A. Shield law statute

North Carolina's "reporter's privilege" or "shield law" is codified at N.C. Gen. Stat. § 8-53.11. This statute provides as follows:

Persons, companies, or other entities engaged in gathering or dissemination of news.

(a) Definitions. - The following definitions apply in this section:

(1) Journalist. - Any person, company, or entity, or the employees, independent contractors, or agents of that person, company, or entity, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium.

(2) Legal proceeding. - Any grand jury proceeding or grand jury investigation; any criminal prosecution, civil suit, or related proceeding in any court; and any judicial or quasi-judicial proceeding before any administrative, legislative, or regulatory board, agency, or tribunal.

(3) News medium. - Any entity regularly engaged in the business of publication or distribution of news via print, broadcast, or other electronic means accessible to the general public.

(b) A journalist has a qualified privilege against disclosure in any legal proceeding of any confidential or non-confidential information, document, or item obtained or prepared while acting as a journalist.

(c) In order to overcome the qualified privilege provided by subsection (b) of this section, any person seeking to compel a journalist to testify or produce information must establish by the greater weight of the evidence that the testimony or production sought:

(1) Is relevant and material to the proper administration of the legal proceeding for which the testimony or production is sought;

(2) Cannot be obtained from alternate sources; and

(3) Is essential to the maintenance of a claim or defense of the person on whose behalf the testimony or production is sought.

Any order to compel any testimony or production as to which the qualified privilege has been asserted shall be issued only after notice to the journalist and a hearing and shall include clear and specific findings as to the showing made by the person seeking the testimony or production.

(d) Notwithstanding subsections (b) and (c) of this section, a journalist has no privilege against disclosure of any information, document, or item obtained as the result of the journalist's eyewitness observations of criminal or tortious conduct, including any physical evidence or visual or audio recording of the observed conduct.

The shield law became effective October 1, 1999, and applies only to information or documents prepared while acting as a journalist on or after that date. See An Act to Promote the Free Flow of Information to the People of North Carolina by Codifying the Journalists' Testimonial Privilege, ch. 267, 1999 N.C. Sess. Laws 359, s. 2. Although it may be unlikely that information gathered before October 1, 1999 would be the subject of a subpoena, it is important to remember that the statutory privilege would not apply to such information, and any motion to quash a subpoena issued for such information would have to be argued on the basis of the common law privilege arising from the federal or state constitutions. Similarly, should a judge determine that the shield law does not apply to any other particular situation, a journalist could still assert a constitutional privilege.

In summary, the shield law grants journalists a broad but qualified privilege against disclosure of newsgathering information. The protection extends to virtually everyone connected with the publication or distribution of news information, including, but not limited to, reporters, photographers, stringers, and freelance reporters. All newsgathering activity is protected, so long as the activity is related to the business of publication or distribution of news via print, broadcast, or other electronic means. In addition, the statute protects all newsgathering information, regardless of whether the information is confidential or non-confidential. Finally, the protection extends to all legal proceedings, including criminal, civil, grand jury and quasi-judicial (i.e., administrative) proceedings.

To overcome the privilege, the party seeking the information must show: (1) that it is relevant and material to the proper administration of the legal proceeding; (2) that it cannot be obtained from alternative sources; and (3) that it is essential to the maintenance of a claim or defense. An order compelling the production of newsgathering information can only be made after notice and a hearing and upon "clear and specific" findings as to the showing made by the person seeking the information. However, no privilege exists for information or documents that result from a journalist's eyewitness observations of criminal or tortious conduct, including any recordings of the observed conduct.

As noted above, the North Carolina shield law statute was introduced and enacted in response to a decision of the North Carolina Court of Appeals refusing to recognize the reporter's privilege with respect to non-confidential information obtained from non-confidential sources in a criminal case. In re Owens, 128 N.C. App. 577, 496 S.E.2d 592, 26 Media L. Rep. 1953 (1998). In that case, television reporter Sarah Owens had taped an interview with the attorney of a murder suspect, and the prosecutor in the case issued a subpoena demanding that she testify about the tape. She appeared at a hearing, but refused to testify, claiming that her testimony was privileged. The trial court judge held the reporter in contempt of court and sentenced her to 30 days in jail, which was later reduced to 2 hours. The reporter appealed the contempt order to the Court of Appeals, which issued a decision on February 17, 1998, affirming the trial court's decision, albeit on the narrow ground that in a criminal case a reporter enjoys no privilege for non-confidential information obtained from non-confidential sources.

A few days after the Court of Appeals decision in Owens, a reporter for the Raleigh News & Observer, Andy Curliss, received a subpoena in another capital murder case. The prosecution sought Mr. Curliss' notes from a jailhouse interview with the defendant, Derrick Allen. The trial court undertook an in camera review of the notes in issue and, without clearly ruling whether it recognized a privilege at all, ruled that the reporter must turn over his notes. The court granted the newspaper's motion for a stay of this ruling and, acting under a provision allowing matters ancillary to capital murder cases to go directly to the North Carolina Supreme Court, the newspaper petitioned the Supreme Court for certiorari. The court granted certiorari, and oral argument was heard in the end of May 1998 after an expedited briefing schedule.

The North Carolina Supreme Court also granted review in Owens and heard oral argument in in September 1998. After months went by without a decision from the Supreme Court in either Owens or Curliss, the North Carolina Press Association and the North Carolina Association of Broadcasters worked with key legislators to craft legislation to overrule the Owens decision and codify the journalist's testimonial privilege. The result of this effort was the enactment of the shield law, which was ratified by the legislature on June 30, 1999, and signed into law by the Governor on July 9, 1999.

Immediately after enactment of the shield law, on July 23, 1999, the Supreme Court issued a one sentence decision affirming Owens but noting the enactment of the shield law. See In re Owens, 350 N.C. 656, 517 S.E.2d 605, 27 Media L. Rep. 2340 (July 23, 1999) (the lower's court's decision in Owens was affirmed, despite the passage of the shield law, because the reporter's material in Owens was gathered before the shield law's October 1, 1999 effective date). On the same day, the Supreme Court entered an order in Curliss holding that certiorari had been improvidently granted, therefore sending the matter back to the trial court. See In re Curliss, 350 N.C. 655, 517 S.E.2d 381 (1999).

No formal legislative history exists to provide additional context and explanation of the shield law. However, some guidance concerning the legislature's intent may be obtained by comparing the Bill that was ultimately enacted, Senate Bill 1009, with the companion House Bill 1200 that was passed by the House but ultimately rejected in favor of the Senate version. There were three principal substantive differences between these Bills:

(1) In the House Bill, the definition of "journalist" lacked the phrase: "or the employees, independent contractors or agents of that person, company or entity;"

(2) The House Bill lacked a provision specifying that a journalist has no privilege against disclosure of the journalist's eyewitness observations of criminal or tortious conduct; and

(3) The House Bill had a provision allowing the award of reasonable attorneys' fees and expenses to the prevailing party.

There have been no substantive amendments to the shield law statute since it was enacted in 1999, although the statute was initially codified as G.S. § 8-53.9 and subsequently was recodified as G.S. § 8-53.11.