Idaho
Reporter's Privilege Compendium
Updated by Reporters Committee staff in March 2026
Compare
I. Introduction: History & Background
Idaho Governor Brad Little signed House Bill 158 into law on March 27, 2025, making Idaho the 41st state to enact a statutory reporter’s shield law. The law, titled “Media Source Confidentiality,” is codified at Idaho Code § 9-714.
Prior to the statute’s enactment, Idaho’s reporter’s privilege rested on an uncertain constitutional and common law foundation. The Idaho Supreme Court rejected the privilege in Caldero v. Tribune Publishing Co., 98 Idaho 288 (1977), before later recognizing a limited qualified privilege in In re Wright, 108 Idaho 418 (1996). Idaho was one of only ten states without a shield statute at the time H.B. 158 was introduced.
The bill was proposed by the Idaho Press Club and drafted by the Club based on shield laws in Alabama and Kentucky, and passed both chambers of the Idaho Legislature unanimously. The legislation responded to a documented rise in subpoenas seeking to compel journalists to reveal confidential sources, including at least one recent defamation trial where a news outlet was compelled to play a confidential recording in open court.
CompareII. Authority for and source of the right
CompareA. Shield law statute
Idaho Code § 9-714 is the primary statutory basis for the reporter’s privilege in Idaho. The statute provides, in full:
9-714. MEDIA SOURCE CONFIDENTIALITY. No person engaged in journalistic activities shall be compelled to disclose in any legal proceeding, trial before any court, or before any jury the source of any information procured or obtained and published in a newspaper, print publication, digital news outlet, or by a radio or television broadcasting station with which the person is engaged or employed or with which the person is connected. No such person shall be compelled to disclose unpublished information, notes, or communications obtained or created through the course of newsgathering activities, except as required by law in cases involving national security or imminent physical harm.
Idaho Code § 9-714 supersedes the prior case-by-case constitutional balancing framework as the primary vehicle for asserting the privilege, though constitutional protections under Art. 1, § 9 of the Idaho Constitution and the First Amendment remain available as supplementary bases.
CompareB. State constitutional provision
The free speech/free press provision of the Idaho Constitution, Art. 1, § 9, was recognized in In re Wright as a partial basis for a qualified reporter’s privilege. That foundation remains available as a supplementary constitutional ground, even now that Idaho Code § 9-714 has been enacted into law.
CompareC. Federal constitutional provision
Idaho initially rejected, and later recognized, a reporter’s privilege based on the First Amendment. In Caldero v. Tribune Publishing Co., 98 Idaho 288, 562 P.2d 791 (1977), the Idaho Supreme Court announced that its reading of Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) was that “no newsman's privilege against disclosure of confidential sources founded on the First Amendment exists in an absolute or qualified version.” Caldero, 98 Idaho at 294, 565 P.2d at 797. In Caldero, the Idaho Supreme Court refused to recognize a privilege that would protect a reporter from disclosing confidential sources in a libel suit brought against the reporter and his newspaper by the subject of a story.
However, the absolutist position taken by the Caldero court was first softened and then somewhat repudiated by later, differently configured, panels of the Idaho Supreme Court. Three years later, in Sierra Life Ins. Co. v. Magic Valley Newspapers, Inc., 101 Idaho 795, 623 P.2d 103 (1980), the court stated that the Caldero holding still had validity in cases in which the unpublished or confidential information was sought from a media defendant that was a defendant in the lawsuit. Sierra Life, 101 Idaho at 800, 623 P.2d at 108. However, the court also instructed that some sort of judicial scrutiny of the attempted discovery was nonetheless required--beginning with answering the question of whether the subject of the discovery (in Caldero and in Sierra Life, the identity of unnamed sources) was relevant to the case. Sierra Life, 101 Idaho at 801, 623 P.2d at 109. In doing so, the Sierra Life court encouraged judicial scrutiny of the nature of the request, to weigh the interest of the press in maintaining the secrecy of the identity of confidential sources, but couched its ruling in the terms of a discovery “relevancy” requirement. The decision reads as though the court recognized the importance of the press interests, but was unwilling to overrule Caldero.
In 1983, the court again considered a reporter's privilege case, in which it again refused to apply the reporter's privilege to protect a reporter under contempt orders from a trial court for refusal to identify the identities of confidential sources and related unpublished information in a child custody/habeas corpus proceeding. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).
In Marks, the court was preoccupied with the facts of the case, which involved a reporter's refusal to answer questions about the location of a child abducted by a parent in a custody dispute. In such a setting, the court ruled that the press interests were outweighed by the interests in ensuring the safety of the child and maintaining the sanctity of the writ of habeas corpus. In doing so, the court said that the relevancy and materiality considerations set out in Sierra Life still came into play, but the court also went further in endorsing a federal constitution based rationale for a reporter's privilege than it had done in the past, and said that it was in agreement with a statement in a federal circuit case that “[c]ompelling a reporter to disclose the identity of a source may significantly interfere with his newsgathering ability.” Marks, 105 Idaho at 568, 671 P.2d 473, 481.
