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Arkansas

Reporters Privilege Compendium

Philip S. Anderson, Esq.
Alec Gaines, Esq.
Williams & Anderson PLC
111 Center Street, Suite 2200
Little Rock, AR 72201
(501) 372-0800

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I. Introduction: History & Background

Arkansas has had a statute in effect since 1937 specifically shielding reporters and others involved in news gathering from being required to reveal the identities of their confidential sources. The statute is fairly broad and has been interpreted to encompass both criminal and civil proceedings. The statute has undergone few changes since Arkansas voters adopted it as an initiated act in 1936. The statute was amended in 1949 to bring radio broadcasters within the law's protection and, in 2011, the statute was amended to provide protections to television stations and “internet news sources.”

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II. Authority for and source of the right

The privilege afforded to reporters under Arkansas law from having to reveal their confidential sources is a matter of statute, and, as three circuit courts have concluded, a right existing under Article 2, Section 6 of the Arkansas Constitution as well as the First Amendment to the Constitution of the United States. See Ark. Code Ann. § 16-85-510; State v. Bernard, No. 94-2133 (Cir. Ct. of Pulaski County, Ark. filed Feb. 21, 1995); First Commercial Trust v. Aldridge, No. 94-3006 (Cir. Ct. of Pulaski County, Ark. filed Dec. 12, 1994); State v. Echols, No. CR 93-450A (Cir. Ct. of Craighead County, Ark. filed Mar. 11, 1994); see also Philip S. Anderson, The Reporter's Privilege in Arkansas: An Overview With Commentary, 29 U. Ark. Little Rock L. Rev. 1, 7–11 (2006); but see Susan Webber Wright, A Trial Judge's Ruminations on the Reporter's Privilege, 29 U. Ark. Little Rock L. Rev. 103, 115–17 (2006).

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A. Shield law statute

Arkansas's shield law is codified at Ark. Code Ann. § 16-85-510. The statute states in its entirety:

Before any editor, reporter, or other writer for any newspaper, periodical, radio station, television station, or internet news source, or publisher of any newspaper, periodical, or internet news source, or manager or owner of any radio station shall be required to disclose to any grand jury or to any other authority the source of information used as the basis for any article he or she may have written, published, or broadcast, it must be shown that the article was written, published, or broadcast in bad faith, with malice, and not in the interest of the public welfare.

The law was originally approved by Arkansas voters as Initiated Act No. 3 of 1936. The reporters' shield provision was part of a larger criminal procedure reform package initially proposed by the Arkansas Bar Association's Committee on Law and Law Reform. See Robert A. Leflar, The Criminal Procedure Reforms of 1936--Twenty Years After, 11 Ark. L. Rev. 117 (1957). In 1934, Governor J.M. Futrell appointed a committee to study and draft proposed changes to Arkansas's criminal law. In 1935, the blue-ribbon committee proposed an amendment to the Arkansas Constitution to the General Assembly. Id. at 118. After the Legislature made significant changes to the proposed amendment, the bar association proposed an initiated act to be placed directly before the voters, bypassing the Legislature. This initiative included the shield law. Id. at 126. The reporters' shield was seen as a necessary component to the criminal law reform effort in two distinct ways. First, the blue-ribbon panel was convinced that "undercover criminal activities [that] might have political or economic protection in a community were much more likely to be brought to light, and ultimately prosecuted, if news reporters were given the freedom" to protect confidential sources. Id. Secondly, and in a much more politically calculating vein, the drafters may have hoped that inclusion of the reporters' shield would help to ensure the newspapers' support for the act as a whole. See id. at 126 n.42. Voters passed the act overwhelmingly in November, 1936 by a vote of 121,310 votes in favor of the act to only 29,181 against. The act went into effect in January, 1937. As an act adopted by the voters, it can be amended or repealed only by a two-thirds vote of all of the members elected to each house of the Arkansas General Assembly. Ark. Const. amend. 7.

While the original version of the shield law covered only the print medium, the Legislature amended the act in 1949 to include radio broadcasters.  In 2011, the Legislature amended the title of the act to “disclosure of media sources” and added television stations and internet news sources to the list of protected entities.

The only reported Arkansas case to address § 16-85-510 is Saxton v. Arkansas Gazette Co., 264 Ark. 133, 569 S.W.2d 115 (1978). In that case, the Arkansas Supreme Court made clear that, while the act specifically mentions protecting source disclosures before a grand jury in the course of a criminal proceeding, the language "or to any other authority" makes the statute applicable to civil cases as well. Id. at 136, 569 S.W.2d at 117. The court also stated that leading United States Supreme Court cases such as Branzburg v. Hayes, 408 U.S. 665 (1972), and others that have not found a constitutional right for a reporter to protect a source, are inapplicable in Arkansas courts because of the state's shield law. Saxton, 264 Ark. at 135-36, 569 S.W.2d at 116-17.

