Range Development Company of Chisholm v. Star Tribune, Paul McEnroe

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-0122

Range Development Company of Chisholm, et al.,
Respondents,

vs.

Star Tribune, et al.,
Defendants,

Paul McEnroe,
Appellant.

Filed September 12, 2016
Reversed
Jesson, Judge

St. Louis County District Court
File No. 69HI-CV-14-665

James F. Clark, Clark Law Office, P.C., Hibbing, Minnesota (for respondent)

John P. Borger, Mary A. Walker, Leita Walker, Faegre Baker Daniels LLP, Minneapolis,
Minnesota (for appellant)

Considered and decided by Stauber, Presiding Judge; Reyes, Judge; and Jesson,

Judge.

SYLLABUS

The standards for ordering disclosure of a journalist’s confidential source under

Minnesota Statutes section 595.025, subdivisions 1, 2 (2014), require an affirmative

demonstration that the identity of the source will lead to persuasive evidence on the

elements of a defamation claim.
 OPINION

JESSON, Judge

In this defamation action, appellant-journalist Paul McEnroe seeks review of the

district court’s order compelling him to reveal the identity of a source who supplied him

with a government report critical of respondent-plaintiff Range Development Company

(Range), owner of an assisted-living center. Because we conclude that, under the

defamation exception to the Minnesota Free Flow of Information Act, Minnesota Statutes

sections 595.021-.025 (2014), a plaintiff seeking to discover the identity of a journalist’s

confidential source must make an affirmative showing that disclosing the source would

lead to persuasive evidence on the elements of falsity or malice, and because the district

court erred by ordering discovery when this requirement was not met, we reverse.

FACTS

On January 15, 2013, an aide at Hillcrest Terrace Assisted Living Facility in

Chisholm found a resident slouched in his chair, unresponsive to shaking or shouting.

Employees of Hillcrest, which is owned by Range, called emergency personnel. Chisholm

police officers and a crew from Chisholm Ambulance Service quickly arrived. They

discovered the resident, still unresponsive, seated in a urine-soaked chair. The police

officers noticed that the resident’s room was messy and cluttered, with the carpet soaked

in urine. The strong odor of urine compelled one officer to leave the room. Employees of

the ambulance service also encountered a strong urine smell and noticed that the floor was

“sticky” near where the resident was seated. The resident, who had developmental

disabilities, dementia, and diabetes, was found to have critically low blood sugar. He was

2
transported to a hospital, where he was diagnosed with urosepsis, a systemwide infection

originating in the urinary tract. At the hospital, his condition improved.

About a week later, one of the ambulance-service employees filed a report alleging

neglect of the resident in violation of the Vulnerable Adults Act, Minnesota Statutes section

626.557 (2012). The Minnesota Department of Health (MDH) investigated the matter and

issued a report substantiating a finding of neglect of the resident by Hillcrest. The original

MDH report referred to strong urine odors, inadequate monitoring of the resident’s blood-

sugar levels, his urosepsis and hospitalization, and inadequate housekeeping services. It

included additional statements about the resident’s condition and the state of his room,

including that he “was found unresponsive” and that “[t]he end table near the recliner was

stained with a black substance that appeared to be mold.” It also stated that copies were

being provided to several governmental entities, including the St. Louis County Attorney.

Shortly before the public release of this MDH report, Paul McEnroe, a longtime

reporter for the Star Tribune, obtained a copy of the report from a confidential source and

wrote an article on its contents. McEnroe’s newspaper article, which was published online

on April 17, 2013, and in print the next day, contained nine alleged misstatements

concerning the resident’s condition, the state of his room, the substantiation of neglect, and

a referral to the St. Louis County Attorney’s Office. The MDH report was publicly released

on its website shortly after publication of McEnroe’s story.

