I. Introduction: History & Background

In January 2008, the Utah Supreme Court adopted Utah Rule of Evidence 509.  This rule provides broad protection to news reporters.  In particular, it provides nearly absolute protection for confidential source information and qualified protection for non-confidential newsgathering information.  Adoption of Rule 509 culminated nearly three years of intensive efforts by Utah news organizations and media outlets to enact a shield law.   In adopting this rule, Utah became one of the last states to adopt a reporter’s privilege (either by statute, court rule, or appellate court opinion).  Although there are not yet any judicial decisions interpreting the new rule, its robust protection for newgathering expands the protection previously recognized under the First Amendment by state and federal trial courts in Utah.  Prior to the adoption of this rule, Utah journalists and news organizations had been successful in persuading state and federal trial courts to quash subpoenas seeking reporters' testimony and news gathering material in a variety of criminal and civil cases on the grounds that the First Amendment provided a qualified privilege protecting such material. See generally Edward L. Carter, Reporter's Privilege in Utah, 18 BYU Journal of Public Law 163 (2003). State trial judges also had recognized the existence of a qualified reporter's privilege for both confidential and non-confidential information, such as outtakes and reporter notes. However, some Utah trial judges, citing the lack of a shield law or reported appellate decision defining the reporter's privilege, had been reluctant to afford journalists more than token protection from subpoenas. News reporters and photographers covering several high-profile criminal cases in 2001 and 2002 were forced to defend themselves against prosecutors' subpoenas and threats of subpoenas.  Now that Rule 509 has been adopted, it is likely that courts will be much more willing, indeed obligated, to broadly protect both confidential and non-confidential newsgathering information. 

Authors' note: The authors would like to thank Professor Edward Carter, Brigham Young University, who provided valuable research and writing assistance on this project.