Anthony v. Haas: Strengthening New York’s Shield Law on Alternative Sources and Waiver

I. Introduction

Anthony v. Haas, 2025 NY Slip Op 06576 (App Div 3d Dept, Nov. 26, 2025), is a significant reaffirmation and clarification of New York’s statutory reporter’s privilege under Civil Rights Law § 79‑h (the “Shield Law”). The Appellate Division, Third Department, reverses a trial court order and grants a motion by a newspaper editor to quash a subpoena seeking the identity of a municipal source.

The case arises from a local controversy in the Town of Highland, Sullivan County. After the Town suspended its constabulary—including the plaintiff, Marc Anthony—a Town Board constabulary committee generated a report criticizing the constabulary. An unredacted copy of this report reached a local newspaper, the Sullivan County Democrat, through an anonymous source, and an article followed describing certain allegations against Anthony as “substantiated” and reporting that the Department of Criminal Justice Services had no record of his handgun training. The article stated that “the [T]own has confirmed the contents of the report” but did not identify the Town source.

Anthony sued various Town-related defendants, including a defamation claim against Town Board member Kaitlin Haas, who served on the constabulary committee. His theory evolved into an allegation that Haas had been the source of the report or the confirmation that the Town “confirmed” the report, and that her conduct caused the defamatory publication.

In discovery, Anthony served a subpoena on Joseph Abraham, the managing editor of the Sullivan County Democrat, demanding his deposition and documents—including notes and texts with Haas. Abraham, invoking the Shield Law, moved to quash. The Supreme Court (Schick, J.) denied the motion in a brief oral ruling. Abraham appealed.

The Third Department reverses, enforcing the statutory protections for journalists and clarifying two key aspects of New York’s Shield Law:

The strictness of the “no alternative source” requirement under the qualified privilege for nonconfidential, unpublished information; and
The narrow circumstances under which a journalist is deemed to have waived that privilege.

Although the case is framed as a discovery dispute, it has broader consequences for civil litigants seeking to compel disclosure from the press, particularly when trying to identify government employees who speak to the media.

II. Summary of the Opinion

The court (Aarons, J.P., writing; Reynolds Fitzgerald, Ceresia, Fisher and McShan, JJ., concurring) holds:

The information plaintiff seeks from Abraham—the identity of the “unnamed Town source” who confirmed the contents of the Town’s constabulary report—is “unpublished, nonconfidential news” protected by the Shield Law’s qualified privilege (Civil Rights Law § 79‑h[c]).
To overcome this qualified privilege, the party seeking disclosure must satisfy a strict three-part test: the information must be (i) highly material and relevant, (ii) critical or necessary to the maintenance of the claim, and (iii) unobtainable from any alternative source.
Even assuming the first two prongs could be met in this case, Anthony fails the third prong. He has not shown that the information is “not obtainable from any alternative source,” because:
- Haas herself is an obvious alternative source and has been questioned; her denial—although self-serving in a defamation case—does not render the information unobtainable.
- Other Town officials may have relevant knowledge, and the plaintiff has not exhausted or detailed efforts to obtain the information from them.
The trial court erred procedurally by denying the motion to quash without making the “clear and specific findings” required by Civil Rights Law § 79‑h(c) after a hearing. Nonetheless, because the record is sufficiently developed, the Appellate Division makes its own findings and decides the privilege issue.
There was no waiver of the Shield Law privilege. Abraham’s text message saying it would be “fine” for Haas to give his phone number to her attorney does not show that he actually disclosed, or consented to disclose, the identity of the Town source.
Because the plaintiff concedes that he seeks only information about the identity of the Town source, and he has not met the statutory standard to pierce the qualified privilege, the subpoena is quashed in its entirety, with costs, and the appellate court does not reach Abraham’s remaining arguments.

III. Legal and Factual Background

A. Factual Setting

In April 2022, the Town of Highland suspended all members of its constabulary, including Anthony. The Town Board’s constabulary committee prepared a report, apparently critical of the constabulary, that was not released publicly in unredacted form.

In August 2022, the Sullivan County Democrat published an article based on an unredacted copy of the committee report supplied by an anonymous source. The article:

Described certain misconduct allegations against Anthony as “substantiated”; and
Reported that the Department of Criminal Justice Services had confirmed that Anthony had no record of handgun training; and
Stated that the “Town has confirmed the contents of the report,” without identifying the Town source.