3
 Range first administratively appealed the MDH findings, which resulted in a

narrower factual basis for the maltreatment determination.1 Next, Range filed a defamation

lawsuit against Star Tribune and McEnroe, Chisholm Ambulance Service and its

employees, and McEnroe’s unidentified source. Discovery commenced and focused, in

part, on the identity of McEnroe’s source. After deposing McEnroe and several

ambulance-service employees, Range was unable to identify the source. 2 McEnroe did

provide an affidavit stating that the confidential source had supplied him with a copy of

the report a few days before it was posted online, and that he wrote the article based on the

report, and not on any other information provided by the confidential source. He

acknowledged that he also based the article on his own medical research online and his

general knowledge of the working relationship between licensing agencies and law

enforcement relating to possible abuse of vulnerable adults.

Range moved to compel discovery of the source’s identity. It argued that

McEnroe’s claim that all his information for the article came from the report was

inconsistent with the fact that some of the article’s statements (e.g., that the resident was

“barely alive,” and that the case was referred for criminal charges) differed from the report.

Range sought to learn where—if anywhere—this additional information came from. It

1
Based on further information provided in the administrative appeal, MDH decided not to
pursue medical-neglect allegations, but instead to issue a maltreatment determination based
only on neglect for failure to provide adequate housekeeping to maintain a livable
environment.
2
McEnroe’s attorney instructed him not to answer deposition questions on whether he
discussed the report with the person from whom he received it and whether that person was
an MDH employee.

4
posited that McEnroe “got some other information from somebody else.” After a hearing,

the district court issued an order requiring McEnroe to disclose the identity of his source

to Range’s counsel.3 The district court stated:

Given that several statements appearing in the newspaper
article in question arguably deviate significantly from the
actual information available in the [MDH] report that the
article is said to be based on, it is only logical to conclude the
identity of defendant McEnroe’s source will provide evidence
as to whether or not he, or any other named defendant, spoke
with actual malice in making the allegedly defamatory
statements.

McEnroe filed this appeal of that order, as permitted by Minnesota Statutes section

595.025, subdivision 3. The district court then issued an order dismissing the Range

corporate principals as plaintiffs and granting summary judgment in favor of defendants

Chisholm Ambulance Service and its employees. But it denied summary judgment as to

Star Tribune and McEnroe, concluding that three of the allegedly defamatory statements—

that “black mold festered on a table,” that the resident was found “barely alive,” and that

“[t]he case has been referred to the St. Louis County attorney’s office for possible criminal

charges”—met the legal thresholds for submission to a jury on the elements of material

falsity and actual malice.4 Star Tribune and McEnroe petitioned this court for discretionary

3
McEnroe had by then left his job at Star Tribune and was working at KSTP-TV.
4
In denying summary judgment, the district court also held that six of the nine defamatory
statements alleged by Range were protected by a fair reporting privilege applicable to fair
and accurate reports of governmental proceedings. See Moreno v. Crookston Time Printing
Co., 610 N.W.2d 321, 333 (Minn. 2000) (explaining the fair-reporting privilege). The
district court held that three of the statements did not meet the standard for applying such
a privilege. Because we do not address the merits of the order denying summary judgment,
and the district court’s order compelling disclosure, which is the subject of this appeal, did
not address a fair-reporting privilege, we do not consider the possible application of such

5
review of the portion of the order denying summary judgment, but this court declined to

grant discretionary review. We therefore address only the district court’s order compelling

disclosure of the confidential source.

ISSUE

Did the district court err by ordering disclosure of McEnroe’s confidential source

based on the defamation exception in the Free Flow of Information Act?

ANALYSIS

This case stands at the intersection of common-law defamation, the First

Amendment right to free speech, and the parameters of a journalist’s privilege, if any, under

the First Amendment. McEnroe seeks to protect his source through recognition of a

constitutionally imposed qualified journalist’s privilege and a broad reading of the

journalist’s privilege provided by Minnesota statute in the act. He argues that, before he

can be compelled to identify his source under applicable law, the district court must address

the merits of Range’s defamation claims. Range asserts that Minnesota has yet to recognize

a First Amendment qualified journalist’s privilege and that neither common law nor the act

requires a person suing for defamation to establish a prima face case before being allowed

to compel disclosure of a journalist’s source.

