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I. Introduction: History & Background

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.

I. Introduction: History & Background

Delaware has a long common law history of respecting journalistic privilege. Although a reporter may only refuse to testify by claiming a privilege expressly granted under the Reporters' Privilege Act (see D.R.E., Rule 513), those privileges both originated in and continue to be shaped by case law. Both common law and statutory law presume that once a reporter's privilege has been asserted, it is valid unless and until the party seeking the information proves that the privilege should not apply. The burden of overcoming the presumption is difficult.

I. Introduction: History & Background

Missouri has not adopted a shield statute for reporters, but a proposed law is working its way through the Missouri legislature in the spring, 2007, session, so it is possible it will pass and by August, 2007, Missouri will join the states that have a qualified privilege. This will be a significant improvement in this area of the law for this state, inasmuch as the law prior to this time has been murky and not necessarily consistent throughout the state.

I. Introduction: History & Background

The South Carolina General Assembly adopted a reporter's shield law in 1993 in response to a major lobbying effort by the South Carolina Press Association with assistance from the South Carolina Broadcasters Association. The only appellate decision involving the shield law arose out of the murder trial of Susan Smith, the woman who rolled her car into a lake with her young sons strapped in their car seats. Twila Decker, a reporter for The State newspaper in Columbia, S.C.

I. Introduction: History & Background

The Fifth Circuit has recognized a First Amendment qualified privilege for journalists in certain classes of cases. Where a subpoena seeks the identity of a journalist's confidential source in a civil case, including a defamation case in which the reporter or media organization is a party, the reporter enjoys the privilege, and the party seeking the information must demonstrate with substantial evidence that the information is relevant and not available elsewhere, and that its need for the information is compelling. Miller v.

I. Introduction: History & Background

The reporter's privilege in Florida, as in most states, finds it roots in the First Amendment and the plurality opinion of Branzburg v. Hayes, 408 U.S. 665 (1972). The privilege exists in the common law and constitutional law of Florida and embodies a recognition that protecting a free and unfettered press is a sufficiently compelling interest to justify depriving litigants of potential sources of information in many cases. See, e.g., State v. Davis, 720 So. 2d 220 (Fla. 1998); Tribune Co. v. Huffstetler, 489 So. 2d 722 (Fla. 1986).

I. Introduction: History & Background

At the time of submission of this summary, there are no reported decisions from Mississippi's appellate courts regarding the reporters' privilege, qualified or otherwise. The authors were limited to selected orders from state trial courts which discuss the reporters' privilege, although with limited legal analysis. The majority of these orders recognize a qualified privilege for reporters and apply a three-part test forwarded by the Fifth Circuit Court of Appeals in Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (5th Cir. 1980).

I. Introduction: History & Background

South Dakota has no shield law and there is only one appellate decision in which the issue of compelled disclosure was addressed in any context. See Hopewell v. Midcontinent Broadcasting Corp., 538 NW2d 780 (SD 1995).

I. Introduction: History & Background

While the 6th Circuit definitely recognizes some sort of privilege for reporters faced with subpoenas from litigants, the scope and contours of that privilege are as yet not entirely defined. For instance, whereas the privilege is relatively strong in the civil context, its application in criminal cases is less certain, due to dictum in a case decided in 1987 stating that no such protection exists, under the First Amendment, for grand jury subpoenas.

I. Introduction: History & Background

Since its enactment in 1990, the Georgia Supreme Court has repeatedly enforced Georgia's qualified reporter's privilege to protect the news media. Additionally, the Court has recognized a right of automatic appeal for non-party reporters in the event a trial court orders disclosure of newsgathering information notwithstanding an objection under the privilege. Given the established law regarding the privilege, the news media routinely prevails on those occasions that a litigant seeks to compel information from a non-party reporter obtained in the process of newsgathering.