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State v. Gibson

Supreme Court of New Hampshire

September 21, 2017

THE STATE OF NEW HAMPSHIRE
v.
CARL GIBSON

          Argued: May 18, 2017

          Joseph 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 the defendant.

          Orr & Reno, P.A., of Concord (William L. Chapman on the brief and orally), for Nicholas Reid.

          DALIANIS, C.J.

         The 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.

          I

         The 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.

         The 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."

         Reid, 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."

         Reid 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.

         On May 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.)

         In 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."

         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 ...


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