This court has stood at this intersection before. In a factually similar defamation

case brought against a media outlet, this court interpreted the act “in light of the

a privilege. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating that a
reviewing court generally addresses “only those issues that the record shows were
presented to and considered by the [district] court in deciding the matter before it”)
(quotation omitted)).

6
constitutional imperatives of the reporter’s qualified privilege” and set forth a balancing

test based on both the First Amendment and the act for courts to address in deciding

whether to order disclosure of a journalist’s confidential source. Bauer v. Gannett Co.

(KARE 11), 557 N.W.2d 608, 611-12 (Minn. App. 1997), overruled by Weinberger v.

Maplewood Review, 668 N.W.2d 667, 675 n.9 (Minn. 2003). But five years later, in

Weinberger, the Minnesota Supreme Court articulated a narrower construction of the

statutory privilege in the act, albeit in a different factual context. Weinberger, 668 N.W.2d

at 671-75. Following that decision, in In re Charges of Unprofessional Conduct Involving

File No. 17139, 720 N.W.2d 807, 817 (Minn. 2006), the supreme court assumed, without

deciding, that a First Amendment journalist’s privilege exists.

We address the issues in this case—whether the district court erred by ordering

disclosure of McEnroe’s confidential source—within the framework of the act. The

interpretation of that statute presents a legal issue, which this court reviews de novo.

Weinberger, 668 N.W.2d at 671-72. We analyze the framework of the defamation

exception by recognizing the relevance and probable-cause requirements of the act as

interpreted in Weinberger and in light of Minnesota precedent addressing the intersection

between defamation law and the First Amendment. Because our analysis in that regard is

dispositive, we do not reach the issues of whether a First Amendment or common-law

privilege exists. But because of the close relationship between those issues, a discussion

of the caselaw on First Amendment and common-law privileges informs our analysis of

the statutory issue.

7
 Based on this analysis, we conclude that Minnesota Statutes section 595.025

requires an affirmative showing, with concrete evidence, that disclosure of the source will

lead to persuasive evidence on the elements of a defamation claim. District courts, when

conducting this analysis, must necessarily review the merits of the defamation claim, but

will not, as McEnroe proposes, impose a prima-facie-case requirement. Here, because

Range failed to demonstrate that disclosing the identity of McEnroe’s source will lead to

persuasive evidence on the issues of falsity and malice, we reverse the district court’s order

requiring disclosure of the confidential source.

I. The standards for ordering disclosure of a confidential source under the act
require an affirmative demonstration that the identity of the source will lead
to persuasive evidence of defamation.

To determine the showing necessary before a court should order disclosure of a

confidential source, we first address the legal backdrop of the act. Next we examine the

act itself. Finally, we move to the Minnesota decisions interpreting the act and addressing

disclosures in the context of a First Amendment privilege. We conclude, after this review,

that the act’s relevance and probable-cause requirements require an affirmative

demonstration that the identity of a source will lead to persuasive evidence of defamation

before disclosure may be ordered.

Almost sixty years of debate over whether the First Amendment of the Constitution

requires that journalists be permitted to protect sources has not led to a uniform answer. 5

5
In Garland v. Torre, the Second Circuit addressed the First Amendment claim of a right
to protect a journalist’s sources against the need for discovery and concluded that
consideration of a journalist’s privilege must take into account the public interest in a fair
administration of justice. 259 F.2d 545, 548-49 (2d Cir. 1958).

8
In New York Times Co. v. Sullivan, the Supreme Court provided a definitive ruling in a

related matter, holding that in cases involving the defamation of public officials or

figures—or where the communication is a matter of public concern—the First Amendment

limits common-law defamation liability. 376 U.S. 254, 84 S. Ct. 710 (1964). It requires a

plaintiff who is a public official or figure to prove that the defendant published a false

statement of fact with actual malice and that proof of malice must be made by clear and

convincing evidence. Id. at 279-80, 285-86, 84 S. Ct. at 726, 729. But the issue of whether,

in attempting to furnish that proof, a party may compel a reporter to name a source, remains

without a uniform answer.

