Reporter's Privilege Compendium
Frederick F. Sherwood and Anne E. Sherwood
Morrison, Sherwood, Wilson and Deola, PLLP
401 N. Last Chance Gulch
Helena, MT 59601
(406) 443-7294 (fax)
I. Introduction: History & Background
Montana has had a shield law in some form since 1943. It has been amended five times up to the present, each time being broadened or strengthened. There have been only five Montana Supreme Court cases discussing this law, State ex. rel. Adams v. District Court of the Third Judicial District, 169 Mont. 336, 546 P.2d 988 (1976); Sible v. Lee Enterprises, Inc., 224 Mont. 163, 729 P.2d 1271 (1986); State v. Slavin, 2004 MT 76, 320 Mont. 425; State v. Kolb, 2009 MT 9, 349 Mont. 10, 200 P.3d 504; and State v. Ditton, 2009 MT 10N. Note however, that State v. Ditton is a non-published, non-citable opinion.
One of the most noteworthy shield law cases in Montana was never appealed to the Supreme Court. The first was Linda Tracy v. City of Missoula, Missoula County Cause No. DV-00-849 (2001). A journalism student prepared and disseminated a video documentary of confrontations between police and citizens that occurred after a large scale police presence was brought into the city to deal with a Hells Angels gathering. The Angels themselves were a dud, but what many local people perceived as heavy handed police tactics led to two interesting days of protests, tear gas, and arrests. The city attempted to subpoena Linda Tracy's source material for use in criminal prosecutions, and she resisted on the basis of the shield law and the First Amendment. The District Court quashed the subpoena after a hearing.
A second noteworthy shield law case that was not discussed by the Supreme Court was the district court’s decision in Doty v. Molnar, Yellowstone County Cause No. DV 07-022 (2008). In Doty, a losing candidate for the Billings Public Service Commission in 2004 brought a libel suit against his opponent for comments made during the election. As part of his case, Doty issued a subpoena to the Billings Gazette seeking the identity, including email and IP address, of two individuals who had anonymously posted comments about Doty on the newspaper’s website under the aliases of “CutiePie” and “Always wondering.” Doty believed each was Molnar in disguise. The court quashed the subpoena because the judge agreed with the newspaper that the anonymous commenters were sufficiently connected to the newspaper to warrant protection under Montana’s shield law. This decision, among others, was affirmed in a non-published and non-citable opinion of the Montana Supreme Court in Doty v. Molnar, 2013 MT 236N, 317 P.3d 204.Compare
II. Authority for and source of the rightCompare
A. Shield law statute
Montana's law is entitled the "Media Confidentiality Act" and presently reads as follows:
26-1-902. Extent of privilege. (1) Without a person’s consent, a person, including any newspaper, magazine, press association, news agency, news service, radio station, television station, or community antenna television service or any person connected with or employed by any of these for the purpose of gathering, writing, editing, or disseminating news, may not be examined as to or may not be required to disclose any information obtained or prepared or the source of that information in any legal proceeding if the information was gathered, received, or processed in the course of the person’s employment or business.
(2) A person described in subsection (1) or an electronic communication service used by that person may not be adjudged in contempt by a judicial, legislative, administrative, or any other body having the power to issue subpoenas for refusing to disclose or produce the source of any information or for refusing to disclose any information obtained or prepared in gathering, receiving, or processing information in the course of the person’s business.
(3) A judicial, legislative, administrative, or other governmental body may not request or require the disclosure of information otherwise protected under subsection (1) from an electronic communication service.
(4) For the purposes of this section, “electronic communication service” means a service used to send, receive, transmit, store, or facilitate electronic communications.
26-1-903. Waiver of privilege. (1) Except as provided in subsection (2), dissemination in whole or in part does not constitute a waiver of provisions of 26-1-902.
(2) If the person claiming the privilege testifies, with or without having been subpoenaed or ordered to testify or produce the source, before a judicial, legislative, administrative, or other body having the power to issue subpoenas or judicially enforceable orders, the person does not waive the provisions of 26-1-902 unless the person voluntarily agrees to waive the privilege or voluntarily discloses the source in the course of the person’s testimony. Except as provided in this subsection, the provisions of 26-1-902 may not be waived.
