dissenting.
I1 read today's opinion as recognizing upon constitutional grounds a qualified privilege protecting news reporters from disclosing evidence they possess which is relevant to the determination of a civil or criminal trial unless it is shown:
(a) that the information is clearly material and relevant;
(b) that there is a "compelling need" for the evidence; and
(c) that the party seeking the evidence has exhausted all other sources for the same information.
I dissent to the view that the First Amendment creates any such privilege.
Initially, a distinction recognized by the majority should be noted. The cases deal*152ing with a privilege to protect the press quickly divide themselves into those concerning information gathered by the press and those concerning the sources of that information.
As to the latter category, Indiana as a matter of state statutory law has provided a privilege against disclosure. IC 84-8-5-1. As I read that statute, its application is plainly and clearly limited to nondisclosure of the sources of a reporter's information. It has no application to the present proceeding.
The Supreme Court considered whether the constitution afforded privilege in Branzburg v. Hayes (1972), 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626.
Some uncertainty is created by Justice Powell's concurring opinion written "to emphasize the limited nature of the Court's holding." His concurrence stresses that "harassment" of news reporters will not be tolerated. 408 U.S. at 710-11, 92 S.Ct. at 2671-72. Also, the opinion does not speak more broadly than the criminal prosecution context which was before the court.
The plurality opinion authored by Justice White considers, in the context of two grand jury investigations concerning potential criminal prosecutions, whether the First Amendment affords a privilege to newsmen (a) concerning information they possess about the commission of a crime, or (b) concerning the sources of that information.
As the Court recognized, a more appealing argument can be made for the protection of a newsman's sources. Yet the plurality rejected a constitutional privilege phrased like the one this court announces today as to the disclosure of such source information. As to information possessed by the reporter based upon what the reporter had witnessed, the Court determined that no substantial federal question was even presented. 408 U.S. at 698.
It should hardly be necessary to state my indorsement of freedom of the press, or that the legislature may quite properly enact legislation such as IC 84-8-5-1. I deem it, however, a principle of equal importance to the preservation of our freedom and system of government that the general rule should be that "the public ... has a right to every man's evidence." 408 U.S. at 689, 92 S.Ct. at 2661.
To impose upon newsgatherers the obligation to produce relevant and material evidence which they possess, subject to the rules of procedure and the protections they afford, imposes no greater burden on the press than the law imposes on policemen, physicians, or the public in general. Thus, it is no more than an "incidental burdening" (408 U.S. at 683) that does not impinge upon First Amendment rights.
Here there was no suggestion that the photographs were not relevant and material or that the form of discovery was unduly burdensome. I would affirm the trial court.