Ketchum

CHARLESTON – Cabell Circuit Judge Jane Hustead exceeded her authority when she ordered the Lincoln Journal to reveal news sources, the Supreme Court of Appeals has ruled.

The Justices on May 2 ruled Hustead must hold a hearing before she decides whether Journal owners Thomas Robinson and Ron Gregory must disclose sources to Timothy Butcher and Bobby Adkins.

Butcher and Adkins sued the Journal in 2008, claiming articles on the Democratic primary election defamed them, disclosed private facts, and inflicted distress.

Butcher's brother, Dan Butcher, owned a rival newspaper, the Lincoln Standard.

Butcher and Adkins filed a similar suit in federal court, where a judge stayed proceedings pending resolution of the Cabell County case.

In Cabell County, Butcher and Adkins moved to compel disclosure of the Journal's sources.

Robinson and Gregory answered that Butcher and Adkins must make a preliminary showing that the articles were substantially false before disclosure would be appropriate.

Hustead held a hearing last year and found the motion premature because Butcher and Adkins hadn't exhausted other sources of information.

Butcher and Adkins issued subpoenas to Lincoln County Prosecuting Attorney Jackie Stevens, the Secretary of State, and the U.S. attorney in Charleston.

They didn't discover the identity of any source, so they renewed their motion with Hustead.

She held another hearing last July, and she granted disclosure in September.

The Journal petitioned the Justices for a writ of prohibition, and Hustead stayed proceedings.

Now she must lift the stay and take a closer look.

In an unsigned opinion, the Justices found the articles were principally based on statements of prosecutor Stevens and complaints that were filed with his office.

They wrote that according to Robinson and Gregory, individuals corroborated the articles but spoke anonymously out of fear of reprisal.

"They contend that none of the articles is based solely on information from an undisclosed source," they wrote.

They wrote that Gregory received copies of two criminal complaints.

"On each occasion, the complaint was left in an envelope on Mr. Gregory's desk, and was already redacted to 'white out' the signature line of the complaint," they wrote.

He wasn't present on either occasion, they wrote.

They wrote that Hustead failed to identify each of the specific articles that contained allegedly defamatory information.

"Respondents have referenced various articles, many of which simply refer to previous articles for source information," they wrote.

They called for separate analysis of each article, to provide "the necessary specific tangible information needed to assess any appeal."

Justice Menis Ketchum concurred "whole heartedly," writing that "speech like that used by the Lincoln Journal is entitled to special protection in the courts."

He quoted a U.S. Supreme Court decision from 1964, New York Times v. Sullivan, finding debate on matters of public concern should be uninhibited, robust, and wide open.

He quoted another decision from 1964, Garrison v. Louisiana, finding speech on public affairs is the essence of self government.

He quoted a decision from 1983, Connick v. Myers, finding speech on public issues occupies the highest rung of the hierarchy of First Amendment values.

He quoted a March 2 decision, Snyder v. Phelps, finding the nation has chosen "to protect even hurtful speech on public issues to ensure that we do not stifle public debate."

David Barnette, Pamela Tarr, and Vivian Basdekis, all of Jackson Kelly in Charleston, represented Robinson and Gregory.

Thomas Scarr and Gary Matthews, both of Jenkins Fenstermaker in Huntington, represented Butcher and Adkins.

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