The predecessor of this law was first enacted in 1943 as the "Reporters Confidence Act." It protected from disclosure only the sources of information. The privilege was granted to persons identified in a list of categories similar to that of the present law. In 1951 this list was expanded to include radio and television news.
In the Adams case, supra, a reporter was ordered to produce for in camera inspection by a judge a letter that had been written to him by a criminal defendant, and of which the reporter had published portions. Following that case, the law was amended to protect information as well as sources, and to make waiver more difficult. Organizations that appeared before the legislature to support those changes included the Montana Press Association, the Montana Broadcasters Association, and some newspapers.
In 1979 the law was broadened again by liberalizing when persons were protected by it. The waiver language was also adjusted.
In 1987 the Court decided the Sible case, supra. Part of its holding in this defamation action was that when the reporter testified, he waived his privilege to keep his notes confidential. The legislature then in 1989 amended the law to its present form, which prevents waiver by journalism except as a voluntary choice.
The law was most recently amended in 2015 to extend the source protection privilege to third-party communications service providers that hold electronic records. The amendment was a proactive and unique measure meant to prevent the government from demanding privileged news media such as emails and other communications from entities where the communications are stored, such as Google, Yahoo, Outlook, or Facebook.Compare
B. State constitutional provision
In the Adams case the reporter raised state and federal constitutional issues. The Montana Supreme Court held that they could not be determined unless the district court first examined the subpoenaed material for relevancy and privilege. The Montana Constitution does provide for freedom of speech, expression and the press, in Article II, §7, and also contains a strong protection of the public's right to know, which is found at Article II, §9.
In the Slavin case the shield law was attacked on constitutional bases. In that case the criminal defendant had subpoenaed a reporter and editor who had interviewed the complaining witness and written an article that contained statements from the complainant that were helpful to the defendant. The journalists moved to quash their subpoenas immediately before the trial, and the district court did so on the basis of the Media Confidentiality Act. The defendant was convicted and appealed on the grounds that his right to present witnesses in his defense had been violated, contrary to the Sixth Amendment and the Montana Constitution. The Montana Supreme Court denied the appeal. It held that if there were any error it was harmless, since the evidence was presented to the jury through other means, including the admissions of the complaining witness and the article itself.
A nearly identical set of facts was presented in the Kolb case, in which the defendant subpoenaed a reporter who had interviewed the plaintiff for a newspaper article. Kolb sought to present evidence, through the reporter, that the plaintiff had made an inconsistent statement about the type of gun used in the robbery at issue. Kolb argued his right to a fair trial was compromised by his inability to compel the reporter’s attendance. As in Slavin, the district court avoided the constitutional issue and quashed the subpoena based on the Media Confidentiality Act. The district court found there was another way for Kolb to get the information he sought into evidence. Since the evidence was otherwise available, no constitutional analysis was triggered. The Montana Supreme Court upheld the denial on the same basis.
In the Ditton case, a pro-se litigant challenged the constitutionality of the Media Confidentiality Act after he sought to subpoena a crime reporter for the Bozeman Daily Chronicle who had written two articles about his DUI arrest that quoted police officers. Ditton claimed that he needed the reporter’s testimony to impeach the officers’ testimony against him. The newspaper filed a motion to quash the subpoena based on the Media Confidentiality Act. In quashing the subpoena, the district court held the Media Confidentiality Act clearly prohibited the compelled testimony of the reporter. Ditton argued to the Montana Supreme Court that the district court’s ruling constituted "harmful error" because it denied him his Sixth Amendment right to confront the witnesses against him and his due process rights under the Fourteenth Amendment. The Montana Supreme Court found the denial of Ditton's subpoena was, at best, harmless error because both of the newspaper articles were admitted into evidence and the officers and witnesses who testified provided ample evidence to support Ditton's conviction. Unlike Slavin and Kolb however, this opinion is non-citable.Compare
C. Federal constitutional provision
Other than the rather cursory treatment of the issue in Adams, discussed above, this writer is unaware of any Montana case in which a state court applied or rejected a reporter's privilege based on the First Amendment to the U.S. Constitution.
