4B

The privilege belongs to the reporter, and not to the source. In Small v. UPI, 84 Civ. 7320 (VLB), 1989 U.S. Dist. LEXIS 12459 (S.D.N.Y. Oct. 20, 1989) (Roberts, Mag.), the court held that the privilege belongs to the reporter and the source may neither waive the privilege nor invoke the privilege to protect information that the reporter may choose to reveal. In Small, plaintiff sued UPI and some of its executives for breach of contract and defamation.

Neither the Shield Law nor the case law address whether the privilege belongs to the source, the reporter, the reporter's employer, or any combination thereof.

There are no appellate decisions addressing this issue

1. Shield Law

Given that the Pennsylvania Supreme Court in In re Taylor held that only the reporter could waive the privilege, it appears that the privilege belongs to the reporter, not the source.

2. First Amendment privilege

In the Third Circuit, the First Amendment-based privilege ostensibly belongs to the reporter or news organization and not to the source. See, e.g., United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980) ("The privilege belongs to CBS, not the potential witnesses, and it may be waived only by its holder."); Damiano v. Sony Music Entm't, Inc., 168 F.R.D. 485, 500-01 (D.N.J. 1996) (privilege belongs to reporter and/or Associated Press, not source).

The privilege set forth in the District's shield law belongs to a person who is or has been employed by the news media in a news gathering or news disseminating capacity. D.C. Code § 16-4702.

The privilege belongs to the "person who is or has been directly engaged in the gathering, procuring, compiling, editing, or publishing of information for the purpose of transmission, dissemination or publication to the public," in the words of the statute. One district court has held that the "statutory privilege is that of the media, not of the sources." Order and Memorandum at 9, Jamieson v. Doe, No. MC 88-18860, Hennepin Cty., Minn., Dist. Ct., dated February 1, 1989.

According to the express terms of the statute, the privilege belongs to the "person" who obtained the confidential information. R.I. Gen. Laws § 9-19.1-2.

Though there have been no cases in the Fourth Circuit in which a source has attempted to invoke or waive the privilege, the privilege is characterized as belonging to the reporter and not the source. See, e.g., Ashcraft, 218 F.3d at 287 ("If reporters were routinely required to divulge the identities of their sources, the free flow of newsworthy information would be restrained …"); Gilbert v. Allied Chemical Corp., 411 F. Supp. 505, 508 (E.D. Va. 1976) ("the First Amendment, protecting as it does the free flow of information, provides newsmen a privilege …").

The privilege belongs to a person or entity who is designated a "reporter." See 10 Del. C. §§ 4320-22, 4325.