Two federal judges have held that the statute is not controlling in a federal proceeding based solely on federal law. See United States v. Hively, 202 F. Supp.2d 886 (E.D. Ark. 2002) (denying a motion to limit newspaper reporter's testimony); In re Grand Jury Subpoena Am. Broad. Co., Inc., 947 F. Supp. 1314 (E.D. Ark. 1996) (denying a motion to quash federal grand jury subpoena). Another federal judge in a diversity case governed by Arkansas law required a television broadcaster to turn over video outtakes to plaintiffs in a defamation and invasion of privacy lawsuit, noting that the Arkansas shield law did not apply because no sources of information would be revealed from that disclosure. See Williams, 96 F.R.D. at 658.  Recently, a federal judge refused to force a reporter to disclose information about an alleged meeting between the reporter and the defendant on the basis that plaintiff could not show the information sought was unavailable from another source, in this case, the defendant.  Singer v. Harris, 2016 WL 10459386, Case No. 4:15CV00408 BSM (E.D. Ark. May 16, 2016)

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B. State constitutional provision

The Arkansas Constitution does not contain an express reporters' shield privilege. The Declaration of Rights, Ark. const., art 2, § 6, states in part:

The liberty of the press shall forever remain inviolate. The free communication of thoughts and opinions is one of the invaluable rights of man; and all persons may freely write and publish their sentiments on all subjects, being responsible for the abuse of such right.

The only reported case addressing the Arkansas constitutional free press provision in the context of a reporter's shield was a federal case applying federal law; the court held that Art. 2, § 6 did not shield a news organization from having to turn over video footage and transcripts to a federal grand jury. See In re Grand Jury Subpoena Am. Broad. Co. Inc., 947 F. Supp. 1314 (E.D. Ark. 1996) (holding that state law privileges do not apply to a federal grand jury subpoena).

Some state trial courts have recognized, under the state and federal constitutions, a qualified privilege in favor of the media engaged in the newsgathering process, which shields materials from subpoena absent a showing by the party seeking disclosure that 1) the materials are relevant to a claim or defense in the litigation, 2) there is a compelling need for disclosure necessary to override the constitutional protection, and 3) the information is unavailable from any other source that does not place the same chill on the freedom of the press. See Order, State v. Bernard, No. 94-2133 (Pulaski County Cir. Ct., 2d Div., Feb. 21, 1995); Order, First Commercial Trust v. Aldridge, No. 94-3006 (Pulaski County Cir. Ct., 2d Div., Dec. 12, 1994); Order, State v. Echols, No. CR 93-450A (Craighead County Cir. Ct., Mar. 11, 1994).

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C. Federal constitutional provision

No reported case in Arkansas has held that the United States Constitution creates a reporter's privilege. In a concurring opinion, an Arkansas Supreme Court justice, who is now a federal district judge in Arkansas, said that such a privilege should be read into the First and Fourteenth Amendments to the Constitution. See Saxton, 264 Ark. at 139-41, 569 S.W.2d at 119 (Howard, J., concurring). However, the Arkansas Supreme Court has not adopted this position. Federal courts determine whether the reporter's privilege is granted under the First Amendment according to the type of case. See, e.g., United States v. Hively, 202 F. Supp.2d 886, 890 (E.D. Ark. 2002) (refusing to recognize First Amendment reporter's privilege in grand jury criminal proceeding); Richardson v. Sugg, 220 F.R.D 343, 347 (E.D. Ark. 2004) (recognizing reporter's privilege in civil case under First Amendment); Singer v. Harris, 2016 WL 10459386, at *2, Case No. 4:15CV00408 BSM (E.D. Ark. May 16, 2016) (recognizing First Amendment reporter’s privilege).

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D. Other sources

There are no other sources of a reporter's privilege in Arkansas, such as court rules, attorney general opinions, or administrative procedures.

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III. Scope of protection

A. Generally

The Arkansas shield law appears to be quite broad, based both on the language of the statute and the only Arkansas case to address the statute. The statute protects reporters from being required to divulge the names of sources in criminal proceedings, under the plain language of the statute, and in civil matters, under an interpretation by the Arkansas Supreme Court.

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B. Absolute or qualified privilege

The privilege is a qualified privilege. The manner in which the statute is drafted seems to presume, by the dependent clause at the beginning of the text, that a reporter can be made to divulge a source under certain circumstances. Ark. Code Ann. § 16-85-510. However, before a reporter or others protected by the statute can be made to divulge a source of information, the party seeking such disclosure must show that the article containing the information was "written, published, or broadcast in bad faith, with malice, and not in the interest of the public welfare." Thus, the privilege applies unless an article was written, published or broadcast under the circumstances exceeding the "actual malice" standard adopted by the U.S. Supreme Court. See New York Times v. Sullivan, 376 U.S. 254 (1964). In routine circumstances, a local prosecutor could not require a reporter to divulge the name of a source relating to a case the prosecutor was investigating. Similarly, a civil litigant could not compel discovery of a confidential source.