Concerning the shield law and the Sixth Amendment, see the Slavin and Kolb cases discussed in the section concerning state constitutional analysis.Compare
D. Other sources
There are no other sources of a reporter's privilege in Montana other than the statutes and constitutional provisions described above.Compare
III. Scope of protectionCompare
Montana's privilege is very strong. It is absolute for covered individuals and information, without the weighing of other factors. Nor can it be waived except by intention.Compare
B. Absolute or qualified privilege
The law does not make any distinction among different types of information, but gives an absolute privilege for all newsgathering.Compare
C. Type of caseCompare
The law makes no distinction between civil and criminal cases.Compare
On its face, the law does not treat subpoenas differently depending on whether they are for civil or criminal cases. In practice, many criminal case subpoenas are likely to be issues under § 46-4-301, MCA, which gives authority to prosecutors to request investigative subpoenas. Such a subpoena must be quashed under § 46-4-303, MCA.Compare
3. Grand jury
There are no different standards in the law for grand jury subpoenas. Grand juries are seldom used in Montana, where prosecutors can file cases by information.Compare
D. Information and/or identity of source
The law protects both the information obtained and the identity of the source of the information.Compare
E. Confidential and/or nonconfidential information
The law now protects both sources and information, and makes no distinction between "confidential" and "non-confidential" information.Compare
F. Published and/or non-published material
Montana's law does not differentiate between published material and material that has not been published. In the Tracy case, supra, the court denied the prosecutor's access to Linda Tracy's film outtakes.Compare
G. Reporter's personal observations
There is no Montana case law discussing whether there should be a distinction when the reporter has personally observed the matter on which he reported and was then subpoenaed. The statute however, protects "any information obtained or prepared . . . if the information was gathered, received, or processed in the course of his employment or its business." That language does not appear to treat eyewitness testimony any differently.Compare
H. Media as a party
The privilege does not differentiate between cases where the media is a party and where it is not.Compare
I. Defamation actions
Montana's law does not contain any "libel exception." The Sible case was a defamation action against a newspaper and its reporter. The Court held that the reporter waived the privilege as to his notes when he testified. The legislature subsequently changed the law to avoid that result.Compare
IV. Who is coveredCompare
A. Statutory and case law definitionsCompare
1. Traditional news gatherersCompare
Montana does not give the privilege to "reporters" as such, but to "any person connected with or employed by (certain named organizations) for the purpose of gathering, writing, editing or disseminating news." There is no requirement that such a person work a minimum number of hours.Compare
The definition that covers reporters is the same one that covers editors.Compare
There is no further definition of what "news" is. If the information was gathered or processed in the course of the business of the defined organizations, then it is presumed to be news.Compare
d. Photo journalist
Photojournalists are not separately mentioned in the law. Linda Tracy was a videographer and the privilege applied to her. Whether or not a photojournalist in another case would receive the protection of the law, would depend on that person's relationship with the named organizations.Compare
e. News organization/medium
The Montana law only gives its protection to certain defined media and those employed by or connected with that media for the purpose of gathering or disseminating news.Compare
2. Others, including non-traditional news gatherers
The area where the Montana law can be the most limited concerns who is covered by the privilege. Non-traditional news gatherers will not have coverage unless they also have a connection with the media that are listed in the law. For example Linda Tracy, a student who made a video documentary, received the protection of the privilege because she had connections with the University of Montana, which operates a public radio and television station, with television stations that broadcast some of her work, and with a non-profit organization, Cold Mountain, Cold Rivers, Inc., that provided Ms. Tracy with videotape footage and equipment for producing the documentary. By virtue of its history and stated purpose of producing video documentaries as well as news footage to television networks, the district court found CMCR to be a "news agency" as that term is used in the statute.
The district court’s decision in Doty further extended the outlines of the privilege for non-traditional newsgatherers when it granted the protection to individuals who commented anonymously on a newspaper’s website. In Doty, the individuals were protected because they were sufficiently connected to the newspaper, not because they themselves were gathering news.