Two years later, the court had a less factually troublesome case in which to consider the reporter's privilege. In In re Wright, 108 Idaho 418, 700 P.2d 40 (1985), a reporter was subpoenaed in a criminal case to testify about the identity of a confidential source interviewed in the course of writing an article about marijuana growers. The prosecution sought the reporter's testimony in order to obtain corroboration testimony against a defendant marijuana grower who had been charged based on the testimony of an accomplice. Under Idaho law, such corroboration testimony is a required element of the prosecution's burden of proof. In Wright, the Idaho Supreme Court again analyzed the potpourri of opinions in the Branzburg case, as it had done in Caldero. However, this time the court concluded that Branzburg did provide some First Amendment protection to news gathering and that the balancing test proposed by Justice Stewart in his Branzburg dissent was an appropriate starting point. Wright, 108 Idaho 418, 421, 700 P.2d 40, 43. The case was remanded to the trial court for scrutiny of the applicability of the privilege under Justice Stewart's Branzburg balancing test. Id., 108 Idaho at 423, 700 P.2d at 45. Importantly, the Wright court abandoned the attempt in earlier decisions to try to explain away the questionable holding in Caldero: “[to] the extent that Caldero holds that under no circumstances is there a qualified newsperson's privilege in Idaho which is protected by the First Amendment of the U.S. Constitution, we decline to follow it as precedent.” Wright, 108 Idaho at 422, 700 P.2d at 44.
CompareD. Other sources
A concurring opinion written by Justice Bistline in the In re Wright decision emphasized the common law in concluding that a limited reporter's privilege exists in Idaho. This concurrence remains persuasive as supplementary authority, albeit not the main source for the privilege given the enactment of Idaho Code § 9-714.
Additionally, although not a separate source of support for the privilege, special heed should be paid in Idaho to the limitations upon the scope of discovery found in the discovery rules. The Idaho decisions have given special emphasis to such limitations as a means of limiting the discovery directed at reporters, without having to invoke the reporter's privilege. The Idaho Rules of Evidence (I.R.E. 510) continue to govern waiver of privileges generally.
CompareIII. Scope of protection
CompareA. Generally
Idaho Code § 9-714 establishes two distinct protections: (1) the identity of sources whose information was published in a covered media outlet; and (2) unpublished information, notes, or communications created through newsgathering activities. The statute is notably broader than the prior case law in several respects: it provides protection for both published and unpublished material; it applies to digital news outlets in addition to traditional print and broadcast media; and it does not limit protection to confidential sources.
The statute contains one express exception: disclosure may be compelled “as required by law in cases involving national security or imminent physical harm.” This replaces the open-ended Branzberg balancing test as the primary standard, providing a stronger baseline protection.
CompareB. Absolute or qualified privilege
The statute is best characterized as a qualified privilege with a defined exception (in the case of unpublished source material). It provides strong, presumptive protection that may be overcome only in limited circumstances involving national security or imminent physical harm. This is a substantially higher bar than the prior Branzburg balancing test, under which Idaho courts had wide discretion to weigh the interest in disclosure against press interests on an ad hoc basis.
CompareC. Type of case
Compare1. Civil
The statute applies broadly to “any legal proceeding” and “trial before any court,” which encompasses civil cases. Unlike prior Idaho case law – which tended to disfavor the privilege when the media entity was a party in a civil suit – Idaho Code § 9-714 contains no such limitation. Reporters and media entities in civil defamation cases, for example, now have a clear statutory basis for resisting compelled disclosure of sources and unpublished materials.
Compare2. Criminal
The statute applies equally to criminal proceedings. The prior case law was hostile to the privilege in criminal cases, but Idaho Code § 9-714 imposes no distinction between civil and criminal matters. The sole exception (national security or imminent physical harm) applies in any case type.
Compare3. Grand jury
Idaho Code § 9-714 covers “any legal proceeding” and “before any jury,” which appears to indicate that the statute encompasses grand jury proceedings. No Idaho cases have considered the issue since the enactment of Idaho Code § 9-714, though the statutory language appears to provide a stronger basis for resisting grand jury subpoenas than the prior constitutional framework.
CompareD. Information and/or identity of source
Idaho Code § 9-714 expressly protects both the identity of sources and unpublished newsgathering material. The source identity protection applies to information “published” in covered outlets. The unpublished material protection is broader and applies to “unpublished information, notes, or communications obtained or created through the course of newsgathering activities.” This category encompasses notes, recordings, outtakes, draft articles, reporter emails, and other working materials.
