IV. Who is covered

It appears that the Third Circuit has only once ventured into the difficult business of defining who is entitled to invoke the First Amendment-based reporter's privilege, in In re Madden, 151 F.3d 125 (3d Cir. 1998). There, an employee of "World Championship Wrestling" was responsible for recording "reports" regarding "professional" wrestlers and wrestling events on a 900 telephone line, for access to which callers paid a fee. The Third Circuit held that persons or entities seeking to invoke the First Amendment-based journalist's privilege have the burden of demonstrating that they are "engaged in investigative reporting, gathering news, and have the intent at the beginning of the newsgathering process to disseminate this information to the public." Id. at 130. Because Madden concededly was an "entertainer," not a reporter, and concededly was not primarily in the business of gathering news or facts, but of creating "hype" and "fiction," the Third Circuit concluded that he was not entitled to invoke the journalist's privilege. As the court explained, "This test does not grant status to any person with a manuscript, a web page or a film, but requires an intent at the inception of the newsgathering process to disseminate investigative news to the public. As we see it, the privilege is available only to those persons whose purposes are those traditionally inherent to the press; persons gathering news for publication." Id. at 129-30. Nevertheless, it also observed that "'it makes no difference whether the intended manner of dissemination was by newspaper, magazine, book, public or private broadcast or handbill because the press, in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.'" Id. at 129 (citations omitted); see also, e.g., In re Scott Paper Co. Sec. Litig., 145 F.R.D. 366, 368-69 (E.D. Pa. 1992) (intent to disseminate information for good of public weighed in favor of finding that credit reporting company was entitled to invoke journalist's privilege); Butczynski v. Luzerne County, 2006 WL 952408, at *2 (M.D. Pa. 2006) ("A qualified privilege arises where a party seeks discovery of facts acquired by a journalist in the course of gathering news.").