I. Introduction: History & Background

Relying on the United States Supreme Court's decision in Branzburg v. Hayes, the Ninth Circuit Court of Appeals offers reporters a relatively broad qualified privilege from compelled disclosure. It has found that in the ordinary civil case the litigant's "interest in disclosure should yield to the journalist's privilege." Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir 1995) (Shoen I). The court also has interpreted the role of the media broadly, declaring that "what makes journalism journalism is not its format but its content." Shoen v. Shoen 5 F.3d 1289, 1293 (9th Cir. 1993) (Shoen II).

Ninth Circuit cases applying the reporters privilege, however, have had mixed results--protecting the journalist in some circumstances and forcing disclosure in others. Some courts in the circuit, for example, have held that an investigative author could not be required to reveal information told to him in confidence for use in his book, id.; non-party reporters could not be deposed or forced to produce notes or other materials, Los Angeles Memorial Coliseum Comm'n v. National Football League, 89 F.R.D. 489, 493 (C.D. Cal. 1981); and a non-party magazine publisher cannot be compelled to reveal unpublished information, Carushka, Inc. v. Premiere Prods., Inc., 17 Med. L. Rep. 2001 (C.D. Cal. 1998). Other courts in the circuit, on the other hand, have held that a television news cameraman must testify regarding his personal observations while on assignment, Dillon v. City of San Francisco, 748 F. Supp. 722 (N.D. Cal. 1990); a tabloid must reveal its sources in a defamation action where the plaintiff must show "actual malice," Star Editorial, Inc. v. United States Dist. Court, 7 F.3d 856, 861 (9th Cir. 1993); a journalist can be jailed for refusing to identify the confidential sources who had provided him with copies of non-public court documents, Farr v. Pritchess, 522 F.2d 464, 468-69 (9th Cir. 1975); a blogger may be held in civil contempt where he refused to provide to a grand jury his unpublished video footage obtained in the course of newsgathering, In re Grand Jury Subpoena, Joshua Wolf, 201 Fed. Appx. 430 (9th Cir. 2006) (unpublished); and reporters could be forced to appear before a grand jury and to provide materials regarding their confidential source of grand jury transcripts, In re Grand Jury Subpoenas to Wada & Williams, 438 F. Supp. 2d 1111 (N.D. Cal. 2006).

Therefore, based on these and other cases, predicting how a court in the Ninth Circuit will react to a particular set of factual circumstances can be difficult. While the reporter's privilege is relatively strong in theory, the protection offered by the Ninth Circuit in practice is at times weak and volatile.