CompareE. Confidential and/or nonconfidential information
Unlike the prior case law, which appeared to require a showing of confidentiality as a predicate for invoking the privilege, Idaho Code § 9-714 contains no such limitation. The source protection covers information that was “published,” regardless of whether the source was confidential.
CompareF. Published and/or non-published material
Both categories are protected. Source identities tied to published content are covered under the first sentence of Idaho Code § 9-714. Unpublished notes, recordings, and communications are covered under the second sentence. This appears to directly address (and nullify) the ruling in State v. Salsbury, 129 Idaho 307, 924 P.2d 208 (1996), in which the Idaho Supreme Court refused to allow the reporter's privilege sought by a television station to protect against the compelled production of aired and unaired footage of the scene of a fatal automobile accident.
CompareG. Reporter's personal observations
Idaho Code § 9-714 protects journalist’s notes, including personal observations made during the newsgathering process. The statute covers materials “created through the course of newsgathering activities,” which would include contemporaneous reporter notes about observed events. Whether a court would distinguish between a reporter’s raw observations versus their recorded communications remains to be tested by Idaho courts.
CompareH. Media as a party
Idaho Code § 9-714 does not limit or reduce the privilege when the media entity is a party to the lawsuit. Prior case law in Idaho was unfavorable to media defendants in civil suits, but the statute’s plain text draws no distinction based on party status. Reporters and media outlets that are defendants retain full protection under § 9-714.
CompareI. Defamation actions
Defamation plaintiffs who seek to compel identification of confidential sources or production of unpublished reporting materials now face the statutory shield of Idaho Code § 9-714. As detailed above, Idaho Code § 9-714 does not limit or reduce the privilege when the media entity is a party to the lawsuit, such as a defendant in a defamation lawsuit.
CompareIV. Who is covered
CompareA. Statutory and case law definitions
Compare1. Traditional news gatherers
Comparea. Reporter
Reporters employed by or working for newspapers, print publication, digital news outlets, or broadcast stations are clearly covered. The use of the phrase “engaged or employed” in Idaho Code § 9-714 is broad enough to cover both staff reporters and stringers/freelancer reporters with an organizational connection.
Compareb. Editor
Editors who engage in journalistic activities and are employed by or connected with covered outlets appear to fall within the scope of Idaho Code § 9-714.
Comparec. News
Idaho Code § 9-714 does not define “news,” but the coverage turns on whether the person was “engaged in journalistic activities” – a functional test that focuses on the nature of the work being performed.
Compared. Photo journalist
Photojournalists working for covered outlets are covered by Idaho Code § 9-714. Given the statute’s protection of “notes” and “communications” obtained through newsgathering, unpublished photographs and video footage are also likely protected as materials “created through the course of newsgathering activities.”
Comparee. News organization/medium
Covered outlets for purposes of Idaho Code § 9-714 include newspapers, print publications, digital news outlets, and radio or television broadcast stations. This is a broad enumeration that explicitly includes digital outlets – a significant modernization from Idaho’s prior case law, which focused on traditional print and broadcast media.
Compare2. Others, including non-traditional news gatherers
Idaho Code § 9-714 contains a functional approach, covering those “engaged in journalist activities” and “connected” with a covered outlet. This language appears intended to cover a broad number of news gatherers, including those that may be considered non-traditional. As the Idaho Press Club noted, this drafting was intentional”. The statute is designed to create broader protections for freelancers and non-traditional outlets as well as legacy media. A freelance journalist with an editorial relationship with a digital news outlet, for example, would likely be covered.
CompareB. Whose privilege is it?
Idaho Code § 9-714 vests the privilege in the “person engaged in journalistic activities,” which is the individual journalist. Because the protection extends to the connected news outlet as well, media organizations also appear to have standing to assert the privilege on behalf of their journalists. The privilege is best understood as belonging jointly to the individual journalist and their employing or connected organization.
CompareV. Procedures for issuing and contesting subpoenas
CompareA. What subpoena server must do
There are no special procedures imposed by Idaho Code § 9-714 on parties seeking to serve subpoenas on journalists. Compliance with pertinent Idaho court rules, both as to nature and form of the subpoena and as to the service of the subpoena (including witness fees) is required. These requirements vary slightly if the witness is also a party to the lawsuit. See Idaho Rule of Civil Procedure 45; Idaho Criminal Rule 17.
Compare1. Service of subpoena, time
There are no restrictions upon the time for service of the subpoena for a witness to appear in court, but Idaho Rule of Civil Procedure 45(c) provides that a subpoena compelling a person to produce or allow inspection of documents must be given thirty (30) days to comply. Idaho Rule of Civil Procedure 45(d) further provides that a witness subject to a subpoena may bring a motion to quash if the subpoena “fails to allow time for compliance.”
