I. Introduction: History & Background

The Fourth Circuit has been less aggressive than many of its counterparts in enunciating a reporter's privilege. The Court first explored a testimonial privilege in 1976 but indicated that to invoke the privilege, a journalist must claim confidentiality of the information sought or vindictiveness on the part of the questioning party. United States v. Steelhammer, 539 F.2d 273 (4th Cir. 1976), rev'd en banc, 561 F.2d 539 (4th Cir. 1977). In LaRouche v. Nat'l Broadcasting Co., Inc., 780 F.2d 1134, 12 Media L. Rep. 1585 (4th Cir. 1986), cert. denied, 479 U.S. 818 (1986), the Fourth Circuit followed several Circuits in adopting a balancing test for determining whether a reporter's privilege will protect a confidential source-reporter relationship. The applicability of the privilege and the balancing test to nonconfidential information remained unclear, however. See In re Shain, 978 F.2d 850, 20 Media L. Rep. 1930 (4th Cir. 1992) (relying upon Steelhammer to hold that the absence of confidentiality or vindictiveness fatally undermined the reporter's claim to a First Amendment privilege for nonconfidential information obtained from a nonconfidential source). Nevertheless, the Fourth Circuit's recent decisions indicate the vitality of a qualified First Amendment privilege for both confidential and nonconfidential sources and information.

In Church of Scientology Int'l v. Daniels, 992 F.2d 1329, 21 Media L. Rep. 1426 (4th Cir. 1993), cert. denied 510 U.S. 869 (1993), the Church sued a drug company executive for libel based on a statement made by the executive in a USA Today editorial board meeting and published by the newspaper. The Church moved to compel production by USA Today of materials relating to the board meeting, even though the executive offered to stipulate to the quotation's accuracy. The Fourth Circuit, in affirming the district court's denial of the Church's motion, applied the LaRouche balancing test despite the nonconfidential nature of the information sought and the absence of vindictiveness. Id. at 1335. Lower courts have followed, expanding the qualified privilege to encompass nonconfidential information. See Food Lion Inc. v. Capital Cities/ABC Inc., 951 F. Supp. 1211, 25 Media L. Rep. 1182 (M.D.N.C. 1996) (applying a modified balancing test in permitting limited discovery of nonconfidential hidden camera investigations); Penland v. Long, 922 F. Supp. 1080, 24 Media L. Rep. 1410 (W.D.N.C. 1995) (applying LaRouche test in granting motion to quash plaintiffs' subpoena for nonconfidential information on interviews with defendant).

Most recently, the Fourth Circuit in Ashcraft v. Conoco, Inc. reinforced the application of a reporter's privilege and balancing test where the protection of confidential news sources or information is threatened. 218 F.3d 282, 28 Media L. Rep. 2103 (4th Cir. 2000). Cory Reiss, a reporter for the Wilmington, N.C., Morning Star, was found in civil contempt and ordered to an indefinite term of imprisonment for refusing to disclose his sources of information about an allegedly confidential, $36 million court settlement. Id. at 286. Before Mr. Reiss was required to report to jail, the Fourth Circuit stayed the order pending appeal, and on appeal the Court found that under its LaRouche test, the state had not asserted a compelling interest sufficient to overcome Reiss' privilege to withhold the names of his confidential sources. Id. at 288.