It should be noted that the federal judge in Williams, supra, a diversity case applying Arkansas law and decided five years after Saxton, in predicting how the Arkansas Supreme Court might construe the statute in a future libel lawsuit, stated that he was "persuaded that the Arkansas courts would be guided by precedent in which other courts have held that the newsman's privilege . . . must give way, even as to confidential sources, in a libel case where such is necessary for a plaintiff to establish actual malice or reckless disregard for the truth on a given defendant's part." Williams, 96 F.R.D. at 665. That prediction has yet to be put to the test before the Arkansas Supreme Court. In Williams, the court granted the plaintiffs' motion in a libel and invasion of privacy case against a television network to compel discovery of videotape outtakes for an investigative story on unnecessary surgery and malpractice. Id. at 660-61. The court held that outtakes were not protected under the Arkansas shield law because they did not involve disclosure of a source. Id. at 665 (emphasis supplied). The court held that disclosure was necessary to enable the plaintiffs to try to prove actual malice or reckless disregard of the truth and that a qualified privilege did not extend to the outtakes. Id.

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C. Type of case

1. Civil

In Saxton, supra, the Arkansas Supreme Court interpreted the phrase "or to any other authority" to make the statute equally applicable to reporters subpoenaed in civil cases. Although the Eighth Circuit has not decided whether the qualified privilege extends to civil cases, the federal district court in Arkansas has provided guidance. U.S. District Judge William R. Wilson, Jr., adopted, with a minor change, the proposed findings and recommended disposition by U.S. Magistrate Judge John F. Forster, Jr., holding that the qualified reporter's privilege extended to civil cases. See Richardson v. Sugg, 220 F.R.D. 343 (E.D. Ark. 2004); see also Philip S. Anderson, The Reporter's Privilege in Arkansas: An Overview With Commentary, 29 U. Ark. Little Rock L. Rev. 1 (2006); but see Susan Webber Wright, A Trial Judge's Ruminations on the Reporter's Privilege, 29 U. Ark. Little Rock L. Rev. 103, 115 (2006) (questioning the wisdom of applying a constitutionally based, qualified privilege with uncertain boundaries).

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2. Criminal

The reporter's shield statute in Arkansas had its genesis in popularly initiated criminal-law reform in the hope that increased protection for reporters' confidential sources would foster a climate of increased investigative reporting into crime and shine a light on public officials or private organizations that might turn a blind eye to these crimes. There are no appellate court cases, however, in which the statute was at issue in the criminal context.

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3. Grand jury

Because the statute specifically mentions grand juries, it seems unlikely that there would be a different, or lower, level of protection of sources with respect to grand jury proceedings. There are no appellate court cases construing the statute in the context of a grand jury proceeding. The statute, however, does not apply to federal grand jury subpoenas. In re Grand Jury Subpoena Am. Broad. Co., 947 F. Supp. 1314 (E.D. Ark. 1996).

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D. Information and/or identity of source

The statute specifically mentions that the "source of the information" is protected absent the showing of bad faith, malice, or action contrary to the interest of the public welfare. In Saxton, supra, the only case to come before the Arkansas Supreme Court, the issue was whether the reporter herself had to disclose the source of her information.

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E. Confidential and/or nonconfidential information

The statute does not contain the word "confidential," nor does it specifically differentiate between confidential and non-confidential sources. In Saxton, the disclosure of the identity of a confidential source was at issue. The Arkansas Supreme Court has not announced whether the privilege applies to sources deemed non-confidential.

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F. Published and/or non-published material

The statute specifically protects sources who provide information for articles that reporters "may have written, published, or broadcast." There are no supreme court cases that discuss whether the privilege extends to articles written but not published or stories produced but not broadcast, or to stories researched but never written or produced. However, the Arkansas Supreme Court has a history of according the media a high level of free-press protections. See, e.g., Butler v. Hearst-Argyle Television, 345 Ark. 462, 49 S.W.3d 116 (2001); Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 771, 20 S.W.3d 301 (2000); Pritchard v. Times Southwest Broadcasting, 277 Ark. 458, 642 S.W.2d 877 (1982); Arkansas Gazette Co. v. Lofton, 269 Ark. 109, 598 S.W.2d 745 (1980).

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G. Reporter's personal observations

The statute does not mention whether a reporter can be compelled to testify or give information about an event to which the reporter was an eyewitness and no Arkansas Supreme Court cases have addressed this specific issue. Although reporters have testified in Arkansas courts, see Bailey v. State, 238 Ark. 210, 381 S.W.2d 467 (1964) (where two reporters testified in a motion hearing as to whether a rape suspect could receive a fair trial), there is no indication that the reporters involved attempted to assert a privilege against being required to offer testimony. A federal judge recently held that a reporter should not be compelled to testify where the information sought is available from another source, the defendant in that particular case.  Singer v. Harris, 2016 WL 10459386, Case No. 4:15CV00408 BSM (E.D. Ark. May 16, 2016).