Compare2. Deposit of security
Idaho Rule of Civil Procedure 45(b)(1) requires a person serving a subpoena to also tender the fees for 1 days’ attendance and the mileage allowed by law. Rule 45(h) provides that “witness fees and expenses must be in the amounts provided for under Rule 54(d)(1).” Idaho Rule of Civil Procedure 54(d)(1)(C) provides that witnesses are entitled to $20 per day plus their travel expenses, calculated at $.30 per mile, one way, from the place of residence. Idaho Rule of Civil Procedure 45(b)(2)(C) provides that “[w]hen the subpoena is issued by the Attorney General or any prosecuting attorney or on behalf of the State or any of its officers or agencies” fees and mileage need not be tendered.
Compare3. Filing of affidavit
The server must return the subpoena with an affidavit of service stating the date and manner of service and names of persons served, unless he or she is an officer authorized by law to serve process. See Idaho Rule of Civil Procedure 45(b)(3).
Compare4. Judicial approval
No prior judicial approval is required. The clerk of the court may issue a subpoena, in blank, to a party requesting it or an attorney licenses in Idaho may issue and sign a subpoena. See Idaho Rule of Civil Procedure 45(a); Idaho Criminal Rule 17(a).
Compare5. Service of police or other administrative subpoenas
There is no special treatment of police or other administrative subpoenas under Idaho state court rules. However, the United States Attorney for the District of Idaho generally follows Department of Justice guidelines on issuance of subpoenas upon media witnesses.
CompareB. How to Quash
Compare1. Contact other party first
Even with the implementation of Idaho Code § 9-714, it is generally recommended that the party issuing the subpoena be contacted prior to filing of a motion to quash. Often, the party serving the subpoena is unaware of possible limitations upon the party's ability to compel the testimony of a media witness. As a result, after “educating” the opposing party, it is sometimes possible to convince the opposing party to withdraw the subpoena, or to narrow the scope of the subpoena. Such contact with the other party is not required by statute or the court rules, or the case law, but is often the most effective means of obtaining a result that might not be possible to obtain from the court. Indeed, to the extent that members of the media receive subpoenas, this appears to be the way most are handled.
Compare2. Filing an objection or a notice of intent
There is no requirement that an “objection” or “notice of intent” be filed.
Compare3. File a motion to quash
Amotion to quash is the primary procedural vehicle for invoking the statutory privilege. Under Idaho Code § 9-714, the journalist should assert both the source protection and, where applicable, the unpublished material protection as grounds for quashing. The motion should cite § 9-714 as the primary basis and may also rely on constitutional arguments under Art. 1, § 9 of the Idaho Constitution as supplementary grounds.
Comparea. Which court?
Ordinarily, the motion to quash is filed in the same court as that in which the case is filed, or in the same court from which the subpoena has issued, if different.
Compareb. Motion to compel
The best practice is to raise the issue by way of motion to quash, rather than wait for the opposing party to seek to compel the testimony after an initial refusal to do so, or a non-appearance. By raising the issue in the context of a motion to quash, the risk of being found in contempt and suffering the resulting monetary or imprisonment penalties prior to a judicial ruling on the substantive issues is greatly reduced.
Comparec. Timing
As a general rule, the time periods for motion practice, including motions to quash, are governed by the general motion provisions of the particular rules of the court. In Idaho state court, the pertinent rule is I.R.C.P. 7(b)(3). Idaho’s state court rules can be accessed from the Idaho State Judiciary website. See https://isc.idaho.gov/main/idaho-court-rules. In federal court for the District of Idaho, the general motion provisions of the Federal Rules of Civil Procedure apply, as well as the local rules of the district, which can be found online at the federal court website for the District of Idaho. See http://www.id.uscourts.gov. Similarly, the rules should be consulted for provisions dealing with the setting of hearings. In Idaho state court and federal court, hearing dates are generally arranged by contacting the calendar clerk assigned to work with the particular judge assigned to the case.
However, in many instances, the receipt of the subpoena in relation to the time set for the appearance of the reporter or other media witness does not allow sufficient time to meet the general time periods of the particular court rules. In those circumstances, a motion to shorten time should be filed along with the motion to quash. As a practical matter, the motion and its supporting documents should be filed sufficiently in advance of the hearing, if at all possible, so as to allow the court a reasonable period of time to consider the documents prior to the hearing. See, e.g., Idaho Rule of Civil Procedure 45(d)(1) (“The court, upon timely motion” may quash or modify a subpoena).
Compared. Language
There is no particular language required for the motion to quash. It should, however, clearly set out the relief sought by the motion, particularly if the motion seeks to preclude some portion of the requested testimony, or requested documents, rather than the entirety of what may be sought in the subpoena or subpoena duces tecum. See generally Rule 45 of the Idaho Rules of Civil Procedure and Rule 17 of the Idaho Criminal Rules.