In 1972, the United States Supreme Court addressed, but did not resolve, this issue

in Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646 (1972). In Branzburg, which arose

from a set of three cases in which prosecutors had subpoenaed journalists to appear before

grand juries, a divided Supreme Court declined to adopt a broad testimonial privilege for

reporters and refused to excuse them from the obligation to appear and testify before grand

juries. Id. at 690-91, 92 S. Ct. at 2661. The opinion did state that the First Amendment

affords “some protection” for newsgathering. Id. at 681, 92 S. Ct. at 2656.6 But while

Branzburg made it clear that there were First Amendment dimensions to consider before

6
The fifth and deciding vote came from Justice Powell, who wrote a concurring opinion,
which more clearly states that reporters are not without constitutional rights with respect
to safeguarding their sources. Id. at 709, 92 S. Ct. at 2671 (Powell, J., concurring).
Journalists should have access to move the court for a protective order, Powell wrote, and
courts should balance the constitutional and societal interests on a case-by-case basis. Id.
at 710, 92 S. Ct. at 2671.

9
compelling disclosure of sources, it stopped far short of adopting a constitutional privilege

that protected sources.

Since Branzburg, state and federal appellate courts have been divided over the

express recognition of a journalist’s privilege that would protect the confidentiality of

sources in a myriad of situations, from the defamation context to subpoenaing reporters for

grand jury testimony. Many courts have recognized such a First Amendment reporter’s

privilege. See Shoen v. Shoen, 5 F.3d 1289, 1292 n.5 (9th Cir. 1993) (listing federal cases

recognizing journalist’s privilege); In re Contempt of Wright, 700 P.2d 40, 43 (Idaho 1985)

(listing state cases addressing consideration of a journalist’s privilege on a case-by-case

basis). Under one test articulated by the Eighth Circuit Court of Appeals, a plaintiff seeking

disclosure of a journalist’s source in a defamation case under the First Amendment must

make “a concrete demonstration that the identity of [the] source[] will lead to persuasive

evidence on the issue of malice.” Cervantes v. Time, Inc., 464 F.2d 986, 994 (8th Cir.

1972). Minnesota has addressed, but not explicitly adopted, a journalist’s privilege. In re

Charges of Unprofessional Conduct, 720 N.W.2d at 817-18.

While over half a century of debate has not resolved the journalist’s-privilege

question, it has engendered at least 26 state shield laws, which provide varying amounts of

protection to journalistic sources. See 23 Kenneth W. Graham, Jr., Federal Practice &

Procedure § 5426 (1st ed. Supp. 2016) (listing state reporter’s-privilege statutes). Shortly

after Branzburg was decided, the Minnesota legislature enacted one of those laws: the Free

Flow of Information Act. See 1973 Minn. Laws ch. 735, at 2201-02. As the Minnesota

Supreme Court has noted, “it is clear that the Act was a reaction to the Branzburg decision,

10
and was intended to provide additional protection to reporters and their employers against

subpoenas from litigating parties.” State v. Turner, 550 N.W.2d 622, 631 (Minn. 1996).

Considering the act in the defamation context, this court explained that the legislature

sought to mediate the tension between the important values of promoting effective

newsgathering and the right of individuals to protect and defend their reputations. Bauer,

557 N.W.2d at 610. With both these values in mind, the legislature stated that the purpose

of the act was to confer on journalists a “substantial privilege not to reveal sources.” Minn.