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H. Media as a party

Neither the statute nor any Arkansas Supreme Court cases indicate whether the application of the shield law differs if a news organization is a party to the litigation. In Saxton, the only reported Arkansas Supreme Court case dealing specifically with the shield law, the reporter and her newspaper were named as defendants and were not required to disclose any sources. Conversely, in Williams, the American Broadcasting Co. was a named defendant and was required to turn over video outtakes to allow the plaintiffs to attempt to prove their claims of defamation and invasion of privacy.

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I. Defamation actions

There are no cases in Arkansas that discuss whether failing to disclose a confidential source in the context of a defamation case subjects the non-compliant reporter or the reporter's news organization (when the organization is a party) to a greater punishment than defamation. Failure to testify upon service of a subpoena is considered contempt of court. Ark. R. Civ. P. 45(g). Sanctions for that failure are within the discretion of the trial court.

The statute's language contemplates that the privilege will not apply in any case, defamation or otherwise, in which the party seeking disclosure makes the requisite showing that the article was written in bad faith, with malice, and not in the interest of the public welfare.

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IV. Who is covered

The statute expressly covers editors, reporters, or other writers for any newspaper, periodical, radio station, television station, or internet news source.

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A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

The statute does not give a definition of "reporter." No other statute or case offers such a definition.

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b. Editor

No statutes or cases define "editor."

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c. News

The shield law does not define "news."

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d. Photo journalist

No statute or case has defined "photo journalist."

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e. News organization/medium

The statute broadly applies to “media sources” and specifically cites newspapers, periodicals, radio stations, television stations, and internet news sources.

In Ragland v. K-Mart Corp., 274 Ark. 297, 624 S.W.2d 430 (1981), the Arkansas Supreme Court defined "newspaper" in the context of an advertising and sales tax case. The court stated that

The definition of a newspaper . . . is to be taken in its popular sense, which is one to which the general public would resort in order to be informed of the news and intelligence of the day, and which is published at stated intervals and carries reports of those happenings of general importance and interest to the ordinary individuals. "Newspaper" has also been defined as "a paper that is printed and distributed daily, weekly, or at some other regular and usually short interval and that contains news, articles of opinion (as editorials), features, advertising, or other matter regarded as of current interest."

Id. at 299, 624 S.W.2d at 431 (quoting Continental Life Ins. Co. v. Mahoney, 185 Ark. 748, 49 S.W.2d 731 (1932)).

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2. Others, including non-traditional news gatherers

No cases available have considered whether the shield law applies to non-traditional news gatherers other than those listed in the statute.

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B. Whose privilege is it?

The statute states that the privilege applies to "any editor, reporter, or other writer for any newspaper, periodical or radio station, or publisher of any newspaper or periodical, or manager or owner of any radio station." In Saxton v. Arkansas Gazette Co., 264 Ark. 133, 569 S.W.2d 115 (1978), the Arkansas Supreme Court noted in dicta that "a number of states, including Arkansas, have provided editors and news reporters with a statutory privilege." Id. at 135, 569 S.W.2d at 116. When interpreting a statute, the court will construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Collins v. Excel Specialty Products, 347 Ark. 811, 69 S.W.3d 14 (2002).

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V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

There are no special rules regarding the service of a subpoena that apply exclusively to service of subpoenas on members of the news media. Under the Arkansas Rules of Civil Procedure, there are two distinct deadlines under which a subpoena must be served, depending on the type of proceeding. For appearance at a deposition, the witness must be properly served at least five business days prior to the date of the deposition, unless the court grants leave for the subpoena to be issued within that period. Ark. R. Civ. P. 45(e). For appearance at a trial or hearing, the subpoena must be served at least two days prior to the trial or hearing, unless the court grants leave for the subpoena to be served within that time. Ark. R. Civ. P. 45(d).

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2. Deposit of security

Arkansas does not require any security deposit, per se, to procure the testimony of a witness, but court rules state that a subpoena must be accompanied by a tender of a witness fee of thirty dollars ($30.00) per day for attendance at trial or a deposition, plus a travel allowance of twenty-five cents ($0.25) per mile. Ark. R. Civ. P. 45 (d)-(e). If property is ordered to be kept with the court, the sheriff of the county where the action is pending is charged with the responsibility of safe-keeping. Ark. Code Ann. § 16-63-102.

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3. Filing of affidavit

Arkansas's shield law does not require that the party serving a subpoena for a reporter's testimony or materials must first file an affidavit or other sworn statement indicating why the testimony or materials are needed. However, before a court will compel a reporter to disclose a confidential source, the party seeking such disclosure must make a showing that the article in which the source's information was used was written in bad faith, with malice and was not in the interest of the public welfare. Saxton, supra.

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4. Judicial approval

Under Arkansas rules, there is no requirement for judicial approval to issue a subpoena. Any party may request a subpoena for witnesses or documents to be produced at trial or for a deposition; upon such a request, the court clerk "shall issue" such a subpoena. Subpoenas may also be issued by an attorney licensed to practice in Arkansas in any case in this state in which the attorney is counsel of record. Ark. R. Civ. P. 45 (a), (d)-(e).

