Richard Lowell Nygaard

“ Until the Supreme Court decides a case in which a majority opinion of the Court utilizes a clear test to analyze a religious display, we are left with fact-specific inquiries that focus on the size, shape, and inferential message delivered by displays with religious elements, leaving almost any display that has a religious symbol in it open to challenge and any such display that has secular elements, no matter how trivial, open to judicial approval. ”

“ Nonetheless, we have recognized that when a journalist, in the course of gathering the news, acquires facts that become a target of discovery, a qualified privilege against compelled disclosure appertains. ”

“ No bright lines of demarcation have been drawn between religious "establishment" and simple display, and perhaps none of us is capable of accurately drawing such a line given the state of the case-law. I am afraid that the shifting majorities and fact-specific opinions of the Supreme Court in Lynch and Allegheny County provide only a precarious analytical framework for both the public and we inferior federal courts to apply in determining the exact location of the line of demarcation. ”

“ Rather than the seasonal, "winter wonderland" scene in Lynch, Jersey City erected a display that a reasonable observer would interpret as having three symbolic focal points: the creche, the menorah, and the Christmas tree. ”

“ In contrast, a person who "gathers information for personal reasons, unrelated to dissemination of information to the public, will not be deterred from undertaking his search simply by rules which permit discovery of that information in a later civil proceeding." Id. In other words, von Bulow holds that the purpose of the journalist's privilege was not solely to protect newspaper or television reporters, but to protect the activity of "investigative reporting." ”

“ Following the Supreme Court's decisions in Lynch and Allegheny County, I conclude that Jersey City's modified display resulted in an unconstitutional establishment of religion.
A. Lynch First, our display is unlike the display that the Supreme Court allowed in Lynch. The majority sees "no reasonable basis," other than the different locations of the displays, "for distinguishing the modified Jersey City display from the display upheld in Lynch." Majority Opinion at 21. I believe that this analysis of the display fails to adequately credit the different contexts of the two displays. ”

“ Based on the rationale of Baker, the court concluded that "the critical question in determining if a person falls within the class of persons protected by the journalist's privilege is whether the person, at the inception of the investigatory process, had the intent to disseminate to the public the information obtained through the investigation." ”

“ I am not sure I agree with that because when a reasonable observer sees a menorah what would she or he think of except the miracle of the oil, or of the holy candelabrum in the Jewish Temple, and of the Jewish Festival of Lights. Moreover, although the religious impact of a menorah standing alone was debatable, at least by the members of the Supreme court, we have found that the combination of a menorah with a creche communicates a clearly sectarian message. ”

“ The district court for the District of Connecticut will ultimately rule on the merits, and an appeal from its final judgment will be heard by the Court of Appeals for the Second Circuit. Other courts have recognized an "exception to the nonfinality of discovery orders where a district court, other than the district court before which the main action is pending, issues an order denying discovery against a nonparty." ”

“ We have the duty not only to review cases and point out error, but also to provide guidance. We cannot ask others to respect the integrity of our decisions when we ourselves do not; but instead evade the reasoning of a prior panel in the same case. ”

“ We have found few cases that discuss who, beyond those employed by the traditional media, has status to raise the journalist's privilege. Courts have previously permitted documentary film-makers to invoke the protections of the journalist's privilege. ”

“ Madden's activities in this case cannot be considered "reporting," let alone "investigative reporting." By his own admission, he is an entertainer, not a reporter, disseminating hype, not news. Although Madden proclaims himself to be "Pro Wrestling's only real journalist," hyperbolic self-proclamation will not suffice as proof that an individual is a journalist. Moreover, the record reveals that all of Madden's information was given to him directly by WCW executives. Madden's deposition testimony acknowledges that WCW employees were his sole source of information for his commentaries. ”

“ The dominant element of each side of the display is a religious symbol. Looking at the display as a whole, rather than focusing on only those elements that were also present in the constitutional displays in Lynch or Allegheny County, it seems to me that the dominant message of the display is an endorsement of religion. ”

“ He states that "with the WCW 900 number, I say things tongue [in] cheek. I say things for satire value, I say things to be funny, and sometimes I will take something like that and use it for humor value." ”

“ This clearly contrasts the Allegheny County display with the Jersey City display in which, on both sides of the display, the "predominant" element was sectarian.
Although not determinative, a display's location informs the constitutional analysis. As Justice O'Connor stated in Allegheny County, "the display of religious symbols in public areas of core government buildings runs a special risk of 'making religion relevant, in reality or in public perception, to status in the political community.'" 492 U.S. at 626, 109 S.C.t. ”

“ We believe, however, that the district court read the von Bulow decision too expansively and in doing so elided the requirement that the individual be engaged in the activity of news gathering or investigative reporting. The district court believed that because Madden "sought, gathered or received" materials from the WCW with the intention of disseminating that material, he was a journalist. We conclude that more is required to claim the privilege. ”