Stat. § 595.022. The public-policy provision of the act provides:

In order to protect the public interest and the free flow of
information, the news media should have the benefit of a
substantial privilege not to reveal sources of information or to
disclose unpublished information. To this end, the freedom of
press requires protection of the confidential relationship
between the news gatherer and the source of information. The
purpose of section[s] 595.021 to 595.025 is to insure and
perpetuate, consistent with the public interest, the confidential
relationship between the news media and its sources.

Id. (emphasis added).

While the act affords news media a substantial privilege not to disclose sources, it

also carves out certain exceptions to this journalist’s privilege. See Minn. Stat. §§ 595.024,

.025. One exception applies to disclosure of sources in defamation cases if certain

conditions have been met. Minn. Stat. § 595.025. Specifically, a court may order

disclosure of a confidential source if “the person seeking disclosure can demonstrate that

the identity of the source will lead to relevant evidence on the issue of actual malice.” Id.,

subd. 1. In addition, to meet disclosure requirements, there must exist “probable cause to

believe that the source has information clearly relevant to the issue of defamation,” and it

11
must be shown that “the information cannot be obtained by any alternative means or

remedy less destructive of [F]irst [A]mendment rights.” Id., subd. 2(a), (b).

In order to determine what showing is necessary to “demonstrate that the identity of

the source will lead to relevant evidence” and establish “probable cause” to justify

disclosure of a source, we look to previous interpretations of the defamation exception in

the act. In 1997, this court interpreted the statutory defamation exception in light of a First

Amendment journalist’s privilege. Bauer, 557 N.W.2d at 611. In Bauer, this court

articulated a balancing test with five factors for addressing when an individual’s privacy

interest, as expressed in defamation law, outweighs society’s interest in preserving the free

flow of information embodied in the journalist’s privilege. Id. at 611-12. One of those

factors involved examining whether the plaintiff has made out a prima facie case of

defamation by showing the falsity of the alleged defamatory statement. Id. at 612.

In 2003, however, the Minnesota Supreme Court took a narrower view of the

statutory privilege in Weinberger, 668 N.W.2d at 671-75. In that case, the supreme court

affirmed an order requiring disclosure of a newspaper’s confidential sources, including

school-district employees who had provided information for an article containing allegedly

defamatory statements about a high school football coach. Weinberger, 668 N.W.2d at

669-71, 675. The supreme court interpreted the “relevant evidence” portion of the statute

to require an affirmative showing of relevance consistent with the standard in the

Minnesota Rules of Evidence: evidence that has “‘any tendency to make the existence of

any fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.’” Id. at 673 (emphasis omitted) (quoting

12
Minn. R. Evid. 401); see Minn. Stat. § 595.025, subd. 1. The court also analyzed the

probable-cause portion of the statute, defining “probable cause,” in the civil context, as “a

bona fide belief in the existence of the facts essential under the law for the action and such

as would warrant a [person] of ordinary caution, prudence, and judgment, under the

circumstances, in entertaining it.” Weinberger, 668 N.W.2d at 674 (emphasis omitted)

(quotation omitted); see Minn. Stat. § 595.025, subd. 2(a). The Weinberger court

emphasized that it had not been asked to rule on the issue of a First Amendment journalists’

privilege and that, to the extent that Bauer was inconsistent with its analysis, Bauer was

overruled. Weinberger, 668 N.W.2d at 671 nn.4-5, 675 n.9. But it did not explicitly state

which of the five factors identified in the Bauer balancing test remained intact. We note

that both parties rely on some or all of the Bauer factors in analyzing whether McEnroe

must disclose his confidential source.

