Argued: May 18, 2017
A. Foster, attorney general (Stephen G. LaBonte, assistant
attorney general, on the brief and orally), for the State.
Brennan, Lenehan, Iacopino & Hickey, of Manchester
(Michael J. Iacopino and Jenna M. Bergeron on the brief), for
& Reno, P.A., of Concord (William L. Chapman on the brief
and orally), for Nicholas Reid.
State appeals the order of the Superior Court
(McNamara, J.) granting news reporter Nicholas
Reid's (Reid) motion to quash the State's subpoena
compelling him to testify against the defendant, Carl Gibson.
We reverse and remand.
relevant facts follow. Republican candidate Yvonne
Dean-Bailey (Dean-Bailey) was running in a May 19, 2015
special election for State Representative from Rockingham
County District 32. On May 14, 2015, the defendant, a
volunteer for the opposing Democratic Party candidate,
allegedly issued a false press release stating that
Dean-Bailey was dropping out of the race.
press release was attached to an e-mail with a subject line
stating, "BREAKING: Yvonne Dean-Bailey concedes
Rockingham 32 special election #nhpolitics." (Bolding
omitted.) The press release stated that Dean-Bailey, "a
freshman . . . at Mount Holyoke College, " had
"bowed out of the May 19 special election" in order
to "focus[ ] exclusively on her studies before
considering another run for office."
who was covering the special election as a reporter for the
Concord Monitor, received the e-mail with the attached press
release and became suspicious because of the form and content
of the e-mail and attached file. He contacted a
representative of the New Hampshire Republican Party who was
unaware of Dean-Bailey withdrawing from the race. Reid then
wrote a short article for the May 15, 2015 issue of the
newspaper titled "Email claiming Dean-Bailey is
conceding called a hoax."
investigated the file that was attached to the May 14 e-mail
by selecting "Properties" under the
"File" tab, which indicated that the creator of the
file was "Carl Gibson" and that the file was
created on May 14, 2015, at 19:30:00. Reid then conducted an
internet search to determine how to contact Gibson.
15, Reid contacted by telephone a man who identified himself
as Gibson. Based upon that conversation and his conversations
with other sources, Reid wrote a second article published in
the Concord Monitor on May 16 under the headline, "Man
who sent hoax email from GOP candidate had 'too many
beers' before 'prank.'" (Bolding omitted.)
The article, describing Gibson as "[a] liberal
activist" who had been "booted" from the
opposing candidate's special election campaign, reported
that Gibson stated to Reid that he had "creat[ed] a fake
email account and sen[t] a phony press release, "
thinking it was "a prank" he could play "in
the heat of the moment." (Quotation omitted.)
October 2015, the defendant was charged with "False
Documents, Names or Endorsements, " see RSA
666:6 (2016), attempted voter suppression, see RSA
629:1 (2016) and RSA 659:40, III(b) (2016), and voter
suppression, see RSA 659:40, III(c) (2016). In March
2016, Reid was served with a subpoena requiring him "to
testify what [he] know[s] relating to a criminal matter to be
heard and tried between the State . . . and Carl
Gibson." The information sought by the State is
"inculpatory statements that amount to a confession made
by the defendant while being interviewed by Mr. Reid."
moved to quash the subpoena on the ground that it violates
his "news gathering privilege" under Part I,
Article 22 of the New Hampshire Constitution and the First
Amendment to the United States Constitution. The State
objected, asserting that the privilege does not apply because
the testimony it seeks from Reid concerns only
non-confidential information. Following a hearing, the trial
court granted Reid's motion to quash. The court found
that "the news gathering privilege guaranteed by Part I,
Article 22 of the New Hampshire State Constitution must
extend to protect unpublished work product of journalists in
order to ensure unimpeded and uncensored flow of reporting
that is essential to a free state." In addition, the
trial court found that the defendant's ...