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5. Service of police or other administrative subpoenas

Police in Arkansas generally do not have the power of subpoena. An exception to this general rule, however, permits the director of the Arkansas State Police, whose department incorporates the state fire marshal, or the director's deputy to issue a subpoena to compel the attendance of witnesses to testify at an inquiry into whether a crime or other offense has been committed in connection with any fire and for the production of books, records, papers, other writings, or things deemed material to the inquiry. Ark. Code Ann. § 12-13-112. If a subpoena is disobeyed, the state police director or his deputy may ask the circuit court of the jurisdiction to compel the attendance and testimony of witnesses and production of books, papers, written material, and things incident to the inquiry. The circuit court is empowered to punish as a contempt any disobedience or refusal to obey such a subpoena. Id. Administrative agencies also have subpoena power. See Ark. Code Ann. § 25-15-104.

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B. How to Quash

In general, a person subpoenaed may move 1) to quash or modify the subpoena if it is unreasonable or oppressive, or 2) to require that the person on whose behalf the subpoena is issued pay the reasonable cost of production of documents or other materials. The motion must be made promptly and, in any event, before the time specified in the subpoena for compliance. Ark. R. Civ. P. 45(b).

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1. Contact other party first

There is no law or court rule in Arkansas that requires a party moving to quash a subpoena first notify the party issuing the subpoena of the intent to move to quash. However, in Arkansas, a spirit of professional courtesy exists within much of the legal community, and common practice is to confer with counsel who served the subpoena.

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2. Filing an objection or a notice of intent

If served with a subpoena duces tecum to produce documents or materials at a deposition, a witness may file a written objection to the inspection or copying of such documents. If an objection is made, the party issuing the subpoena may not inspect or copy the materials except upon a court order. If the party issuing the subpoena does move for such an order, that party must give notice to the objecting deponent. Ark. R. Civ. P. 45(e).

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3. File a motion to quash

a. Which court?

The motion to quash should be filed in the court hearing the action. Ark. R. Civ. P. 45.

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b. Motion to compel

A person served with a subpoena who objects to the subpoena should promptly move to quash it and should not wait for a motion to compel. Failure to obey a subpoena can lead to a contempt citation and possibly an arrest warrant. Ark. R. Civ. P. 45(g).

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c. Timing

A motion to quash a subpoena duces tecum should be filed within ten (10) days after receiving the subpoena or before the time stated for compliance if that time is fewer than ten days. Ark. R. Civ. P. 45(e).

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d. Language

There is no stock language or preferred text for a motion to quash.

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e. Additional material

In most cases, the subpoena will be attached as an exhibit to a motion to quash. Factual matters are established by an affidavit filed as an exhibit to the motion.

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4. In camera review

a. Necessity

There is no statute, court rule or case law that directs a court to review material in camera before ruling on a motion to quash.

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If the reporter or publisher consents to in camera review, a stay pending appeal is not automatic in the event of an adverse ruling. The reporter and the reporter's attorneys are encouraged to be prepared to act quickly.

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c. Consequences of refusing

If the court orders an in camera review and the reporter or publisher does not consent, it is possible that the reporter or publisher could be subject to a contempt citation, which is appealable as a final order under the Arkansas Rules of Appellate Procedure. However, a motion to quash or for a protective order usually will protect the reporter or publisher from a finding of contempt.

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5. Briefing schedule

The regular briefing schedule for all motions permits a response to be filed within ten (10) business days after service of the motion, and a reply to the response to be filed within five (5) business days after service of the response. The practice, however, is to file the motion and supporting memorandum immediately upon service of the subpoena. A hearing is usually scheduled within a few days, and the response and reply are filed within the time permitted before the hearing.

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6. Amicus briefs

Amicus curiae briefs are allowed in appeals to the Arkansas Supreme Court and the Arkansas Court of Appeals with the permission of the respective court. Rules of Ark. Sup. Ct. and Ct. App. 4-6. Motions requesting permission should state the reasons why the brief is necessary. Id. Amici attorneys are not allowed to present oral arguments, nor are they allowed to petition for rehearings in their own names. Id. Briefs supporting the appellant's position or which are neutral are due when the appellant's brief is due; those supporting the appellee's position are due when the appellee's brief is due. It is customary to file the motion for leave to file an amicus brief when the amicus brief is filed.

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

The evidentiary standard for a party seeking disclosure to prove bad faith, malice, and not in the interest of the public welfare is by a preponderance of the evidence. The burden of proof is on the party seeking disclosure. See Saxton v. Arkansas Gazette Co., 264 Ark. 133, 569 S.W.2d 115 (1978).

