Comparing the new shields
From the Spring 2008 issue of The News Media & The Law, page 27.
From the Spring 2008 issue of The News Media & The Law, page 27.
| Utah | Maine | Hawaii | |
| Type of shield | Supreme Court rule | State statute | State statute |
| Effective date | Jan. 23, 2008 | July 17, 2008 (90 days after adjournment of special session) | Upon signing by governor (expected to sign, but has until July 8, 2008, to review and decide) |
| Settings in which it applies | Judicial only | Judicial, legislative, administrative or any other body with the power to issue a subpoena | Judicial, legislative, administrative or any other body with the power to compel testimony or the production of evidence |
| Who is covered by the shield | “[A] publisher, editor, reporter or other similar person gathering information for the primary purpose of disseminating news to the public.” | Determined on a case-by-case basis by a judge | Any individual “presently or previously employed or otherwise professionally associated” with any newspaper, magazine or radio or television station and any individual who can show by clear and convincing evidence that he is: (1) “regularly and materially participated in the reporting of news or information of substantial public interest,” (2) in a position that is “materially similar or identical to that of a journalist,” (3) maintains a “materially similar” interest in protecting the source or information to a journalist’s, and (4) the public interest is served by affording the shield. |
| Protection for confidential sources | Disclosure only where “person seeking the information demonstrates by clear and convincing evidence that disclosure is necessary to prevent substantial injury or death.” | Disclosure where the party seeking the information establishes by a preponderance of the evidence that the identity of the source is: (1) material and relevant, (2) critical or necessary to the maintenance of a party’s claim, defense, or proof of an issue material to the claim or defense, (3) not obtainable from any alternative source; and there is an overriding public interest in disclosure. | No disclosure unless the confidential source or information is material to the investigation, prosecution, or defense of a felony or to a civil action for defamation, and is otherwise unavailable though other sources, noncumulative, and necessary and relevant to the charge, claim or defense asserted. |
| Protection for confidential unpublished newsgathering materials | Disclosure only where the person seeking the information “demonstrates a need for that information, which substantially outweighs the interest of a continued free flow of information to news reporters.” | Same as the protections for confidential sources. | Same as the protections for confidential sources. |
| Protection for non-confidential, unpublished newsgathering materials | No disclosure so long as the journalist can show that “the interest of a continued free flow of information to news reporters outweighs the need for disclosure.” | None | Same as the protections for confidential sources. |
| Exceptions | None | None | (1) There is probable cause that the person claiming the privilege has committed, is committing or is about to commit a crime, (2) The person claiming the privilege has observed the alleged commission of a crime or (3) The information is important to help prevent imminent harm to life or public safety. |