery in that action, Titan subpoenaed an employee of Turner named Mark Madden. Madden produces tape-recorded commentaries for Turner that are replayed to callers on WCW's 900-number fan hotline. These commentaries promote upcoming WCW events and pay-per-view television programs. They also announce the results of recent matches and discuss the wrestlers' careers, personalities, and latest gossip. Madden asserted that he received information for these commentaries from confidential sources; he also admitted, however, that his announcements are as much entertainment as they are journalism.

   In its deposition, Titan requested the identity of some of Madden's sources that Titan claimed led to false and misleading statements by Madden on the WCW hotline. Madden invoked the Pennsylvania Journalist's Shield Law. 42 Pa. Cons. Stat. Ann. §5942. Titan moved the court to compel Madden to testify. The motion to compel was denied. The district court concluded that Madden was a journalist whose interest in protecting his sources was not outweighed by Titan's need for disclosure. Titan Sports, Inc. v. Turner Broadcasting System, Inc., 967 F. Supp. 142 (W.D. Pa. 1997). (The U.S. District Court for the Western District of Pennsylvania was the venue for this issue because it is the district in which Madden resides.)

Appellate Court Action

On appeal, the U.S. Court of Appeals for the Third Circuit reversed. The court initially noted that exclusionary rules and privileges are not favored. It recognized, however, that a journalist's privilege based on the First Amendment is necessary to protect the integrity of the newsgathering process and to ensure the free flow of information to the public. Heeding the Supreme Court, the Third Circuit was wary to undertake the task of qualifying who is a journalist: "Sooner or later it [will] become necessary to define those categories of newsmen who qualify for the privilege < a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer just as much as the large metropolitan publisher." In re Madden, 151 F.3d at 128 (citing Branzburg v. Hayes, 408 U.S. 665, 703-04 (1972)). The court reviewed the few cases in which persons beyond the "traditional" media have raised the journalist's privilege. It found that documentary filmmakers have been allowed to invoke the privilege. Silkwood v. Kerr-McGee, 563 F.2d 433 (10th Cir. 1977). Authors of technical publications and professional investigative books also have been allowed to raise the privilege. Apicella v. McNeil Lab, Inc., 66 F.R.D. 78 (E.D.N.Y. 1975)(technical publications); Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993) (professional investigative books). The court next reviewed the only decision to date that attempted to fashion a test to answer the question of who may invoke this privilege. The case was Von Bulow v. Von Bulow, 811 F.2d 136 (2d Cir. 1987). The Von Bulow court had made the following findings concerning the application of the journalist's privilege: (1) The process of newsgathering is a qualified, protected right under the First Amendment; (2) a true journalist, at the beginning of the newsgathering process, will have the intention of disseminating his or her information to the public; (3) an individual may successfully claim the journalist's privilege if he or she is involved in activities traditionally associated with the gathering and dissemination of news, even though he or she may not be a member of the traditional press; (4) the relationship between the journalist and his or her sources does not have to be confidential in order to invoke the privilege; and (5) unpublished resource material may be protected as well. The Third Circuit adopted the Von Bulow reasoning to determine whether Madden is a journalist. It created a three-part test to resolve the issue: [I]ndividuals claiming the protections of the journalist's privilege must prove three elements: that they (1) are engaged in investigative reporting; (2) are gathering news; and (3) possess the intent at the inception of the newsgathering process to disseminate this news to the public. In re Madden, 151 F.3d at 131. Madden failed all three parts of this test. The court first inquired into whether Madden was engaged in "investigative reporting." It answered this question in the negative: Madden's activities in this case cannot be considered "reporting" let alone "investigative reporting." By his own admission, he is an entertainer, not a reporter, disseminating hype, not news. Although Madden proclaims himself to be "Pro Wrestling's only real journalist," hyperbolic self-proclamation will not suffice as proof that an individual is a journalist. Id. at 130. The court found that Madden was not gathering or investigating "news." Instead, "Madden's work amounts to little more than creative fiction about admittedly fictional wrestling characters who have dramatic and ferocious-sounding pseudonyms like 'Razor Ramon' and 'Diesel.'" Id. Madden also had no intent at the beginning of the research process to disseminate the information to the public, instead preferring to create a piece of art or entertainment. The court remanded the case back to the district court for further proceedings.