Anthony sued, asserting several claims; at issue here is a defamation claim against Kaitlin Haas, a member of the Town Board’s constabulary committee. After motion practice, the amended complaint alleged that Haas had provided the report to the newspaper, leading to the allegedly defamatory publication.

In discovery, Anthony served a subpoena on nonparty Joseph Abraham, the managing editor of the Sullivan County Democrat. The subpoena demanded his deposition and production of “any documents in his possession that refer to plaintiff, the Town’s constabulary, or the article,” including notes and texts with Haas.

Abraham moved to quash, asserting the protection of the Shield Law. Anthony opposed, and the Supreme Court held a virtual hearing, then denied the motion in a short oral ruling that was later reduced to a one-page order incorporating the transcript.

B. The Shield Law Framework

Civil Rights Law § 79‑h, New York’s Shield Law, provides:

An absolute privilege as to confidential information and the identity of confidential sources; and
A qualified privilege as to nonconfidential, unpublished news and information.

The statute explicitly protects not only reporters who write the stories but also editors and similar professionals involved in news gathering and dissemination (see Civil Rights Law § 79‑h[f]; fn. 1 of the opinion). Thus, Abraham, as managing editor, can invoke the Shield Law even though he did not author the article himself.

Importantly, the Shield Law also addresses waiver. Under § 79‑h(g), a journalist waives the privilege only if he or she “voluntarily discloses or consents to disclosure of the specific information sought” to someone who is not otherwise entitled to the privilege. The bar for finding waiver is therefore relatively high and is limited to the precise information in dispute.

IV. Precedents and Authorities Cited

A. Foundational Shield Law and Reporter’s Privilege Cases

Matter of Holmes v. Winter, 22 NY3d 300 (2013), cert denied 572 US 1135 (2014)
The Court of Appeals in Holmes emphasized New York’s “consistent tradition” of providing “the broadest possible protection” to the press in its role of gathering and disseminating news. It upheld the Shield Law even in the face of an out-of-state grand jury subpoena.

The Third Department cites Holmes to situate this case within that longstanding policy: New York courts are to interpret the Shield Law expansively in favor of press protections.
O’Neill v. Oakgrove Construction, Inc., 71 NY2d 521 (1988)
O’Neill is the leading Court of Appeals decision articulating the three-part test now codified for overcoming the qualified privilege:
- The information must be “highly material and relevant”;
- It must be “critical or necessary” to a claim or defense; and
- It must be “not obtainable from any alternative source.”
The Anthony court tracks this framework almost verbatim and uses O’Neill again (at 530) on a preservation issue in footnote 3—holding that a plaintiff’s argument about carving out certain deposition questions is unpreserved.

B. Cases on Nonconfidential, Unpublished Information and Anonymous Sources

Guice‑Mills v. Forbes, 12 Misc 3d 852 (Sup Ct, NY County 2006)
Guice‑Mills recognized that the Shield Law extends a qualified privilege to nonconfidential, unpublished information and addressed the circumstances in which a journalist may waive that protection.

The Third Department cites Guice‑Mills:
- To describe the dual structure of absolute vs. qualified privilege; and
- In its waiver analysis, contrasting Guice‑Mills—where the journalist’s conduct did support a finding of waiver—with the much thinner record here.
Matter of Gilson v. Coburn, 106 AD3d 424 (1st Dept 2013), lv denied 21 NY3d 863 (2013)
Gilson held that the identity of a source who was not promised confidentiality is itself “unpublished, nonconfidential news” protected by the Shield Law’s qualified privilege. The information could not be compelled absent satisfaction of the three-part test, especially the “no alternative source” requirement.

In Anthony v. Haas, the Third Department relies directly on Gilson to characterize the identity of the Town source as privileged and to support its conclusion that the plaintiff failed the “alternative source” prong.
Flynn v. NYP Holdings, 235 AD2d 907 (3d Dept 1997)
Flynn confirmed that the qualified privilege applies broadly to nonconfidential, unpublished information obtained in the course of newsgathering.

The Third Department cites Flynn as an intra-departmental precedent emphasizing that even when a source is not confidential, the Shield Law still provides protection, though qualified.
Matter of CBS Inc. (Vacco), 232 AD2d 291 (1st Dept 1996)
This case, cited by the court, supports the proposition that parties must demonstrate unavailability of the information from other sources before resorting to the press. It underpins the insistence that litigants exhaust reasonable, non-press alternatives.

