The qualified reporter's privilege developed by Powell in his Branzburg concurrence requires a judicial balancing of the interests at stake. Branzburg v. Hayes, 408 U.S. 665 (1972) (Powell, J., concurring). If the circumstances of a case show that the privilege applies, the Ninth Circuit requires the court to determine whether, in light of the competing needs and interests of society and the opposing parties, the privilege has been overcome. Shoen I, 5 F.3d at 1292. The test requires that the claimed First Amendment privilege and the opposing need for disclosure be judicially weighed in light of the surrounding facts and a balance struck to determine where lies the paramount interest. See Farr v. Pritchess, 522 F.2d 464, 468-69 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976) (affirming a district court's denial of reporter's habeas corpus petition, holding that the state court had a duty to enter into enforceable nondisclosure orders to protect the due process rights of accused persons). The journalist's First Amendment interests in avoiding compelled disclosure include: "the threat of administrative and judicial intrusion into the newsgathering and editorial process; the disadvantage of a journalist appearing to be an investigative arm of the judicial system or a research tool of government or of a private party; the disincentive to compile and preserve non-broadcast material; the burden on journalists' time and resources in responding to subpoenas;" and the possibility that frequent court-compelled disclosure will encourage the destruction of research material soon after publication. See Wright, 2002 U.S. Dist. LEXIS 6668 (quoting Shoen I, 5 F.3d at 1292-93).
When deciding whether to enforce a subpoena, courts often consider whether a litigant's constitutional rights are at issue. See Dillon, 748 F. Supp. at 727 (denying a cameraman's motion to quash because his personal observations were not privileged, and holding that even if they were privileged, all factors weighed in favor of enforcing the subpoena because "the federal rights sought to be enforced here are substantial ones that rise to a constitutional level."); Farr, 522 F.2d at 469 (affirming a district court's denial of the reporter's habeas corpus petition, holding that the state court had a duty to enter into enforceable nondisclosure orders to protect the due process rights of accused persons). Courts also weigh the public's interest in protecting a reporter's First Amendment rights against the public's interest in disclosure. See Los Angeles Memorial Coliseum Comm'n v. NFL, 89 F.R.D. 489, 493-94 (C.D. Cal. 1981) (granting the reporters' motion to quash because the journalist's privilege protected the reporters' sources and work product). In Los Angeles Memorial Coliseum Comm'n, a district court found that in civil cases, the public interest in non-disclosure of a journalist's confidential sources outweighs the public and private interest in compelled testimony. Id. (quoting Altemose Construction Co. v. Building and Construction Trades Council, 443 F. Supp. 489, 491 (E.D. Pa. 1977)).