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B. Elements

1. Relevance of material to case at bar

Several trial courts in Arkansas have held, in orders quashing subpoenas, that the United States and Arkansas constitutions create a qualified privilege in favor of the media, and have applied a three-part test that a party seeking disclosure must meet: 1) the materials must be relevant to a claim or defense in the underlying litigation; 2) the information must be unavailable from any other source less chilling of the free-press provisions; and 3) there is a compelling need for disclosure sufficient to override the privilege. See Order, State v. Bernard, No. 94-2133 (Pulaski County Cir. Ct., 2d Div., Feb. 21, 1995); Order, First Commercial Trust v. Aldridge, No. 94-3006 (Pulaski County Cir. Ct., 2d Div., Dec. 12, 1994); Order, State v. Echols, No. CR 93-450A (Craighead County Cir. Ct., Mar. 11, 1994).

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2. Material unavailable from other sources

Under the Saxton rule, the party seeking disclosure is required to demonstrate a reasonable effort to discover the information from other sources before asserting the need to breach the privilege. In Saxton, the court noted that the trial court properly denied the plaintiff's motion to compel discovery in part because he failed "to make a reasonable effort to determine the informant's identity" on his own. Saxton, 246 Ark. at 136, 569 S.W.2d at 117.

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a. How exhaustive must search be?

The Arkansas Supreme Court has required a "reasonable effort" to discover the conditionally privileged information from other sources. It has not addressed the issue of an exhaustive search.

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b. What proof of search does a subpoenaing party need to make?

There is no precedent stating what evidence a party must show to prove a "reasonable effort" to determine a source's identity prior to issuing a subpoena to a reporter.

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c. Source is an eyewitness to a crime

The Arkansas Supreme Court has not addressed whether the information obtained from a source who was an eyewitness or participant in a crime is by definition "unavailable" from any other source because it is unique eyewitness evidence.

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3. Balancing of interests

No case has expressly articulated a balancing of interests test. However, the shield statute seems to indicate a balancing of interests between the confidentiality of the reporter's sources and the other party's interest in disclosure, particularly in the context of a defamation lawsuit. See Williams, 96 F.R.D. at 665.

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4. Subpoena not overbroad or unduly burdensome

There is no specific requirement that a court look to whether the subpoena is overly broad or unduly burdensome, but such a determination is within the court's discretion and may be raised by the reporter or publisher. In Ruiz v. State, 265 Ark. 875, 582 S.W.2d 915 (1979), the Supreme Court affirmed the trial court's quashing a subpoena duces tecum issued to the Associated Press, in the course of a change of venue motion in a capital murder case, to produce articles its reporters had written. The Court stated that the evidence showed that the AP had published between 250 and 300 stories on the case that went to all of its subscribers in the state. The court ruled that requiring the AP to accumulate all of those stories, which the AP claimed would take more than 40 hours, would be overly burdensome, particularly in light of the fact that the stories would have been repetitive and of no real value to the jury. Id. at 888-89, 582 S.W.2d at 921.

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5. Threat to human life

The Arkansas Supreme Court has not addressed whether the courts must weigh whether the matter subpoenaed involves a threat to human life.

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6. Material is not cumulative

A subpoena is more likely to be quashed if the material or information sought would be merely repetitive or cumulative. See Ruiz, supra.

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7. Civil/criminal rules of procedure

The rules for challenging a subpoena are the same regardless of the ground on which it is challenged, including the grounds that it is overbroad, unduly burdensome or frivolous. A motion to quash a subpoena duces tecum should be filed within ten (10) days after receiving the subpoena or at any time before the time stated for compliance if that time is fewer than ten days. Ark. R. Civ. P. 45(e). A motion to quash a subpoena to compel testimony also should be filed in a timely manner. The same applies whether the matter is a civil case or a criminal case.

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8. Other elements

The Arkansas Supreme Court has not enunciated any other elements that must be met before the privilege can be overcome.

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C. Waiver or limits to testimony

1. Is the privilege waivable?

No cases specifically address whether the privilege is waivable. However, an inference that the reporter may waive it can be drawn from Saxton v. Arkansas Gazette Co., 264 Ark. 133, 569 S.W.2d 155 (1978). There, the court ruled that the reporter had not waived the privilege when she voluntarily disclosed the identity of someone she thought was her anonymous source, which later was found to be incorrect, to her editor and a deputy prosecuting attorney on the condition that the name be kept under the strictest confidence.

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2. Elements of waiver

a. Disclosure of confidential source's name

The statute clearly extends the privilege to editors, see Ark. Code Ann. § 16-85-510, and Saxton indicates that a reporter who reveals the name of a confidential source to her editor has not by that act waived the privilege. See Saxton, 264 Ark. at 136-37, 569 S.W.2d at 117. Indeed, revealing the name of a confidential source to one's editor can be seen as a duty to one's employer imposed on the reporter. See generally Manson v. Little Rock Newspapers, Inc., 42 F. Supp. 2d 856 (E.D. Ark. 1999) (an employment-discrimination case).

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b. Disclosure of non-confidential source's name

No cases state whether the disclosure of non-confidential sources is sufficient to waive the privilege. Moreover, it seems unlikely that the court would construe such an act to constitute a waiver in light of the plain language of the statute and the court's reasoning in Saxton.

