I. Introduction: History & Background

In general, the Third Circuit historically has afforded broad protection to journalists against compelled disclosure of their sources or the fruits of their newsgathering. Indeed, at least so far as reported opinions reveal, in civil actions involving subpoenas to non-party reporters, invocation of the First Amendment-based qualified reporter's privilege is almost always upheld. Although courts within the Third Circuit are more likely to find that other constitutional interests outweigh the reporter's privilege when invoked by journalists in criminal cases or grand jury proceedings (especially where the identity of a source has already been made known through other means), even in these areas, the Third Circuit is relatively hospitable to the privilege. Indeed, the federal courts arguably have adopted a broader reading of the Pennsylvania Shield Law than have that state's courts.

As set forth in more detail below, the Third Circuit employs a three-part balancing test to determine whether a person seeking disclosure from a journalist has overcome the privilege: Such a person must make specific showings that the information sought is material, relevant and necessary to the party's claims or defenses. See, e.g., Riley v. City of Chester, 612 F.2d 708, 716 (3d Cir. 1979). In practice, this means that the party seeking disclosure must show that he or she has exhausted other potential sources for the information sought from a journalist and that such information is crucial to the party's claims or defenses. See, e.g., id. at 717. The sufficiency of the showing required for each element will depend upon a balancing test in which the courts weigh the relative interests of the reporter with the interests of the party seeking disclosure. See, e.g., id. at 716-17. Thus, for example, where a criminal defendant's constitutional right to a fair trial is implicated by a request for disclosure, he or she likely will not need to make as great a showing to overcome the privilege as would a civil litigant whose constitutional rights were not implicated.

Author’s Note: The author gratefully acknowledges Aaron Johansen (the current edition) and John F. Blevins (the prior edition) for the research and writing they contributed to this outline.