Before CLARK, Chief Judge, and HINCKS and STEWART, Circuit Judges.
Judy Garland brought an action against Columbia Broadcasting System, Inc. (CBS), in the district court. Her complaint set out two claims, one for breach of contract, the other alleging that the defendant had made false and defamatory statements about her and had "authorized, requested and induced" their publication in newspapers and elsewhere. An alleged example of such a publication, annexed as an exhibit to the complaint, consisted of a few paragraphs in a column entitled "TV-Radio Today," written by Marie Torre, and published in the New York Herald Tribune on January 10, 1957. In this column Miss Torre attributed to a CBS "network executive" several statements about the plaintiff which, the complaint alleged, were false, defamatory, and highly damaging to the plaintiff's professional reputation. CBS filed an answer and counterclaim, denying among other things that it had made the alleged false and defamatory statements or caused them to be published.
With the issue thus joined, counsel for both parties embarked upon pre-trial discovery proceedings. In a deposition taken by the defendant's counsel, the plaintiff testified that she did not know who at CBS had made the statements appearing in the Torre column, but that she had "been told it was either Lester Gottlieb or Hubbell Robinson." Gottlieb and Robinson were both executives of CBS. In their depositions, taken by the plaintiff's counsel, each denied making the statements in question. Each also denied knowing the identity of the "network executive" referred to in the column.*fn1
The plaintiff's counsel then took Marie Torre's deposition. She testified that the statements appearing in the column were in "exact words" statements which had been made to her over the telephone by a CBS informant. She refused, under repeated questioning, to give the name of this "network executive," asserting that to do so would violate a confidence. Proceedings were then initiated in the district court to compel her to disclose the name. Her counsel countered by filing a motion for an order directing that the identity of the CBS informant "not be inquired into" upon the ground that examination upon this subject would "unreasonably annoy, embarrass and oppress" the deponent. F.R.Civ.P. Rule 30, 28 U.S.C.A. After a hearing the district court denied the latter motion and ordered the witness to state the name of her informant. Upon her refusal in the presence of the court to do so, she was held in criminal contempt, and this appeal followed.*fn2
Three alternative arguments are advanced in support of the appellant's position that it was error to require her to disclose in these pre-trial proceedings the identity of a confidential news source.*fn3 The first contention is a Constitutional one - to compel newspaper reporters to disclose confidential sources of news would, it is asserted, encroach upon the freedom of the press guaranteed by the First Amendment, because "it would impose an important practical restraint on the flow of news from news sources to news media and would thus diminish pro tanto the flow of news to the public." Secondly, it is urged that quite apart from any Constitutional question, the societal interest in assuring a free and unrestricted flow of news to the public should impel this court to hold that the identity of a confidential news source is protected by at least a qualified privilege. Finally, the appellant contends that in the particular circumstances of this case the district court in any event should have ordered, under F.R.Civ.P. Rule 30, that no inquiry be made as to the identity of the CBS spokesman.
As to the Constitutional issue, we accept at the outset the hypothesis that compulsory disclosure of a journalist's confidential sources of information may entail an abridgment of press freedom by imposing some limitation upon the availability of news.*fn4 Freedom of the press within the historic meaning of the First Amendment meant primarily freedom from previous restraints upon publication and freedom from censorship. Near v. State of Minnesota, 1931, 283 U.S. 697, 716, 51 S. Ct. 625, 75 L. Ed. 1357. Yet in the domain of indispensable First Amendment liberties, it is essential "not to limit the protection of the right to any particular way of abridging it." Grosjean v. American Press Co., 1936, 297 U.S. 233, 249, 56 S. Ct. 444, 449, 80 L. Ed. 660. The fact that no direct restraint is imposed does not determine the question. American Communications Ass'n, C.I.O. v. Douds, 1950, 339 U.S. 382, 402, 70 S. Ct. 674, 94 L. Ed. 925. "[Abridgment] of such rights, even though unintended, may inevitably follow from varied forms of governmental action." National Ass'n for Advancement of Colored People v. State of Alabama ex rel. Patterson, 1958, 357 U.S. 449, 461, 78 S. Ct. 1163, 1171, 2 L. Ed. 2d 1488.
But freedom of the press, precious and vital though it is to a free society, is not an absolute. What must be determined is whether the interest to be served by compelling the testimony of the witness in the present case justifies some impairment of this First Amendment freedom. That kind of determination often presents a "delicate and difficult" task. Schneider v. State of New Jersey, 1939, 308 U.S. 147, 161, 60 S. Ct. 146, 161, 84 L. Ed. 155; American Communications Ass'n, C.I.O. v. Douds, supra, 339 U.S. at page 400, 70 S. Ct. at page 684 (and see cases cited in that opinion at page 398 and 399, at pages 683 and 684 respectively). The task in the present case, though perhaps delicate, does not seem difficult.