Three years later, without reference to Bauer, the supreme court referred to a First

Amendment journalist’s privilege in an attorney-discipline case. In re Charges of

Unprofessional Conduct, 720 N.W.2d at 815-17. The attorney, who had been charged by

the Director of the Office of Lawyers Professional Responsibility with knowingly or

recklessly making false statements about the integrity of a judge, argued that he had a

qualified journalist’s privilege not to disclose the sources who provided the information his

statement was based on. Id. at 810-11, 815. The supreme court indicated that it was

reluctant to articulate a new principle of constitutional law without adequate briefing,

observing that the statutory privilege, which had not been asserted, was available to protect

against compelled disclosure of sources. Id. at 818. But the supreme court also cited

13
Branzburg and noted that a majority of federal courts had held that a qualified journalist’s

privilege existed under the First Amendment. Id. at 816. It therefore “[a]ssum[ed], without

deciding,” that such a privilege existed and quoted Cervantes, stating that the party seeking

disclosure would be required to make a “‘concrete demonstration that the identity of [the

applicable] news sources will lead to persuasive evidence on the issue of malice.’” Id. at

817 (quoting Cervantes, 464 F.2d at 994).

After examination of the act and its subsequent interpretation in Bauer, Weinberger

and In re Charges of Unprofessional Conduct, we conclude that a party seeking disclosure

of a journalist’s confidential source must make an affirmative showing on the statutory

requirements. See Minn. Stat. § 595.025; Weinberger, 668 N.W.2d at 673-75. That

affirmative showing is called for by the act’s requirements that the party demonstrate that

the source’s identity will lead to relevant evidence and establish probable cause to believe

that the source has clearly relevant information. See Minn. Stat. § 595.025, subds. 1, 2;

Weinberger, 668 N.W.2d at 674 (defining probable cause).

Although the statutory language and its interpretation in Weinberger make it clear

that a party must make an affirmative showing, the parameters and scope of that showing

evolved with In re Charges of Unprofessional Conduct. In that case, the supreme court

concluded that the journalist’s privilege had been overcome under the standard in

Cervantes. In re Charges of Unprofessional Conduct, 720 N.W.2d at 817. Accordingly,

in order to compel disclosure of a confidential source, a plaintiff must affirmatively show

that disclosure of the source will lead to persuasive evidence on the elements of defamation.

Id. Such a showing recognizes the journalist’s First Amendment right to protect sources,

14
the plaintiff’s interest in privacy, and the public interest in the fair administration of justice.

Torre, 259 F.2d at 548-49. The showing is consistent with Weinberger’s focus on

establishing both relevance and probable cause. In addressing the probable-cause section

of the act, the supreme court stated that there must be a bona fide belief, as measured by “a

[person] of ordinary caution, prudence and judgment” in the existence of the necessary

facts. Weinberger, 668 N.W.2d at 674 (quotation omitted).

McEnroe argues that such a standard necessarily should go further and require the

plaintiff to demonstrate a prima facie case of defamation in order to compel disclosure.

We disagree. McEnroe’s argument relies on this factor as set forth in caselaw from other

jurisdictions recognizing a First Amendment reporter’s privilege. See, e.g., Bruno &

Stillman, Inc. v. Globe Newspaper Co., 633 N.W.2d 583, 597 (1st Cir. 1980) (stating that

“plaintiff should show that it can establish jury issues on the essential element of its case

not the subject of the contested discovery”). This court initially held in Weinberger that a

prima facie case was required. Weinberger v. Maplewood Review, 648 N.W.2d 249, 256-

57 (Minn. App. 2002), rev’d, 668 N.W.2d 667 (Minn. 2003). But the supreme court on

review clearly stated that, for the statutory defamation exception to apply, a party need only

establish that the identity of the source “will lead to relevant evidence on the issue of actual

malice” and that probable cause exists “to believe that the source has information clearly

relevant” to defamation. Weinberger, 668 N.W.2d at 673 (quotation omitted). We

therefore decline to conclude that a prima facie case is required for disclosure.

Nonetheless, when examining whether a party has affirmatively shown that

disclosure of the source will lead to persuasive evidence, we conclude that a district court

15
should objectively assess the proffered evidence. See In re Charges of Unprofessional

Conduct, 720 N.W.2d at 817. This is consistent with the supreme court’s more recent

observations, id., and with Weinberger’s interpretation of probable cause. Weinberger,

668 N.W.2d at 674. It is also consistent with longstanding Minnesota law governing

establishment of civil probable cause: it requires the presentation of facts and

circumstances demonstrating that the action is legal, proper, and just. Id.; Nelson v. Int’l

Harvester Co. of Am., 117 Minn. 298, 301, 135 N.W. 808, 810 (1912).

