I. Introduction: History & Background

New Mexico has had a reporter's privilege on the books since 1967. In 1973, following the United States Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), the statute was lengthened and strengthened. But in 1976, the New Mexico Supreme Court held the statute unconstitutional to the extent that it purported to regulate matters of procedure in the state courts by creating a rule of evidence.

The separation-of-powers problem was solved in 1982, when the state supreme court promulgated its own rule of evidence embodying a reporter's privilege. Rule 11-514 endows journalists with a privilege to refuse to disclose "confidential sources" and "confidential information." The privilege may yield, however, to a showing that "the confidential information or source is crucial to the case of the party seeking disclosure," that the requesting party's interest in disclosure "clearly outweighs the public interest" in continued confidentiality, and that the requesting party "has reasonably exhausted alternative means of discovering" the information. The rule also specifies the manner in which courts will adjudicate assertions of privilege. Meanwhile, the 1973 statute presumably continues to define the scope of the reporter's privilege, and the procedure for enforcing it, in legislative and administrative proceedings.