A person who might have trouble obtaining the protection of the Montana shield law would be a true freelancer, e.g. an author doing research for a book, who had no connection with the listed media.Compare
B. Whose privilege is it?
The privilege belongs to the reporter and the news media that the reporter is employed by or connected with. The privilege does not belong to the source.Compare
V. Procedures for issuing and contesting subpoenasCompare
A. What subpoena server must doCompare
1. Service of subpoena, time
There are no special requirements for service on a member of the news media. In general, subpoenas are served by showing the original and presenting a copy, along with the statutory witness fee (currently $10) and a fee for mileage if the person subpoenaed lives out of the town and requests mileage. Subpoenas must be served sufficiently ahead of time to give the person subpoenaed a reasonable amount of time to comply or object.Compare
2. Deposit of security
No security is required as a deposit for a subpoena.Compare
3. Filing of affidavit
An affidavit is required for an investigative subpoena on behalf of law enforcement. Otherwise, an affidavit is not required.Compare
4. Judicial approval
A judge or magistrate must approve a criminal investigative subpoena, but need not approve a subpoena in a civil case.Compare
5. Service of police or other administrative subpoenas
Some administrative bodies can serve subpoenas, but these must be enforced through the courts.Compare
B. How to Quash
A subpoena must be quashed by applying to the court. In the case of administrative subpoenas, redress through the administrative body should first be sought. In the case of criminal investigative subpoenas, the applicable statutes are §§ 46-4-301 through 46-4-303, MCA.Compare
1. Contact other party first
The law does not require that the subpoenaing party first be contacted before moving to quash a subpoena. As a matter of effective practice in this state, it may however be a good idea to do so.Compare
2. Filing an objection or a notice of intent
In a civil case a party can make an objection and wait for a motion to quash, Rule 45(c), M.R.Civ.P. Overall however, an objecting party probably puts itself in a better position with a motion to quash.Compare
3. File a motion to quashCompare
a. Which court?
The motion to quash should be filed in the court that issued the subpoena.Compare
b. Motion to compel
A motion to quash may be a better way to go rather than waiting for a motion to compel, though in a civil case an objection made within fourteen days of the subpoena is also an option.Compare
In a civil case the objection or motion to quash should be made within fourteen days, or prior to the time specified for compliance if that time is less than fourteen days. Otherwise, there is no set deadline for filing a motion to quash, but it probably should be done as soon as possible after receipt of the subpoena.Compare
There is no stock language for a motion to quash.Compare
e. Additional material
A motion to quash should be supported by a brief or memorandum filed with the motion or within five days of it. How a court may react to particular attachments to such a memorandum will depend on the particular judge and case.Compare
4. In camera reviewCompare
Should the reporter establish that the subpoena is barred under the Montana Media Confidentiality Act, the privilege is absolute and any weighing of factors in an in camera review is unnecessary. In the case of a constitutional challenge to the subpoena, there will be a weighing of factors and likely such an in camera review.Compare
b. Consequences of consent
In the case of an adverse ruling a stay is not automatic, but there would be good grounds for getting one on request.Compare
c. Consequences of refusing
If a district court order is not obeyed, the alternatives are obtaining a stay pending appeal, or risking sanctions for contempt of court.Compare
5. Briefing schedule
A brief must be filed with the motion. The other party then has fourteen days to respond, and the moving party has the option to submit a reply brief.Compare
6. Amicus briefs
Courts often accept amicus briefs. In Montana a reporter may wish to contact the FOI Hotline c/o the Associated Press Bureau in Helena, Montana.Compare
VI. Substantive law on contesting subpoenasCompare
A. Burden, standard of proof
If a reporter demonstrates that he is covered under the state shield law, the privilege is absolute.Compare
The elements that must be shown are those described in the statute.Compare
1. Relevance of material to case at bar
In theory, the relevance of the material does not matter if it is privileged.Compare
2. Material unavailable from other sources
Under Montana's shield law, it does not matter whether or not the material is available from other sources.Compare
a. How exhaustive must search be?
If the statutory privilege applies, exhaustion of other sources is not an issue.Compare
b. What proof of search does a subpoenaing party need to make?
If the statutory privilege applies, exhaustion of other sources is not an issue.Compare
c. Source is an eyewitness to a crime
No distinction is made under Montana's law if the source is an eyewitness to a crime. If the source is a criminal participant, then the law might not apply if the court found that the source had not been engaged in his or her employment of gathering news.Compare
3. Balancing of interests
While there would be a judicial balancing of interests under constitutional considerations, under the statutory shield law there is no such requirement.Compare
4. Subpoena not overbroad or unduly burdensome
Subpoenas can be quashed or modified if overbroad.Compare
5. Threat to human life
There is nothing in the statutes, nor any case law, on the issue of threat to human life.Compare
6. Material is not cumulative
Under the shield law, it does not matter if the subpoenaed testimony or material would be cumulative. However, see the discussion of the Slavin case above.Compare
7. Civil/criminal rules of procedure
All subpoenas should be contested before the court or body that issues them.Compare
