I. Introduction: History & Background

The reporter's privilege in the Second Circuit is relatively broad. A litigant may assert the privilege in both civil and criminal cases, and when the information sought is non-confidential or confidential. The tests to overcome the privilege are somewhat more press-protective than elsewhere. The following cases define the most significant aspects of the privilege in the Second Circuit:

•Gonzales v. National Broadcasting Co., 194 F.3d 29 (2d Cir. 1999)

When the information sought is non-confidential, the litigant seeking the information from one who asserts the reporter's privilege under the First Amendment must demonstrate that the information: "(1) is of likely relevance; (2) to a significant issue in the case; and (3) is not reasonably obtainable from other available sources."

•United States v. Cutler, 6 F.3d 67 (2d Cir. 1993)

When a litigant in a criminal case seeks information from a reporter who asserts the reporter's privilege under the First Amendment, the privilege will be defeated if the reporter witnessed the crime and is asked to answer questions that directly relate to that crime. Cutler followed the Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), which held that a reporter who witnesses criminal conduct may not decline to answer questions that directly relate to the conduct the reporter observed.

•United States v. Burke, 700 F.2d 70 (2d Cir.), cert. denied, 464 U.S. 816 (1983)

When the reporter's privilege is asserted under the First Amendment to protect confidential information sought in civil or criminal cases (excluding criminal cases with facts that resemble Branzburg), the subpoenaing party must make "a clear and specific showing that the information is: (1) highly material and relevant, (2) necessary or critical to the maintenance of the claim, and (3) not obtainable from other available sources."