"Liberty, in each of its phases, has its history and connotation." Near v. State of Minnesota, supra, 283 U.S. at page 708, 51 S. Ct. at page 628. Freedom of the press, hard-won over the centuries by men of courage, is basic to a free society. But basic too are courts of justice, armed with the power to discover truth. The concept that it is the duty of a witness to testify in a court of law has roots fully as deep in our history as does the guarantee of a free press.
It would be a needles exercise in pedantry to review here the historic development of that duty.*fn5 Suffice it to state that at the foundation of the Republic the obligation of a witness to testify and the correlative right of a litigant to enlist judicial compulsion of testimony were recognized as incidents of the judicial power of the United States. Blair v. United States, 1919, 250 U.S. 273, 279-281, 39 S. Ct. 468, 63 L. Ed. 979; Wilson v. United States, 1911, 221 U.S. 361, 372-373, 31 S. Ct. 538, 55 L. Ed. 771; Blackmer v. United States, 1932, 28j U.S. 421, 438, 52 S. Ct. 252, 76 L. Ed. 375; United States v. Bryan, 1950, 339 U.S. 323, 331, 70 S. Ct. 724, 94 L. Ed. 884. Whether or not the freedom to invoke this judicial power be considered an element of Fifth Amendment due process, its essentiality to the fabric of our society is beyond controversy.*fn6 As Chief Justice Hughes put it: "(One] of the duties which the citizen owes to his government is to support the administration of justice by attending its courts and giving his testimony whenever he is properly summoned." Blackmer v. United States, supra, 284 U.S. at page 438, 52 S. Ct. at page 255.
Without question, the exaction of this duty impinges sometimes, if not always, upon the First Amendment freedoms of the witness. Material sacrifice and the invasion of personal privacy are implicit in its performance. The freedom to choose whether to speak or be silent disappears. But "[the] personal sacrifice involved is a part of the necessary contribution of the individual to the welfare of the public." Blair v. United States, supra, 250 U.S. at page 281, 39 S. Ct. at page 471.
If an additional First Amendment liberty - the freedom of the press - is here involved, we do not hesitate to conclude that it too must give place under the Constitution to a paramount public interest in the fair administration of justice. "The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government." Chambers v. Baltimore & Ohio R. Co., 1907, 207 U.S. 142, 148, 28 S. Ct. 34, 38, 52 L. Ed. 143. This, as Mr. Justice Frankfurter has pointed out in a somewhat different context, "has nothing to do with curtailing expression of opinion, be it political, economic, or religious, that may be offensive to orthodox views. It has to do with the power of the state to discharge an indispensable function of civilized society, that of adjudication controversies between its citizens and between citizens and the state through legal tribunals in accordance with their historic procedures." Bridges v. State of California, 1941, 314 U.S. 252, 291, 62 S. Ct. 190, 207, 86 L. Ed. 192 (dissenting opinion). See Patterson v. Colorado ex rel. Attorney General, 1907, 205 U.S. 454, 462-463, 27 S. Ct. 556, 51 L. Ed. 879.*fn7
It is to be noted that we are not dealing here with the use of the judicial process to force a wholesale disclosure of a newspaper's confidential sources of news, nor with a case where the identity of the news source is of doubtful relevance or materiality. Cf. National Ass'n for Advancement of Colored People v. State of Alabama ex rel. Patterson, 1958, 357 U.S. 449, 464-465, 78 S. Ct. 1163, 2 L. Ed. 2d 1488. The question asked of the appellant went to the heart of the plaintiff's claim. We hold that the Constitution conferred no right refuse an answer.
But even though lacking Constitutional sanction, the appellant's refusal to disclose the name of her informant should, it is asserted, be protected by an evidentiary privilege. A threshold question - whether the existence of such a privilege is to be determined in this diversity case solely by New York law - is one unnecessary to decide.*fn8 If New York law controls, there is no privilege. People ex rel. Mooney v. Sheriff of New York County, 1936, 269 N.Y. 291, 199 N.E. 415, 102 A.L.R. 769. If we are free to look beyond the law of New York, we find no reason to depart from the precedents, federal and state, refusing to recognize such a privilege in the absence of a statute creating one. Brewster v. Boston-Herald-Traveler Corp., ...