Defining a journalist entitled to statutory and constitutional protection for confidentiality

The strong interest in guaranteeing anonymity to whistleblowers and others who possess and provide information about government misconduct does not apply with any less force to online publishers' use of confidential sources to help inform the public about how its government is behaving. Yet, a determination of whether web-based writers are entitled to the statutory or constitutional protection from the compelled disclosure of information is not nearly as cut-and-dry as it is for members of the traditional media. In most cases, the decision hinges on whether you are subpoenaed in state or federal court, specifically what activities qualify as "journalism" in those particular jurisdictions.

State subpoena

If you are subpoenaed to testify in a proceeding in state court and you reside in one of 40 states, along with the District of Columbia, with a shield law, you may be privileged from having to testify. Even in those states, however, that assurance is by no means definite. Some states limit application of their statutory protection for subpoenaed reporters to individuals who have a professional affiliation with an established media entity or who gather and disseminate information to the public for a portion of the person’s livelihood. Yet other states broadly define a “covered person,” extending the protection to anyone who regularly reports or publishes information of significant public interest. In these states, a blogger or other nontraditional publisher would likely be protected. 

You should keep in mind that some states, while accommodating new electronic means of communicating information, may still link these new media to traditional media outlets with "similar" means of disseminating news. Perhaps the strongest example of this nexus is in New Jersey, where the state Supreme Court recently held that the shield law cannot extend to all people who claim they are journalists but instead requires those who successfully invoke its protections to have some connection to "news media." Therefore, protected forms of communication can include media outlets not listed in the statute so long as they are similar to traditional news media. Conversely,  electronic media that are not the functional equivalent of the types of news media outlets outlined in the shield law -- in the New Jersey case, online message boards -- are not covered by the statute. Accordingly, your chosen medium of publication must have a requisite relationship with one of the traditional ones listed in the shield law to be protected under it in New Jersey and states with similar interpretations of their shield laws.

If you live in one of the 10 states without a shield law, you may have a privilege to refuse to testify, not based on state statute, but through the state constitution.

Federal subpoena

Deciding who qualifies for the protection is often just as difficult in federal court as it is under state shield laws.

In the absence of a federal shield law, the standard for evaluating claims of eligibility to a reporter’s privilege in federal court is generally that derived from von Bulow v. von Bulow, a 1987 case from the U.S. Court of Appeals in New York (2nd Cir.). In von Bulow, the court emphasized the intent to disseminate information to the public, and the existence of that purpose at the inception of the newsgathering process, versus the medium for doing so. Under this test, courts have extended the privilege to refuse to disclose information received from a source to a variety of nontraditional information gatherers.

“What makes journalism journalism is not its format but its content,” a judge from the U.S. Court of Appeals in San Francisco (9th Cir.) said in a similar case, Shoen v. Shoen, which invoked the von Bulow test.

Recently, the same court that decided von Bulow found that a documentary filmmaker did not adequately prove he was a journalist entitled to invoke the First Amendment-based reporter’s privilege, mainly because he failed to show that he was independently reporting and providing commentary.

Notably, more and more courts, both state and federal, are having the opportunity to consider the editorial functions of online publishers, a trend likely to result in the development of this area of the law in upcoming years.