Finally, having the district court objectively assess the evidence reflects the act’s

stated concern with protecting the public interest and the free flow of information. Minn.

Stat. § 595.022. It fulfills the legislature’s public commitment to confer on journalists a

“substantial privilege” not to reveal sources. Id.

II. Range failed to demonstrate that disclosing the source’s identity would lead to
persuasive evidence.

To examine whether the evidence produced by Range met the standard for

persuasive evidence on the defamation elements of falsity and malice, we briefly review

those elements. Next we consider Range’s evidence connecting the confidential source

with persuasive evidence of falsity or malice. Based on this review we conclude that, under

the standards of the act, Range has failed to show that disclosing the source’s identity would

lead to persuasive evidence on the issues of falsity and malice. See Minn. Stat. § 595.025.

subds. 1, 2.7

7
The parties do not contest that the third statutory requirement is met: that the source’s
information cannot be obtained by alternative means or by a remedy that is less destructive
of First Amendment rights. See id., subd. 3.

16
 To succeed on its claim of defamation, Range is required to prove: (1) a false and

defamatory statement about the plaintiff; (2) in an unprivileged publication to a third party;

(3) that harmed the plaintiff’s reputation in the community. Weinberger, 668 N.W.2d at

673. Falsity in a defamation action means that the alleged statement is not “substantially

true,” McKee v. Laurion, 825 N.W.2d 725, 730 (Minn. 2013). Minor inaccuracies of

expression or detail are immaterial. Air Wis. Airlines Corp. v. Hoeper, 134 S. Ct. 852, 861

(2014).

In addition, because it is undisputed that Range is a limited-purpose public figure

for purposes of this action, Range is required to prove by clear and convincing evidence

that the alleged defamatory statements were made with actual malice. N.Y. Times, 376

U.S. at 279-80, 285-86, 84 S. Ct. at 726, 729; Gertz v. Robert Welch, Inc., 418 U.S. 323,

336-37, 94 S. Ct. 2997, 3005 (1974). A statement is made with actual malice when it is

made with the knowledge that it is false or with reckless disregard of whether it is false or

not. N.Y. Times, 376 U.S. at 279-80, 84 S. Ct. at 726. “[R]eckless disregard” means that

the defendant made the statement “while subjectively believing that the statement is

probably false.” Chafoulias v. Peterson, 668 N.W.2d 642, 655 (Minn. 2003) (quotation

omitted).

Range points to two possible connections between the confidential source and

relevant evidence of falsity or actual malice. First, Range argues that McEnroe’s claim

that all his information for the article came from the report was inconsistent with facts

stated in the article. For example, the MDH report never stated that the resident was

“unconscious” and “barely alive,” as McEnroe reported. Rather, the MDH report stated

17
the resident “was found unresponsive.” Range sought to learn where this “other

information” came from and posited that it could have come from the confidential source.

It was on this basis—that the news article “arguably deviate[s] significantly” from the

report—that the district court ordered disclosure of the source. The second connection,

argued on appeal, is that the source will be able to provide evidence about how the

preliminary MDH report given to McEnroe differed from the public report released several

days later.

We are not convinced that these justifications demonstrate that the identity of the

source will lead to persuasive evidence of falsity or actual malice. With regard to the first

argument, there is no evidence that McEnroe discussed anything of substance with the

confidential source. McEnroe states that he relied only on the report and did not receive

other oral information from the source who provided him with the report. We conclude

that Range has provided only speculation that disclosing the identity of the source would

lead to information relevant to proving or disproving the element of actual malice. See

Minn. Stat. § 595.025, subd. 1 (stating required demonstration that the source’s identity

will lead to relevant evidence on actual malice). We agree with the district court that the

arguable deviations between the news article and the MDH report may be relevant to

proving actual malice.8 But the argument that McEnroe’s embellishment of the report,

without additional information, is evidence of actual malice does not need verification from

the source. McEnroe admitted exactly this evidence—that he based his article only on the

8
We do not reach the issue of whether such a deviation is sufficient by itself to prove actual
malice by clear and convincing evidence.