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c. Partial disclosure of information

There are no cases addressing whether a reporter who has partially disclosed confidential information has waived the privilege as to the remaining, undisclosed information.

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d. Other elements

There are no cases in which the court has addressed any other circumstances by which the reporter will be deemed to have waived the privilege through the reporter's own actions.

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3. Agreement to partially testify act as waiver?

There are no cases in which the Arkansas Supreme Court has addressed whether a reporter's agreement to provide limited testimony is deemed a waiver of the privilege. Trial court judges usually require a subpoenaed reporter to confirm that the reporter's article is true and accurate as published but will not permit any party to question the reporter beyond that point, and the testimony required by the trial judge is not deemed to be a waiver of the privilege.

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VII. What constitutes compliance?

A. Newspaper articles

Under the Arkansas Rules of Evidence, newspaper articles are deemed to be self-authenticated so that no extrinsic evidence of authenticity is necessary to prove that the article is what it purports to be. Ark. R. Evid. 902(6).

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B. Broadcast materials

There are no cases or court rules that set out special requirements regarding the use or authentication of broadcast materials at trial. In the absence of special requirements, the use of the materials should be governed by general evidentiary rules and standards for admissibility.

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C. Testimony vs. affidavits

There are no cases stating whether there must be direct witness testimony or whether a sworn affidavit will suffice to confirm that a published article is accurate and true as published.

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D. Non-compliance remedies

1. Civil contempt

The Arkansas Legislature rewrote Ark. Code Ann. § 16-43-206 and removed the punishments for a civil contempt citation. See Acts of 2005, Act 1994, § 315. The statute now states:

A witness imprisoned or fined for contempt by an officer before whom his or her deposition is being taken may apply to the circuit judge, who shall have power to discharge the witness if it appears that the imprisonment is illegal.

The amended statute creates uncertainty as to the current punishments for a civil contempt citation.

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a. Fines

Fines for civil contempt under the statute are capped at thirty dollars.

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b. Jail

Persons imprisoned for failure to testify can remain there for as long as they refuse to comply with the subpoena or until there is a final disposition of the case in which testimony was sought.

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2. Criminal contempt

The purpose of criminal contempt is to preserve the power of the court and vindicate its dignity, and punish a person for disobeying a court order. See Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000). The criminal contempt statute, Ark. Code Ann. § 16-10-108(b)(1), states that the punishments for a criminal contempt citation “is a class C misdemeanor” which carries a maximum sentence of thirty days and a maximum fine of $500.00.  See Ark. Code Ann. §§ 5-4-201, -401.   There are no reported cases where a reporter has been subject to a criminal contempt citation in Arkansas.

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3. Other remedies

There are no reported cases in Arkansas where a court has imposed an alternative remedy, such as default judgments against the media, presumptions of malice or bad faith, or presumptions that there is no source.

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VIII. Appealing

A. Timing

1. Interlocutory appeals

Generally, an order denying a protective order or motion to quash a subpoena is not a final order for appeal purposes. See Ark. R. App. P. Civ. 2(a); see also Matter of Badami, 309 Ark. 511, 831 S.W.2d 905 (1992) (stating that the denial of the executive director of state Judicial Discipline and Disability Commission for a protective order prohibiting disclosure of confidential documents to the prosecuting attorney was not a final order from which an appeal could be taken).  However, the Arkansas Rules of Civil Procedure and the Arkansas Rules of Appellate Procedure were recently amended to allow for an interlocutory appeal when the defense to production of discovery is any privilege recognized by Arkansas law.  See Ark. R. Civ. P. 26(f); Ark. R. App. P. Civ. 2(f).

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2. Expedited appeals

Under Arkansas procedure, when a judge enters an order that is not appealable, the objecting party may petition the Arkansas Supreme Court for a writ of certiorari to correct the proceeding in the lower court where it is apparent from the face of the record that there has been a plain, clear and gross abuse of discretion by the trial court and an appeal would not provide an adequate remedy. See, e.g., Zimmerman, supra, at 777, 20 S.W.3d at 304; Lupo v. Lineberger, 313 Ark. 315, 318, 855 S.W.2d 293, 295 (1993). A party served with a subpoena also may petition the Court for a writ of prohibition if the lower court is wholly without jurisdiction. See Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 22, 931 S.W.2d 426, 429 (1996).

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B. Procedure

1. To whom is the appeal made?

Ark. R. App. P. Civ. 2(f) states that when the defense to production of information is any privilege recognized by Arkansas law the Supreme Court may, in its discretion, permit an appeal. Most appeals involving media parties are heard by the Supreme Court because they involve issues under the Arkansas Constitution. Media cases can also reach the Supreme Court by petitions for extraordinary writs, which must be filed in the Supreme Court. See Ark. Sup. Ct. R. 1-2; Ark. const. art 7, § 4.