C. Cases on Appellate Fact-Finding and the “Self-Created” Unobtainability Principle

People v. Palmer, 20 NY3d 373 (2013) and Matter of Kathleen K. v. Daniel L., 177 AD3d 1130 (3d Dept 2019)
These cases are cited for the Appellate Division’s authority to make factual and legal findings where the trial court failed to do so, but the record is sufficiently developed. Here, the Third Department uses that authority to decide for itself whether the Shield Law standard is met.
Matter of Canning v. Revoir, 220 AD3d 16 (3d Dept 2023)
Canning is particularly important. The Third Department there stated that “unobtainability cannot be self-created.” In other words, a party cannot claim that information is unobtainable from other sources when that purported “unobtainability” results from the party’s own choices, litigation strategy, or incomplete efforts.

In Anthony v. Haas, that principle is imported into the Shield Law context: the plaintiff cannot create a sense of necessity by pointing to a defendant’s self-serving denial and then claim that the information is unavailable from anyone but the reporter.

D. Additional Authorities

Matter of Perito v. Finklestein, 51 AD3d 674 (2d Dept 2008)
This is cited only for the proposition that once a dispositive ground is found (here, the Shield Law privilege), the court need not reach remaining arguments.

V. The Court’s Legal Reasoning

A. Identifying the Nature of the Protected Information

The starting point is to classify the information sought. Anthony expressly narrowed his request on appeal: he sought “only to learn [from Abraham] the name of the ‘unnamed’ Town source that confirmed [the] report.”

Crucially:

There is no claim that this Town source was promised confidentiality.
The source’s identity has not been publicly disclosed—it is “unpublished.”

Under Gilson and the statutory text, that combination makes the information: unpublished, nonconfidential news, squarely within the Shield Law’s qualified privilege.

Thus, Abraham is protected from compelled disclosure unless Anthony satisfies each element of Civil Rights Law § 79‑h(c).

B. Statutory Requirements for Overcoming the Qualified Privilege

Section 79‑h(c) provides that disclosure “may only be ordered” when the party seeking it:

Makes a clear and specific showing that the information is:
1. Highly material and relevant;
2. Critical or necessary to a claim, defense, or proof of a material issue; and
3. Not obtainable from any alternative source.
And the court supports the disclosure order with clear and specific findings after a hearing.

The Supreme Court fell short on both fronts:

Substantively, Anthony did not meet his burden, particularly on the “alternative source” prong.
Procedurally, the trial court merely announced that it “disagree[d] with [Abraham]” and “agree[d] with [plaintiff],” concluding—without articulated reasoning—that plaintiff had met all three prongs. That is insufficient under the statute.

Although this procedural defect could itself justify reversal, the Third Department chooses to conduct the analysis itself, finding the record adequate.

C. Application of the Three-Prong Test

1. Highly Material and Relevant; Critical or Necessary

The court is careful but skeptical about the first two prongs. Anthony’s only surviving defamation claim is against Haas alone. Accordingly, the only way the identity of the Town source would be “highly relevant” and “critical or necessary” is if that source were Haas herself. Only then would the identification directly tie Haas to the confirmation that allegedly led to the defamatory publication.

If, by contrast, the anonymous Town source were someone else, that would not advance the plaintiff’s claim against Haas; indeed, it might tend to exculpate her. Thus, for purposes of the Shield Law calculus, the court states:

“Because plaintiff’s defamation claim is solely against Haas, the only information that could possibly meet the ‘highly . . . relevant’ and ‘critical or necessary’ prongs is whether or not Haas is the Town source; otherwise, the identity of the Town source is irrelevant and unnecessary to maintain plaintiff’s action against Haas.”

The court then assumes, without definitively resolving, that those two prongs could be met if the Town source were Haas. It proceeds to analyze the third prong, which it finds dispositive.

2. Not Obtainable from Any Alternative Source

This is the heart of the decision. The court holds that Anthony has failed to make the necessary “clear and specific showing” that the identity of the Town source is not obtainable from any alternative source.