8. Other elements
If the statutory criteria are met, the privilege is absolute.Compare
C. Waiver or limits to testimonyCompare
1. Is the privilege waivable?
The Montana statute specifically states that the privilege is waived only on the voluntary choice of the reporter, § 26-1-903, MCA.Compare
2. Elements of waiverCompare
a. Disclosure of confidential source's name
Disclosure to some, e.g. an editor or lawyer, does not waive the privilege.Compare
b. Disclosure of non-confidential source's name
Disclosure of the source's name is not waiver except of course as to the identity of the source.Compare
c. Partial disclosure of information
Partial disclosure is not waiver.Compare
d. Other elements
The Montana statute specifically states that the privilege is waived only on the voluntary choice of the reporter, § 26-1-903, MCA.Compare
3. Agreement to partially testify act as waiver?
Partial dissemination is not waiver unless the reporter intends it to be so.Compare
VII. What constitutes compliance?
Compliance with a subpoena means the production of the subpoenaed material or testimony.Compare
A. Newspaper articles
Montana allows fairly easy authentication of evidence such as newspaper articles.Compare
B. Broadcast materials
There is no particular requirement as to who the representative of a subpoenaed broadcaster must be.Compare
C. Testimony vs. affidavits
An affidavit can take the place of in-court testimony only upon the agreement of all the parties.Compare
D. Non-compliance remedies
Pursuant to § 3-1-501, MCA, non-compliance with a valid, upheld subpoena can result in either civil contempt, § 3-1-520, MCA or criminal contempt, § 45-7-309, MCA.Compare
1. Civil contemptCompare
The fine for civil contempt is capped at $500.Compare
Jail sentences for civil contempt are not limited by the statute. This author is aware of no recent instances in which a reporter went to jail rather than disclose.Compare
2. Criminal contempt
This author is aware of no recent instances of criminal contempt being used against a reporter for failure to disclose.Compare
3. Other remedies
In a civil case in which the person refusing to obey the lawful subpoena is a party, they may be assessed costs, including attorney fees, or be limited in the evidence they can present in the case, Rule 37, M.R.Civ.P.Compare
1. Interlocutory appeals
With a few exceptions, only final judgments and orders can be appealed. Interlocutory orders can be appealed either on stipulation or with the consent of the district court after a motion.Compare
2. Expedited appeals
There are no procedures for the expedited appeals of these issues, which decision would lie completely in the discretion of the Montana Supreme Court.Compare
1. To whom is the appeal made?
Appeals from courts of limited jurisdiction, e.g. justice or municipal courts, or from administrative agencies, are to district court. All appeals from district courts must be to the Montana Supreme Court.Compare
2. Stays pending appeal
Requests for stay should be addressed to the court that issued the order being appealed. If a constitutional right is alleged, that argument should be made.Compare
3. Nature of appeal
Extraordinary writs such as mandamus require that there is no adequate remedy through an ordinary appeal under law.Compare
4. Standard of review
Appellate courts give great deference to findings of fact, only overturning them if they are not supported by substantial evidence. Concerning legal conclusions the standard of review is de novo.Compare
5. Addressing mootness questions
Montana recognizes the doctrine of "capable of repetition but evading review" in allowing appeals.Compare
An appellate court could either dissolve the contempt citation, or order the trial court to reconsider it. A reporter should ask for the maximum relief.Compare
IX. Other issuesCompare
A. Newsroom searches
Montana has no statutory equivalent to the federal Privacy Protection Act, though it has strong privacy protections in its constitution at Article II, § 10. There has not been litigation on this precise issue.Compare
B. Separation orders
The author is unaware of any cases where separation orders have been an issue.Compare
C. Third-party subpoenas
In 2015, the Montana Legislature amended the law to explicitly extend the protection of the Media Confidentiality Act to third party entities that store the privileged information. While the issue had never come up before, legislators wanted to be proactive about what they perceived to be a “loophole” in the current law which would, in theory, allow someone to subpoena a third party such as Google or Yahoo in order to get otherwise privileged information. Montana courts have not addressed a media interest in fighting third party subpoenas.Compare
D. The source's rights and interests
The author is unaware of any interventions or lawsuits by sources.Compare