In November 2000, Arkansas voters approved Amendment 80 to the Arkansas Constitution, which revised the judicial article. One significant change in the amendment was the abolition of separate courts of law and equity. Under Amendment 80, circuit courts are the basic trial courts of original jurisdiction. Matters decided in the circuit courts are appealable as a matter of right to either the Court of Appeals or the Supreme Court, pursuant to Rule 1-2. District courts are inferior trial courts with limited jurisdiction. Cases heard by district courts are appealable by right to the circuit courts for a trial de novo.

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2. Stays pending appeal

Ark. R. App. P. Civ. 2(f)(3) provides that neither the petition nor the grant of permission for an appeal automatically triggers a stay.  The party may seek a stay from either the circuit court or the Supreme Court.

 

Ark. R. App. P. Civ. 8 requires that a party seeking a stay pending appeal attach a supersedeas bond, which requires the appellant pay to the appellee all the costs and damages if the court affirms against the appellant. The supersedeas bond must be of sufficient amount as to cover all of the costs and damages, including interest, that may result from the appeal. See Jameson v. Johnson, 343 Ark. 272, 33 S.W.3d 140 (2000). Failure to submit the supersedeas bond with the motion seeking a stay pending appeal will result in the motion's being denied without consideration of its merits. See Wayne Alexander Trust v. City of Bentonville, 345 Ark. 577, 47 S.W.3d 262 (2001).

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3. Nature of appeal

Appeals to the appellate courts in Arkansas from a final order in a lower court are permitted as a matter of right. Petitions for extraordinary writs and interlocutory appeals are to be made to the Arkansas Supreme Court. The petitioner may also request an expedited review of the matter.

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4. Standard of review

Typically, an appellate court will not reverse a lower court's finding of fact unless that finding was clearly erroneous. The Court reviews a lower court's ruling of law de novo.

Issues of statutory construction are reviewed by the Arkansas Supreme Court de novo, as it is the court's function to interpret statutes. Ghegan & Ghegan, Inc. v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001). While the court is not bound by a lower court's ruling on a statute's meaning, in the absence of a showing that the trial court erred, the lower court's interpretation will be accepted as correct on appeal. Mayberry v. Flowers, 2002 WL 122746 (Jan. 31, 2002).

Where a party is punished for civil contempt, the appellate court will not reverse unless the trial court's order is arbitrary or against the weight of the evidence. Hart v. McChristian, 344 Ark. 656, 42 S.W.3d 552 (2001). However, where a person is held in contempt for failure or refusal to abide by a judge's order, a reviewing court is not obliged to look behind the order to determine whether it is valid. Johnson v. Johnson, 343 Ark. 186, 33 S.W.3d 492 (2000). In the case of criminal contempt, the standard of review requires the appellate court to view the record in the light most favorable to the trial judge's decision and to sustain that decision if it is supported by substantial evidence and reasonable inferences. Etoch v. Simes, 340 Ark. 449, 10 S.W.3d 866 (2000).

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5. Addressing mootness questions

The Arkansas Supreme Court has stated numerous times that it will not address moot issues except under limited circumstances. The Court has stated that its duty is to decide actual controversies and that an issue is moot when it has no legal effect on an existing controversy. Killam v. Texas Oil & Gas Corp., 303 Ark. 547, 798 S.W.2d 419 (1990). The Court will accept an appeal of a moot issue if the issues raised are likely to recur. See Camden Community Dev. Corp. v. Sutton, 339 Ark. 368, 5 S.W.3d 439 (1999). The instances in which the Court has accepted such cases, however, are rare. There are no reported cases specifically addressing a reporter's privilege once the matter in which the privilege was asserted is concluded.

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6. Relief

An appellate court can dismiss a contempt citation outright if it finds a lack of evidence to support the trial court's finding of contempt. Atkinson v. Lofton, 311 Ark. 56, 842 S.W.2d 425 (1992). The Court also can modify the punishment aspect of the contempt order. Hart v. McChristian, 71 Ark. App. 178, 36 S.W.3d 357 (2000).

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IX. Other issues

A. Newsroom searches

There are no reported Arkansas cases addressing the federal Privacy Protection Act, 42 U.S.C. § 2000aa (1994), in the context of a newsroom search or the seizure of film or videotapes.

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B. Separation orders

There is no Arkansas case law, statute or court rule that allows for a "separation order" or any other procedural device to allow a reporter who also will be a witness to remain in the courtroom to cover a proceeding once "the rule" ordering witnesses out of the courtroom has been invoked. Some news organizations have internal rules prohibiting a reporter from covering a proceeding at which he may be called as a witness.

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C. Third-party subpoenas

Part of the burden on a party seeking disclosure of a source is that he must demonstrate that he has made a reasonable effort to determine the identity of a source prior to seeking to disclosure from the reporter. Saxton, supra. There are no reported cases in Arkansas that have dealt with any attempt by a government official or party opponent to subpoena the telephone records or other records of a news organization.

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D. The source's rights and interests

There are no reported cases in Arkansas in which a source has attempted to intervene anonymously to prevent disclosure of his identity. Nor are there any reported cases in which a source has sued a media defendant once the source's identity has been revealed.

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