Comparee. Additional material
There are no prohibitions upon the nature of material that might be attached to support the motion to quash, other than the general requirement that it be admissible for purposes of consideration by the court. Idaho federal court rules limit the length of briefs submitted in support of motions; however, there is no express limitation upon appendices and the like. (Local practice generally dictates that the appendices or other supporting material be filed as attachments to an affidavit, rather than simply appended to a motion or brief.) The concerns are more practical than rule-driven--i.e., the busy judge may be more annoyed than grateful for the book length appendix dumped on his or her desk a few days before a hearing on a motion to quash.
Compare4. In camera review
One can ask for an in-camera review as part of the court’s consideration of the motion to quash, or the court might independently require such a review.
Comparea. Necessity
There is no requirement that a court conduct an in-camera review.
Compareb. Consequences of consent
There is no special treatment of the motion to quash in a reporter's privilege case as it may pertain to an automatic stay or other similar request.
Comparec. Consequences of refusing
A refusal to permit an in-camera review potentially exposes the reporter or other media witness to contempt orders or other sanctions. It is unclear how Idaho Code § 9-714 will affect the use of in-camera review in cases in which the privilege is invoked.
Compare5. Briefing schedule
All briefing is subject to the specific judge’s scheduling.
Compare6. Amicus briefs
Amici appearances in Idaho appellate courts are governed by Rule 8 of the Idaho Appellate Rules, by which the appeal court may allow an amicus in its direction. There is no similar rule in the trial court rules, but amici appearances are nonetheless allowed upon motion in some instances. Ordinarily, the court--whether at the trial level or at the appellate level--is asked to grant express permission to file an amicus brief. In that request, the potential amicus should make out a substantive case for the purpose of an amicus brief, the nature of the position to be taken by the amicus in the case and the time period sought for the purpose of completing and filing such a brief.
CompareVI. Substantive law on contesting subpoenas
CompareA. Burden, standard of proof
Prior Idaho cases do not discuss the burden of proof. However, as a practical matter and by analogy to other testimonial privileges, the reporter will bear the burden in the first instance of convincing the court that they were engaged in journalistic activities and connected with a covered outlet, and that the material sought is either a source identity or unpublished newsgathering material. At that point, the burden should presumably shift to the party seeking to compel the reporter’s disclosure to demonstrate that an applicable exemption (national security or imminent physical harm) exists as to overcome the privilege.
This represents a significant improvement from the prior Branzburg framework, under which Idaho courts had broad discretion to balance interests and Idaho appellate courts had demonstrated consistent hostility to the privilege.
CompareB. Elements
A journalist asserting the privilege under Idaho Code § 9-714 should establish
- The person was engaged in journalistic activities at the time of the newsgathering at issue;
- The person was engaged or employed by, or connected with, a newspaper, print publication, digital news outlet, or radio or television broadcasting station;
- The material sought is either: (a) the identity of a source of information that was published in the covered outlet, or (b) unpublished information, notes, or communications obtained or created through newsgathering; and
- No applicable exception (national security or imminent physical harm) applies to the matter.
1. Relevance of material to case at bar
Under the new law, relevance is no longer the primary threshold question as it was under the framework established by case law prior to the enactment of Idaho Code § 9-714. The privilege attaches to covered material regardless of its relevance to the underlying case. Relevance arguments by the subpoenaing party do not, by themselves, overcome the statutory protection.
Compare2. Material unavailable from other sources
On its face, Idaho Code § 9-714 does not require the subpoenaing party to exhaust alternative sources before seeking information form a journalist. However, if the information is available from other sources, that fact should strengthen the argument that no applicable exception to Idaho Code § 9-714 is met.
Comparea. How exhaustive must search be?
See above. On its face, Idaho Code § 9-714 does not require the subpoenaing party to exhaust alternative sources before seeking information form a journalist. However, if the information is available from other sources, that fact should strengthen the argument that no applicable exception to Idaho Code § 9-714 is met.
Compareb. What proof of search does a subpoenaing party need to make?
See above. On its face, Idaho Code § 9-714 does not require the subpoenaing party to exhaust alternative sources before seeking information form a journalist. However, if the information is available from other sources, that fact should strengthen the argument that no applicable exception to Idaho Code § 9-714 is met.
Comparec. Source is an eyewitness to a crime
No court has yet analyzed whether the protections of Idaho Code § 9-714 may be overcome where the source is an eyewitness to a crime. That fact may be applicable if a subpoenaing party is attempting to argue that a relevant exception (national security or imminent physical harm) is applicable such that it should overcome the privilege set forth in the shield law.