The key points:

Haas herself is an alternative source. According to Anthony, Haas has already denied being the Town source. However, the court holds that the self-serving nature of that denial, particularly in a defamation context, does not transform Abraham into the only viable source. Drawing on Canning v. Revoir, the court states that “unobtainability cannot be self-created.” A litigant cannot:
- Ask the alleged tortfeasor a single question; receive a denial; and then
- Assert that the information is “unobtainable” everywhere but in the newsroom, thereby satisfying the Shield Law’s “no alternative source” requirement.
Other Town officials are potential sources of the information. The record reflects a press release stating that no one at the Town publicly released the report’s details before October 2023. The plaintiff argues that this limits potential sources. The Third Department disagrees:
- The press release “does not foreclose the possibility that someone else at the Town knows whether Haas is the Town source.”
- The plaintiff has deposed only two other Town Board members and has not detailed broader efforts to question other Town officials or employees with potentially relevant knowledge.
Insufficient efforts = failure of the statutory standard. Because plaintiff has not pursued all reasonable avenues within the Town’s own ranks, he has not shown that the information is “not obtainable from any alternative source.” The Shield Law does not permit litigants to bypass non-press witnesses and jump straight to the reporter simply because the reporter’s testimony would be convenient or more conclusive.

Accordingly, even if the first two prongs were satisfied, the third is plainly not, and the qualified privilege remains intact.

D. No Waiver of the Shield Law Privilege

Anthony argued that Abraham had waived the Shield Law protections under § 79‑h(g). The record shows that Abraham texted Haas that it would be “fine” for Haas to give his phone number to her attorney.

The Third Department rejects this argument:

There is no evidence that Abraham actually disclosed the identity of the Town source to Haas’s attorney.
There is no evidence that he consented to disclosure of the specific information sought (the identity of the Town source) to anyone else.

Without proof of actual disclosure or knowing consent to disclose that specific, protected information, waiver cannot be inferred. The court contrasts these facts with Guice‑Mills v. Forbes, where the record did establish waiver.

E. Procedural Requirements: Trial Court’s Failure to Make Findings

Civil Rights Law § 79‑h(c) not only imposes a substantive three-part test; it also requires trial courts to issue “clear and specific findings” supporting compelled disclosure orders after a hearing.

Here, the Supreme Court’s order merely stated that it denied the motion “for the reasons set forth on the record,” and the oral ruling did no more than:

Express disagreement with Abraham;
Express agreement with Anthony; and
Summarily state that the plaintiff met all three statutory prongs.

No articulated analysis was provided. The Third Department finds this to be an abuse of discretion. However, invoking its authority under cases like People v. Palmer and Matter of Kathleen K. v. Daniel L., it conducts its own de novo application of § 79‑h(c), concluding that the qualified privilege has not been overcome and the subpoena must be quashed.

F. Scope of the Subpoena and Preservation Issues

The plaintiff attempted to argue that only two of 12 proposed deposition questions would be covered by the Shield Law’s qualified privilege and that the remainder could proceed. The Third Department holds this contention unpreserved because:

Before the trial court, plaintiff’s counsel affirmatively represented that the list of questions “would reveal the name of the Town source, and nothing more.”

The court therefore takes the plaintiff at his word: all the questions seek privileged information about the Town source’s identity. On that basis, and given the failure to satisfy § 79‑h(c), the subpoena is quashed in its entirety.

VI. Complex Concepts Simplified

A. Shield Law: Absolute vs. Qualified Privilege

Absolute privilege (for confidential information and confidential sources) means: the court cannot order disclosure, no matter how important the information might be to a case.
Qualified privilege (for nonconfidential, unpublished information) means: the press is generally protected, but a court can order disclosure if the requesting party meets a very strict, three-part statutory test.

B. “Nonconfidential, Unpublished Information”

Information is:

Nonconfidential if the journalist did not promise to keep it secret as a condition of receiving it.
Unpublished if it is not in the final article or otherwise made public by the journalist.

The identity of an unnamed source, even if that source was not promised confidentiality, is generally considered “unpublished, nonconfidential news” and thus falls under the qualified privilege.

C. Motion to Quash a Subpoena

A “motion to quash” asks the court to cancel or nullify a subpoena. Here, Abraham moved to quash the subpoena requiring him to sit for a deposition and produce documents, arguing that complying would force him to break the Shield Law’s protections.

D. “Alternative Source” Requirement

To overcome the qualified privilege, the requesting party must show that the information cannot be obtained from any other reasonable source. That means:

You must try to get the information from people or documents outside the newsroom first.
The fact that these other sources are inconvenient, uncooperative, or self-interested does not automatically justify going to the press.
You cannot create your own “unobtainability” by refusing to pursue obvious alternative witnesses.

