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Courts in Wyoming have not addressed whether an appeal can be undertaken after the material at issue has been disclosed. However, the Wyoming Supreme Court has adopted two exceptions to the mootness doctrine. They are that the issue at hand 1) "is capable of repetition but evading review," or 2) is of "great public importance." Either exception could be used to justify an appeal after the reporter's materials have already been disclosed in the trial court.
The Arkansas Supreme Court has stated numerous times that it will not address moot issues except under limited circumstances. The Court has stated that its duty is to decide actual controversies and that an issue is moot when it has no legal effect on an existing controversy. Killam v. Texas Oil & Gas Corp., 303 Ark. 547, 798 S.W.2d 419 (1990). The Court will accept an appeal of a moot issue if the issues raised are likely to recur. See Camden Community Dev. Corp. v. Sutton, 339 Ark. 368, 5 S.W.3d 439 (1999).
In Burns, the "informant voluntarily identified himself when he learned of the contempt proceedings." Burns, 484 So.2d at 658. The Supreme Court of Louisiana nevertheless held that the "trial court erred in holding the reporter's privilege inapplicable." Id. Thus, disclosure of a source's name does not necessarily moot the issue.
The possibility of mootness will sometimes arise in the criminal context where the trial proceeds without the reporter's testimony or materials or where a grand jury, having previously issued a subpoena to a reporter, disbands before an appeal on a motion to quash the subpoena can be heard. See, e.g., In re Codey, 82 N.Y.2d 521, 606 N.Y.S.2d 661 (1993) (grand jury disbanded prior to appeal).
No statutory or case law addresses this issue in the context of cases involving the reporter's privilege. Nevertheless, Arizona recognizes the exception to mootness for cases capable of repetition but evading review. See, e.g., KPNX Broadcasting, 139 Ariz. at 250, 678 P.2d at 435.
A case in which a reporter was held in contempt for refusing to testify to the grand jury was dismissed as moot when the grand jury session expired. See Commonwealth v. Corsetti, 438 N.E.2d 805, 810 (Mass. 1982).
Massachusetts courts will hear appeals of cases when the issue is "capable of repetition but evading review." See, e.g., Cohen v. Bolduc, 760 N.E.2d 714 (Mass. 2002).
No statutory or case law addressing mootness in cases concerning the news gathering privilege exist. However, case law generally states that: "Even where litigation poses a live controversy when filed, the doctrine [of mootness] requires a federal court to refrain from deciding it if 'events have so transpired that the decision will neither presently affect the parties' rights nor have a more-than-speculative chance of affecting them in the future.'" Clarke v. United States, 915 F.2d 699, 701 (D.C. Cir.
The possibility of mootness often will arise in criminal proceedings, when the trial proceeds without the reporter's testimony. However, the issues frequently will remain alive because the contempt order is outstanding and the reporter will be subject to punishment if the order is not reversed. E.g., In re Willon, supra, 47 Cal. App. 4th at 1088 n.2.
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