Compare3. Balancing of interests
The open-ended Branzburg balancing test no longer governs the threshold question under Idaho law. The statute establishes a categorical protection subject to narrow exceptions. Courts may still employ a balancing analysis within the scope of the exceptions (national security or imminent physical harm), but the ad hoc weighing of general “compelling interests” against press interests are no longer applicable since the adoption of Idaho Code § 9-714.
Compare4. Subpoena not overbroad or unduly burdensome
The court is not required to make a sua sponte analysis of the subpoena to determine whether it is overly broad or burdensome. Overbreadth and undue burden remain independent grounds to quash under IRCP 45(d) and ICR 17(b), regardless of the privilege analysis. The reporter should certainly analyze the subpoena and challenge it as overly broad or burdensome, under the pertinent discovery standards. A subpoena tat is facially overbroad should be challenged on those grounds in addition to the statutory privilege.
Compare5. Threat to human life
Under Idaho Code § 9-714, disclosure may be compelled in cases of imminent physical harm “as required by law.” Idaho Code § 9-714 requires a showing of imminence and direct nexus between the journalist’s material and the threat, making this exception narrower than the general balancing approach formerly used by Idaho courts prior to the adoption of the shield law.
Compare6. Material is not cumulative
The cumulative nature of the sought material is likely to be relevant to whether an exception justifying compelled disclosure truly applies under Idaho Code § 9-714. If the information is available elsewhere, it is harder to justify invoking a national security or imminent harm exception.
Compare7. Civil/criminal rules of procedure
ICRP 45 and ICR 17 provide the procedural framework for contesting subpoenas. The substantive standard is now governed by Idaho Code § 9-714.
Compare8. Other elements
Not applicable.
CompareC. Waiver or limits to testimony
Compare1. Is the privilege waivable?
Idaho Code § 9-714 does not expressly address waiver. Under IRE 510, a testimonial privilege is waived if a person “voluntarily discloses or consents to disclosure of any significant part of the matter or communication.” This general rule likely applies to Idaho Code § 9-714 as well, and a journalist who voluntarily discloses protected information may be deemed to have waived the privilege as to that information.
Compare2. Elements of waiver
Comparea. Disclosure of confidential source's name
No cases have analyzed this issue. However, voluntary disclosure of a source’s identity may constitute a waiver as to that source under IRE 510, but should not be construed to waive the privilege as to other sources or other unpublished materials.
Compareb. Disclosure of non-confidential source's name
No cases have analyzed this issue. Because the statute protects source identities regardless of confidentiality, however, voluntary disclosure of a non-confidential source’s name in publication likely does not constitute a waiver as to other protected materials.
Comparec. Partial disclosure of information
Partial disclosure of unpublished materials (e.g., using some notes in a published story) arguably does not waive the privilege as to other unpublished materials under a sound reading of the shield law. Courts have not yet addressed the question under Idaho Code § 9-714.
Compared. Other elements
Not applicable.
Compare3. Agreement to partially testify act as waiver?
Agreeing to testify about the privileged content at a high level (for example, confirming a story ran and was accurate) arguably should not constitute a waiver of the statutory protection for source identities or unpublished materials, consistent with the clear scope of Idaho Code § 9-714. This is a stronger position than was available prior to the adoption of the shield law.
CompareVII. What constitutes compliance?
As a general matter, compliance is determined by reference to the scope of the subpoena, as that scope may or may not be adjusted by the ruling of a court upon a motion to quash or other assertion of privilege. The nature of the compliance may also be determined by agreement between the parties that a production, or testimony, of information less than the actual scope of the subpoena, or subpoena duces tecum, will satisfy the opposing party.
CompareA. Newspaper articles
In Idaho, the recipient of a subpoena will often attempt to seek agreement that testimony limited to confirmation of the fact of publication of a newspaper story, and confirmation of the accuracy of the information contained in the story, will suffice to comply with the subpoena. Such an agreement avoids the need to testify concerning confidential or unpublished information. Idaho Code § 9-714 provides a clear statutory basis for limiting compliance to published information.
CompareB. Broadcast materials
See above. In Idaho, the recipient of a subpoena will often attempt to seek agreement that testimony limited to confirmation of the fact of publication of a broadcast story, and confirmation of the accuracy of the information contained in the story, will suffice to comply with the subpoena. Such an agreement avoids the need to testify concerning confidential or unpublished information. Idaho Code § 9-714 provides a clear statutory basis for limiting compliance to published information.
CompareC. Testimony vs. affidavits
If the information sought is needed by the opposing party for motion practice in the particular proceeding, an agreement can sometimes be reached by which the opposing party will agree to use of an affidavit in lieu of testimony. In the ordinary case, that will not be acceptable if the subpoena is for trial or other courtroom testimony.