E. Waiver of the Shield Law Privilege

Waiver under Civil Rights Law § 79‑h(g) is narrow. A reporter waives the privilege only if:

The reporter voluntarily discloses the specific protected information (e.g., the name of a source); or
The reporter clearly consents to disclosure of that specific information to a third party.

General cooperation with lawyers, or sharing contact information, is not enough to amount to waiver.

F. Preservation for Appellate Review

“Preservation” refers to the principle that a party must raise an argument with sufficient specificity in the trial court to be able to rely on it on appeal. Here:

Because plaintiff’s counsel told the trial court that all proposed questions for Abraham would reveal the Town source’s identity, the plaintiff could not later argue that only a small subset of questions were privileged.

VII. Impact and Significance

A. Reinforcement of Broad Press Protections in New York

Anthony v. Haas fits squarely within New York’s jurisprudence of providing “the broadest possible protection” to the press. It:

Confirms that the Shield Law’s qualified privilege robustly protects even nonconfidential anonymous sources; and
Underscores that litigants face a high bar when seeking to compel journalists to reveal source identities.

B. Tightening the “Alternative Source” Prong

The opinion’s most notable practical effect is its insistence that:

A self-serving denial by a party-witness does not make information “unobtainable” from that witness; and
Litigants must pursue and document efforts to obtain information from all reasonable non-press sources, including other public employees and officials who may know about communications within a governmental body.

By importing the maxim from Canning v. Revoir that “unobtainability cannot be self-created,” the Third Department closes a potential loophole: parties cannot “manufacture” the Shield Law’s alternative-source requirement by conducting minimal discovery and then claiming necessity to invade the newsroom.

C. Clarifying Waiver Boundaries

The case also sends a message on waiver:

Casual or logistical communications—such as agreeing that counsel can have a phone number—do not constitute waiver absent proof of actual or authorized disclosure of the specific protected information.
Lawyers and litigants cannot bootstrap Shield Law waiver from normal attorney-journalist communications.

D. Guidance for Trial Courts

The decision stresses the procedural obligations of trial courts dealing with journalist subpoenas:

Courts must hold a proper hearing; and
They must make “clear and specific findings” on each statutory prong before compelling disclosure.

Summary oral rulings that simply “agree” with one side are inadequate. This will likely encourage more structured Shield Law hearings and more detailed written or oral findings, reinforcing the statutory protections in practice.

E. Implications for Defamation and Government-Source Litigation

For plaintiffs in defamation suits based on news articles:

Anthony v. Haas signals that courts will be wary of subpoenas that seek, as their central purpose, to identify anonymous government sources absent a robust showing of alternative-source exhaustion.
Plaintiffs must carefully develop their cases through discovery of non-press witnesses and documents before resorting to subpoenas to reporters.

For public officials and employees:

The decision indirectly reinforces that speaking with the press—even without a promise of confidentiality— enjoys substantial legal protection, at least against compelled disclosure of identity in civil litigation.

VIII. Conclusion

Anthony v. Haas is an important reaffirmation of New York’s strong Shield Law protections and a clarification of how rigorously courts must apply the statute’s “alternative source” and waiver provisions.

The Third Department:

Confirms that an editor, as a “professional journalist,” can invoke the Shield Law even if not the article’s author;
Holds that the identity of a nonconfidential but anonymous government source is protected as unpublished, nonconfidential news under the qualified privilege;
Emphasizes that the “no alternative source” requirement is substantive and demanding—self-serving denials and incomplete discovery do not suffice;
Rejects an expansive view of waiver, insisting on proof of actual voluntary disclosure or consent to disclose the specific protected information; and
Requires trial courts to make explicit, detailed findings under Civil Rights Law § 79‑h(c) before ordering a journalist to reveal privileged information.

In practical terms, the decision makes clear that in New York, civil litigants—especially defamation plaintiffs—will rarely succeed in compelling reporters or editors to identify their sources unless they have thoroughly exhausted non-press avenues of discovery and can demonstrate, with specificity, that the information is truly unobtainable anywhere else. By quashing the subpoena in its entirety, the Third Department reinforces New York’s longstanding policy of providing robust statutory protection to the press in its role of gathering and disseminating news on matters of public concern.