Waiving the privilege

The issue of when a reporter’s privilege to refuse to disclose information is lost or waived varies widely by jurisdiction. Most state shield statutes do not address the question. A few, however, indicate that limited disclosure, via publication or testimony by a journalist, does not waive the privilege protecting against the forced disclosure of additional information. Others provide that confidential sources can destroy the publisher's privilege by revealing their own identities.

In some cases, a state’s rules of evidence may weigh in on the issue and conflict with the shield law. For example, although the New Jersey shield law provides for a privilege for information “whether or not it is disseminated,” its evidence rules declare that a person claiming a privilege cannot refuse to testify if any part of the confidential information is disclosed. The New Jersey Supreme Court was forced to decide the issue and ruled that the shield law controlled and explicitly covered information already disseminated.

The waiver issue is equally non-uniform in federal courts. For example, the federal appellate courts in New York and Philadelphia hold that because the privilege belongs to the reporter, the source may not waive it. That is, at least in the Philadelphia courts, a reporter may be privileged to refuse to acknowledge a source, even where the source voluntarily identified him or herself. Conversely, the federal appellate court in New Orleans has indicated that in some circumstances, namely where the material in question relates directly to the source and is not merely the reporter’s work product, the source is empowered to waive the privilege such that the reporter may not refuse to disclose information provided by the source.

Because of these vast discrepancies in the law of waiver, be sure to consult the relevant outlines linked above to find out how your state (or federal circuit) addresses the issue.