CompareD. Non-compliance remedies
In Idaho, trial courts have broad contempt powers to exercise in their discretion to enforce judicial orders. The use of such powers in enforcing orders compelling testimony from reporters has been considered and implicitly approved by the Idaho Supreme Court. See Marks v. Vehlow, 105 Idaho 560, 671 P2d 473 (1983). Such powers include the use of civil fines and imprisonment. Idaho has had statutory provisions, since its territorial days, outlining the types of acts that are properly deemed contempts of the authority of the court. See Title 7, Chapter 6, Idaho Code. However, although such statutory provisions are referenced in various of the Idaho decisions addressing the contempt power, Idaho courts have also drawn upon constitutional powers and common-law contempt powers in justifying the exercise of such power in particular cases. Nonetheless, the statutory provisions should be consulted for possible particular application to the facts in any contempt order circumstance.
Compare1. Civil contempt
Comparea. Fines
There is no statutory or rule-made cap upon fines imposed as part of a civil contempt order. The amount and duration of such fines are reviewable, however, as with other aspects of a contempt order, by the appellate courts. Ordinarily, in Idaho, such a review is sought by the filing of a Writ of Review with the Idaho Supreme Court, under its original jurisdiction powers. A comprehensive summary of the use of the Writ of Review can be found in the chapter on extraordinary proceedings contained in the Idaho Appellate Handbook published by the Idaho Law Foundation.
Compareb. Jail
There is no statutory or rule-made limit upon jail sentences imposed as part of a contempt order. However, the specifics of such sentences are reviewable by the appellate courts. Ordinarily, in Idaho, such a review is sought by the filing of a Writ of Review with the Idaho Supreme Court, under its original jurisdiction powers. A comprehensive summary of the use of the Writ of Review can be found in the chapter on extraordinary proceedings contained in the Idaho Appellate Handbook published by the Idaho Law Foundation.
Compare2. Criminal contempt
No known cases have resulted in criminal contempt convictions for disobedience of a subpoena.
Compare3. Other remedies
The court also has the power to impose sanctions against the party that has refused to provide testimony or information. These sanctions, which are left to the discretion of the court under the court rules, can range from striking a particular defense to striking all defenses and entering judgment against the party on all liability issues.
In the ordinary case, Idaho courts have said that there is no appeal of right from a contempt order. It is not included in the listing of appealable judgments and orders contained in Rule 11 of the Idaho Appellate Rules. Similarly, contempt orders are deemed “final and conclusive” by statute. Idaho Code § 7-616. However, the Idaho Supreme Court has ruled that it has plenary power to review contempt orders and although it has not gone so far as to say it will absolutely not consider a traditional “appeal” of a contempt order, it has said on several occasions that the writ of review is the most appropriate means by which to seek appellate review of a contempt order. See, e.g., Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).
CompareVIII. Appealing
In the ordinary case, Idaho courts have said that there is no appeal of right from a contempt order. It is not included in the listing of appealable judgments and orders contained in Rule 11 of the Idaho Appellate Rules. Similarly, contempt orders are deemed “final and conclusive” by statute. Idaho Code § 7-616. However, the Idaho Supreme Court has ruled that it has plenary power to review contempt orders and although it has not gone so far as to say it will absolutely not consider a traditional “appeal” of a contempt order, it has said on several occasions that the writ of review is the most appropriate means by which to seek appellate review of a contempt order. See, e.g., Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).
CompareA. Timing
Appeal from a final judgment must be filed with 42 days. A petition for a writ of review is subject to different rules and statutes. No specific time period is described for the filing of special writs, such as a writ of review, which are generally governed by provisions of Rule 43 of the Idaho Appellate Rules.
Compare1. Interlocutory appeals
If a course other than a writ of review is pursued for some extraordinary reason, such as an interlocutory appeal, then the motion for permission to appeal an interlocutory contempt order or denial of a motion to quash must be filed within 14 days from entry of the order being appealed. Permission is initially sought from the trial court; in the event the trial court denies the motion, a motion for permissive appeal may still be filed with the Idaho Supreme Court. As a practical matter, however, it is unlikely the Idaho Supreme Court will grant a motion for permissive appeal if the same has already been denied by the trial court. Ultimately, the appeal court must still decide on its own to grant the permissive appeal, even where the motion has been granted by the trial court.
Compare2. Expedited appeals
There is no particular procedure for expedited appeals, although expedited attention to the matter may be requested by motion. Ordinarily, the most expeditious manner of obtaining review of a contempt order is to seek immediate scrutiny by the Idaho Supreme Court in the form of an extraordinary writ of review, under the Idaho Supreme Court's original jurisdiction. However, in a writ of review the primary question is whether or not the trial court exceeded its jurisdiction in issuing the contempt order, so careful attention should be paid to the nature of the challenge to be made to the contempt order. See Marks v. Vehlow, 105 Idaho at 564, 671 P.2d at 477; Idaho Code § 7-208 (2018).
