West Virginia acting governor signs reporter shield law

Kristen Rasmussen | Reporter's Privilege | Feature | April 6, 2011

West Virginia earlier this week became the 40th state, along with the District of Columbia, to provide statutory protection for subpoenaed reporters when acting Gov. Earl Ray Tomblin signed the state shield bill.

The law will take effect on June 10.

The measure provides journalists with a nearly absolute reporter’s privilege to refuse to disclose the identity of confidential sources, and documents or other information that could identify confidential sources, in civil, criminal, administrative and grand jury proceedings. A court may compel disclosure of such information only if “necessary to prevent imminent death, serious bodily injury or unjust incarceration.”

Under the statute, a “reporter” is someone who gathers and disseminates news to the public for a portion of the person’s livelihood, suggesting that freelance journalists would be protected, while unpaid bloggers would not. The protection is not limited to specific media; as such, paid online journalists should fall under the statute. Moreover, the law specifically covers unpaid student journalists.

The legislation also mandates that existing protections afforded journalists and others under the federal and West Virginia Constitutions remain intact, a significant provision in light of courts’ general acceptance of the state Supreme Court’s articulation of a qualified reporter’s privilege in Hudok v. Henry.

Under Hudok, a reporter can be compelled to disclose his or her confidential sources or newsgathering materials only upon a clear and specific showing that the information is highly material and relevant; necessary or critical to the maintenance of the claim; and not obtainable from other available sources. An attempt to codify this protection with a bill in 2007 failed to make it out of committee.

The House bill introduced in the current term originally contained the Hudok test, but the House Judiciary Committee amended the bill to omit the qualified language.

The statutory reiteration of the Hudok holding ensures that journalists continue to be privileged to withhold their newsgathering materials, a protection not provided under the shield law, which is limited to confidential information only.

West Virginia is the first state to pass shield legislation since Kansas and Wisconsin did so last spring.