Strafford County Superior Court judge Steven Houran ruled on April 3, 2018, that the state cannot compel Early to hand over the unpublished interview:
While the court recognizes that Mr. Flynn is a non-confidential source and sought out the interview, the court finds that this fact alone does not weigh in favor of disclosure, particularly given the court's finding of the potential chilling effect of compelling reporters and press entities to disclose unpublished newsgathering materials. The court recognizes the strong public interest in prosecuting those accused of perpetrating serious crimes such as the offenses of which Mr. Flynn stands accused, but there is nothing that indicates that the State's interest in prosecuting Mr. Flynn will be disadvantaged if it does not receive the unpublished material. Thus, the court finds that the distinction between Foster's interests in its unpublished materials, grounded in its constitutional right, outweighs the State's interest in obtaining the additional information it seeks to aid in its prosecution of Mr. Flynn.
For these reasons, the court finds that the State's interest in obtaining these materials does not outweigh Foster's qualified privilege in protecting its non-confidential but unpublished material.
Order on the State's Motion to Compel Non-Confidential Work Product
Foster's Daily Democrat asked Barth, the prosecutor, and Sullivan, who represented the paper, for their reactions to the ruling:
When reached for comment Tuesday, Barth described Houran’s ruling as both “poorly and wrongly decided” given the facts and arguments presented by both sides. He also questioned how the First Amendment affords Foster’s the right to withhold the “important and relevant information” Flynn provided to Early. Barth likened Foster’s withholding of information to “functionally protecting a rapist.”
“I’m wondering how Foster’s can and will look a victim and her family in their eyes (when the paper is) passively protecting information that will be useful in prosecuting her rapist,” said Barth.
In response, Sullivan described Barth’s assertion as “absurd.”
“The job of the government is to prosecute the criminal case,” he said. “The job of the press is to report on that prosecution, not to participate as an arm of the government.”
Judge sides with Foster’s in jailhouse interview case (Foster's Daily Democrat)
On Jan. 29, 2018, the Strafford County Attorney's Office filed a motion to compel the Foster's Daily Democrat newspaper to turn over an unpublished jailhouse interview that one of its reporters, Brian Early, had conducted with Joshua Flynn, who is on trial for sexual assault.
The "Motion to Compel Non-Confidential Work Product" asks the Strafford County Superior Court to order Foster's to turn over "all recordings, notes, memoranda, drafts, documents, and any material memorizing its interview with the defendant, Joshua Flynn."
According to Foster's, Early conducted a interview with Flynn at the Strafford County House of Corrections on June 15, 2017, but the paper never published the interview.
New Hampshire's state constitution includes a "shield law," a provision that protects journalists from being forced to testify about or disclose certain information related to their reporting.
In the motion to compel, Assistant County Attorney Joachim Barth argues that the shield law does not apply to Early's interview with Flynn, because the law is intended to allow reporters to protect the identities of their confidential sources and Flynn's identity is already public.
"At the outset, under the facts here, Mr. Flynn is not a confidential source," Barth writes in the motion. "He disclosed his intention to conduct an interview with Foster's both on recorded telephone conversations and in monitored emails; and, Foster's reporter Brian Early disclosed to undersigned counsel both his intention to conduct an interview with Mr. Flynn, and then confirmed afterwards that he had done so. Moreover, both parties disclosed that the interview concerned the sexual assaults at issue."
Barth wrote in the motion that the prosecution wants Early to turn over material related to the unpublished interview with Flynn so that it can learn in advance what Flynn plans to say at the trial.
"While Mr. Flynn has previously confessed to the sexual assaults, his telephone and email conversations concerning the Foster's interview indicate that he now attempts to advance a new, exculpatory account of events," Barth writes, adding that "there is a reasonable possibility that obtaining the defendant's factual claims of a defense will afford the State an opportunity to prepare and offer evidence showing such claims to be demonstrably false."
On Feb. 7, 2018, Greg Sullivan, the attorney representing Foster's, filed an opposition to the prosecution's motion to compel. Sullivan argues that New Hampshire's shield law protects journalists from being forced to reveal any unpublished information, not just the identities of their confidential sources, in court.
"Courts have long recognized that a government that requires the press to produce to it unpublished materials degrades the autonomy and independence needed by the press to fulfill its role in educating and informing the citizenry," Sullivan writes in the opposition.