CompareB. Procedure
Compare1. To whom is the appeal made?
Appeals from rulings of a magistrate judge are made to the next trial court level, the district court. Appeals from the district court are made to the Idaho Supreme Court. The Idaho Supreme Court has the option of assigning the appeal to the Idaho Court of Appeals. Decisions of the Idaho Court of Appeals may be submitted to the Idaho Supreme Court for further appellate review, but such appeals are only accepted in the discretion of the Idaho Supreme Court. If the contempt order is challenged through a Writ of Review, then the petition seeking the writ is filed directly with the Idaho Supreme Court, under that court's original jurisdiction.
Compare2. Stays pending appeal
A stay may be sought either from the district court, acting in an appeal from magistrate court, or from the Idaho Supreme Court. Such stays are granted in the discretion of the court. In some instances, the issuance of the stay may be contingent upon the posting of a bond or other affirmative action from the party seeking the stay. See, Rule 13 of the Idaho Appellate Rules. A temporary stay may be obtained ex parte, provided that a demonstration of immediate and irreparable injury, loss or damage is established in a verified petition seeking the temporary stay. See, Rule 13.1 of the Idaho Appellate Rules.
Compare3. Nature of appeal
An appeal taken in the ordinary course, under the usual appeal procedure, will proceed as with any other appeal. There will be a time for settling the record, an order from the appeal court setting out a briefing schedule and then the case may or may not be set for argument, with a decision to follow. In the use of extraordinary writs, the process is generally more truncated and speedier, subject to the particular rules of the appeal court dealing with the use of its original jurisdiction. See, I.A.R. 43.
Compare4. Standard of review
In almost all instances, the appeal court will review the decision to use the contempt power as a review of a matter of law, in which the appeal court exercises complete review. However, because the issuance of a contempt order is considered in Idaho to be within the inherent power of the court to enforce its general orders, the particulars of such orders, such as the amount of a fine or the nature of imprisonment, are reviewed under an abuse of discretion.
Compare5. Addressing mootness questions
Idaho courts have not considered whether an appeal of a contempt sanction may be pursued under the “capable of repetition but evading review” doctrine, after the relevant trial or grand jury session may have concluded. Given that Idaho Code § 9-714 creates recurring circumstances, arguments based ont hat doctrine may be available in appropriate cases.
Compare6. Relief
The reviewing court should be asked to vacate or dissolve the contempt order, or such lesser relief as may be particularly warranted in the facts of the case. Because most contempt orders are reviewed under the Idaho Supreme Court's original jurisdiction, which encompasses use of the so-called extraordinary writs, special attention should also be given to whether other of the extraordinary writs--such as mandamus or prohibition--are appropriate for the circumstances.
CompareIX. Other issues
CompareA. Newsroom searches
The federal Privacy Protection Act (42 U.S.C. 2000aa) has not been implicated in any reported Idaho decisions. There are no similar state statutes. Idaho Code § 9-714 addresses compelled testimony and document production via subpoena, but does not specifically address newsroom searches. The federal Privacy Protection Act remains the primary protection against physical searches of newsrooms in Idaho.
CompareB. Separation orders
There are no known judicial decisions in Idaho considering the issue of whether a reporter covering a trial can be forced to remain outside of the courtroom because the reporter is on a witness list. A party is entitled under Idaho court rules to ask the court to exclude all witnesses from the courtroom. If a reporter is on such a witness list, and a party seeks his or her exclusion, then the reporter should ask the court to modify the exclusion order so as to allow the reporter to remain in the courtroom. The argument on such a request presumably would focus upon the direct chilling effect caused by the exclusion.
CompareC. Third-party subpoenas
Idaho Code § 9-714 protects journalists from being compelled to disclose source identities but does not expressly address third-party subpoenas issued to telecommunications providers or others that might reveal the identity of a journalist’s source. There are no known Idaho cases addressing the issue of whether a reporter has the right to intervene in efforts to use third-parties, such as telephone companies, to obtain information that might disclose the identity of a confidential source. Because the privilege in Idaho appears to be personal to the media witness, rather than the source, it is unlikely that Idaho courts would rule that the reporter's privilege extends in such a manner as would prohibit discovery from other parties, or that would prohibit use of such information in the judicial proceeding.
CompareD. The source's rights and interests
Idaho Code § 9-714 vests the privilege in the journalist, not the source. There are no known Idaho cases in which a confidential source has attempted to intervene in a proceeding involving attempts to compel testimony concerning the confidential source. Depending upon the nature of the promise made to the source (e.g., was the promise of confidentiality an unconditional promise, or one in which the promisor is released from the promise if ordered to testify), the source may have a claim for a breach of contract. There has been no reported breach of contract/confidential source case in Idaho.
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