Sources and Subpoenas (Reporter's Privilege)

Have you been served with a subpoena? Is someone demanding that you reveal a source, or provide what you feel is protected newsgathering information? Do you have a question about the reporter's privilege -- the right not to be compelled to testify or reveal sources in court?

The use of subpoenas to force journalists to disclose their confidential news sources and unpublished information significantly intrudes on the newsgathering process. Shield laws exist in forty states (W. Va. passed one in April 2011); if a reporter isn't covered by a shield law, there may still be a constitutional privilege that helps protect sources and information.

Under either scenario, the right is often 'qualified" -- balanced against other interests -- and there are still exceptions, such as when the reporter is an eyewitness to a crime. Digital journalists are often covered by the privilege. All journalists may also have legal obligations to their confidential sources if they breach the agreement. Web sites may be able to protect the identity of anonymous posters, under developing laws or even shield laws.

If you are subpoenaed, there are certain steps you should take immediately. Separation orders can keep you from attending a trial if you are subpoenaed. Reporters should also be aware of the sanctions for non-compliance. Federal law and some state laws protect journalists from having their work product and documents seized without a warrant.

Common questions

Unfortunately, this option may not be as simple as it seems, particularly when the government seeks your testimony in a criminal matter, where the defendant is guaranteed the constitutional right to confront witnesses against him or her. 

In very limited instances that have occurred only rarely, a journalist may be able to rely on his or her Fifth Amendment right against self-incrimination in refusing to testify about confidential sources or other information. The facts of the case, however, have to be such that somehow, for whatever reason, the reporter fears a real danger of incrimination if he or she testifies and provides the requested information.

Yes, provided you are blameless in the illegal interception of the information. The U.S. Supreme Court held in Bartnicki v. Vopper that the First Amendment, in the interest of securing news and thereby fostering a robust and uninhibited debate on public issues, protects the media for publishing information of public concern that they know was obtained unlawfully by a source but where they did not participate in or encourage the illegal interception of the information.

Like that for non-student journalists, the answer is "it depends," namely on the state in which the student attends school and which court, federal or state, issued the subpoena.

The answer to this question is that we simply cannot know for certain. What we do know, though, is that the overwhelming majority of subpoenas to members of the news media are issued by state, rather than federal, courts. 

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Since 1970, the Department of Justice has followed a set of guidelines created by the Attorney General for use by Department employees when they want to subpoena the news media. The guidelines originally applied only to subpoenas served directly to journalists, but in 1980 were amended to cover telephone records held by a telephone service provider.

The guidelines are found at 28 C.F.R. s. 50.10.

The ability to report the news often depends on the ability to protect the confidentiality of news sources. When a journalist faces a defamation suit based on information provided by a confidential source, however, the promise of anonymity to that person may prevent the reporter from relying on certain defenses.        

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.

When nontraditional members of the media invoke the press privilege to refuse to disclose information obtained while newsgathering, courts must examine the circumstances of the publication of the material to decide whether the authors are entitled to this protection

While state shield laws and the constitutionally based reporter’s privilege may help you fight subpoenas for your testimony, a federal law may help protect you from search warrants for material related to your Internet publishing.

In response to a large number of federal court subpoenas issued to journalists and other online content providers in recent years, media advocates pushed for bipartisan legislation that would have established a federal shield law. Despite these efforts, however, the Free Flow of Information Act failed to reach the Senate floor this past Congressional term, signaling its death knell for the immediate future.

Unfortunately for journalists and other information providers, searches of laptop computers, digital cameras and other newsgathering materials are not uncommon at airports and other border crossings; border agents can even detain the electronic devices. And what's even more unfortunate, little can be done to prevent them.

Journalists, particularly those who rely on international sources, should always keep in mind that they are not exempt from secret warrants allowing officials to perform wiretaps and searches. Enacted by Congress in 1978 to regulate eavesdropping on foreign targets, the Foreign Intelligence Surveillance Act, which created a secret spy court with the power to authorize such surveillance, has over the years tilted away from its intended balance between privacy and national security concerns.

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.

Despite the lack of a federal shield law, journalists subpoenaed to testify in federal court are not wholly without protection. The majority of federal courts recognize that the First Amendment creates a reporter's privilege to refuse to disclose confidential sources or other information obtained while newsgathering. Somewhat ironically, courts that recognize the privilege do so based on the U.S.

In the absence of a federal shield law protecting publishers from revealing confidential sources and other information obtained while newsgathering, courts that recognize the privilege under another source of law apply a balancing test that weighs the need for disclosure against First Amendment interests.