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).
In 1976, in light of Branzburg, Florida first afforded a qualified reporter's privilege. See Morgan v. State, 337 So. 2d 951 (Fla. 1976). In Morgan, the Florida Supreme Court adopted the balancing test set forth in Justice Powell's concurring opinion in Branzburg. Thus, in assessing whether the journalist's privilege is overcome, a court must balance the interest sought to be advanced in compelling disclosure against the public's interest in unencumbered access to information. Over the next two decades, Florida courts refined that balancing test. Today, Florida's common law privilege protects a journalist's news-gathering information unless the subpoenaing party shows that the information sought is relevant to the specific issues in the case, that the information cannot be obtained by means less destructive of First Amendment rights, and that a compelling interests exists in disclosure sufficient to override the interests protected by the privilege. See Davis, 720 So. 2d at 224.
In 1998, the balancing test was codified in Section 90.5015, Florida Statutes. The statute became effective on May 12, 1998. As with the common law privilege, once the statutory privilege attaches, it only can be overcome by a clear and specific showing that the information in the journalist's possession is relevant and material to unresolved issues in the case, cannot be obtained from alternative sources, and compelling need exists that requires disclosure. Section 90.5015, by its express terms, does not limit the privileges existing under the First Amendment, Florida Constitution (Article I, § 4), or Florida common law. Fla. Stat. § 90.5015(5) (2006). Thus, it is beneficial to assert the U.S. and Florida constitutions, Florida common law, and Section 90.5015 in objecting to a reporter's subpoena.