18
report and his research and general knowledge—not on additional information from the

source.

Nor do we find persuasive the argument that the source could provide evidence on

the difference between the draft report shared with McEnroe and the publicly released

version. This argument also is based on conjecture. As counsel for Range clarified at oral

argument, Range’s claim is based on McEnroe’s conversation with the source, not on any

differences between the copy provided McEnroe and the report publicly released a few

days later.

Range argues that Weinberger supports the district court order compelling

disclosure. But Weinberger involved a situation in which certain named defendants were

believed to be the sources of the alleged defamatory statements, so that the statutory

requirements of relevance and probable cause were unquestionably met. See 668 N.W.2d

at 674. In addition, following Weinberger, the supreme court recognized a showing of

persuasive evidence on the elements of defamation as part of the district court’s assessment

in deciding whether to order disclosure. In re Charges of Unprofessional Conduct, 720

N.W.2d at 817.

Finally, Range argues that, short of ordering disclosure of the source, we are letting

McEnroe simply say “you just have to trust me on that” with regard to important issues in

the case. But the act puts the burden on Range, not McEnroe, to demonstrate that the source

has relevant information and to establish probable cause that this information is clearly

relevant to falsity or actual malice. Minn. Stat. § 595.025, subds. 1, 2(a). While this

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demonstration need not rise to the level of establishing a prima facie case,9 it does require

an affirmative showing. And the burden of that showing falls on Range, not McEnroe.

Range has not made the affirmative showing required to merit an exception to the

act’s general rule that a court may not require a reporter to disclose confidential sources.

See Minn. Stat. § 595.023 (2014) (stating that general rule). It has neither demonstrated

that the source’s identity will lead to relevant evidence nor established probable cause that

the source has information clearly relevant to the issues of defamation. Both showings

require concrete evidence that discovery of the source will lead to persuasive evidence.

And while McEnroe may have embellished the report in this article, because there has been

no showing that the source supplied him with information other than the report, there has

been no demonstration that learning the source’s identity would lead to persuasive evidence

on the issues of falsity or malice.

We conclude that the district court erred by determining that the requirements of

Minnesota Statutes section 595.025 were met and by ordering disclosure of McEnroe’s

confidential source. Because we have concluded that the district court erred by ordering

disclosure, we need not address McEnroe’s alternative argument that the district court

9
Range argues that, in fact, it did establish a prima facie case based on the subsequent
summary-judgment decision on the three phrases and that this issue in the case is moot.
We disagree. A matter may be dismissed as moot when “an event occurs that makes a
decision on the merits unnecessary or an award of effective relief impossible.” Limmer v.
Swanson, 806 N.W.2d 838, 839 (Minn. 2011) (quotation omitted). Although the district
court denied summary judgment on Range’s defamation claim, McEnroe is entitled to
review of the district court’s decision to compel disclosure of his confidential source, and
a favorable outcome would provide him with effective relief. The district court’s
subsequent summary-judgment decision does not moot the issue of whether the district
court correctly applied the act to compel disclosure.

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improperly fashioned its discovery order to allow opposing counsel to view the identity of

the source.

DECISION

The statutory requirements of relevance and probable cause under the defamation

exception to the Minnesota Free Flow of Information Act require the district court to

consider whether the plaintiff has shown that disclosure of the reporter’s confidential

source would lead to persuasive evidence on the issues of falsity and malice. Because the

district court erred by concluding that the statutory standards for disclosure were met, we

reverse the district court’s order requiring disclosure of McEnroe’s confidential source.

Reversed.

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