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Wisconsin

Reporter's Privilege Compendium

James A. Friedman
Godfrey & Kahn, S.C.
One East Main Street, Suite 500
P.O. Box 2719
Madison, WI 53701-2719
Phone: 608-257-3911
Fax: 608-257-0609

Special thanks to the previous co-authors of this chapter, Robert J. Dreps and Dustin B. Brown.

Last updated June 27, 2019

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I. Introduction: History & Background

In 2010, Wisconsin enacted a shield law protecting confidential sources and newsgathering materials. The act, codified at section 885.14 of the Wisconsin Statutes, provides journalists with an absolute privilege to withhold confidential source information and a qualified privilege to protect other newsgathering information. There have been no published state court decisions interpreting the shield law.

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II. Authority for and source of the right

A. Shield law statute

Wisconsin’s shield law statute appears at Wis. Stat. § 885.14.  The shield law establishes an absolute privilege for confidential sources and information, and a qualified privilege for all other newsgathering material.  Any party seeking to subpoena a “news person” must make a rigorous showing before a court will issue such a subpoena.

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B. State constitutional provision

The Wisconsin Constitution does not include an express shield law provision, but it does provide that “no laws shall be passed to restrain or abridge the liberty of speech or of the press.” Wis. Const. art. I, sec. 3.  State courts have read a qualified reporter's privilege into this provision of the Wisconsin Constitution. See Zelenka v. State, 266 N.W.2d 279, 286-87 (Wis. 1978); State ex rel. Green Bay Newspaper Co. v. Circuit Court, 335 N.W.2d 367, 372 (Wis. 1983); Kurzynski v. Spaeth, 538 N.W.2d 554, 557 (Wis. Ct. App. 1995).   To apply the qualified constitutional privilege, Wisconsin courts balance the freedom of the press “against a compelling and overriding public interest in the information sought.”  Zelenka, 266 N.W.2d at 287.  The statutory protection afforded by Wisconsin’s shield law is much stronger than the qualified constitutional privilege.

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C. Federal constitutional provision

Wisconsin courts also have found a reporter's privilege in the First Amendment to the U.S. Constitution. See State v. Knops, 183 N.W.2d 93, 95 (Wis. 1971); Zelenka, 266 N.W.2d at 286-87; Kurzynski, 538 N.W.2d at 559.

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D. Other sources

There are no other sources of a reporter's privilege in Wisconsin.

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III. Scope of protection

A. Generally

Wisconsin’s shield law offers an absolute privilege for confidential sources and information, and a qualified privilege for all other newsgathering material.  This statutory protection is far stronger than the Wisconsin constitution’s qualified privilege for journalists.

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B. Absolute or qualified privilege

The shield law prohibits the issuance of any subpoena compelling a “news person” to testify about, produce, or disclose confidential information obtained or prepared through his or her newsgathering activities.  Wis. Stat. § 885.14(2)(a).  This absolute protection applies to three categories of confidential information: “[t]he identity of a confidential source of any news or information,” “[a]ny information that would tend to identify the confidential source of any news or information,” or “[a]ny news or information obtained or prepared in confidence by the news person.”  Wis. Stat. § 885.14(2)(a)1.–3.

 

All other newsgathering information enjoys a qualified—but still very strong—protection.  Specifically, the shield law strictly limits the circumstances under which a subpoena can be issued for any “news” or “information,” or the “identity of any source of any news or information,” that falls outside the statute’s three categories of confidential information.  Wis. Stat. § 885.14(2)(a)(4).  Such a subpoena can be issued only by a court following notice and an opportunity to be heard by the news person and the satisfaction of a rigorous multi-part test by the person requesting the subpoena.  Wis. Stat. § 885.14(2)(b), (c).

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C. Type of case

1. Civil

Wisconsin's shield law applies to both civil and criminal proceedings.  See Wis. Stat. § 885.14(2)(b)(1)–(2) (setting out prerequisites for issuing subpoena in a “criminal prosecution” and a “civil action”).

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2. Criminal

Wisconsin's shield law applies to both civil and criminal proceedings.  See Wis. Stat. § 885.14(2)(b)(1)–(2) (setting out prerequisites for issuing subpoena in a “criminal prosecution” and a “civil action”).

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3. Grand jury

Wisconsin’s shield law does not offer any protection against federal grand jury proceedings.

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D. Information and/or identity of source

The shield law in Wisconsin explicitly protects the identity of a source as well as unpublished information gathered by a reporter.

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E. Confidential and/or nonconfidential information

Wisconsin’s shield law provides absolute protection for confidential information and qualified protection for non-confidential information.

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F. Published and/or non-published material

Wisconsin’s shield law applies whether or not the information is published.  If protected information is disclosed to another person or disseminated to the public, that “does not constitute a waiver of the protection from compelled disclosure” afforded by the shield law.  Wis. Stat. § 885.14(4).

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G. Reporter's personal observations

The shield law applies only to information “that is obtained or prepared by the news person in the news person's capacity in gathering, receiving, or preparing news or information for potential dissemination to the public.”  Wis. Stat. § 885.14(2)(a).  While there is no authority directly on point, Wisconsin courts are unlikely to extend the reporter's privilege to information obtained as an eyewitness.

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H. Media as a party

The shield law applies to the issuance of subpoenas to news persons.  Wis. Stat. § 885.14(2).  It does not address discovery sought from the news media as a party.

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I. Defamation actions

There is no authority in Wisconsin on how the reporter's privilege applies in a defamation or libel case.

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IV. Who is covered

The shield law provides protection only to a “news person,” which is defined as follows:

(a)        Any business or organization that, by means of print, broadcast, photographic, mechanical, electronic, or other medium, disseminates on a regular and consistent basis news or information to the public, including a newspaper, magazine, or other periodical; book publisher; news agency; wire service; radio or television station or network; cable or satellite network, service, or carrier; or audio or audiovisual production company; and a parent, subsidiary, division, or affiliate of any of these businesses or organizations.

(b)       Any person who is or has been engaged in gathering, receiving, preparing, or disseminating news or information to the public for an entity described in par. (a), including any person supervising or assisting the person in gathering, receiving, preparing, or disseminating such news or information.

Wis. Stat. § 885.14(1).  This definition applies to media entities and to individuals engaged in newsgathering on behalf of such entities.

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A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

Reporters are covered by the shield law, but only if they engage in newsgathering for a business or organization that regularly disseminates news to the public.  Wis. Stat. § 885.14(1).

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b. Editor

Editors are covered by the shield law as long as they are supervising or assisting in newsgathering performed for a business or organization that regularly disseminates news to the public.  Wis. Stat. § 885.14(1).

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c. News

A “news person” only may invoke the shield law in connection with information “obtained or prepared by the news person in the news person's capacity in gathering, receiving, or preparing news or information for potential dissemination to the public.”  Wis. Stat. § 885.14(2)(a).

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d. Photo journalist

There is no authority in Wisconsin that defines "photo journalist."

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e. News organization/medium

The shield law provides protection only to a “news person,” which is defined as follows:

(a)        Any business or organization that, by means of print, broadcast, photographic, mechanical, electronic, or other medium, disseminates on a regular and consistent basis news or information to the public, including a newspaper, magazine, or other periodical; book publisher; news agency; wire service; radio or television station or network; cable or satellite network, service, or carrier; or audio or audiovisual production company; and a parent, subsidiary, division, or affiliate of any of these businesses or organizations.

(b)       Any person who is or has been engaged in gathering, receiving, preparing, or disseminating news or information to the public for an entity described in par. (a), including any person supervising or assisting the person in gathering, receiving, preparing, or disseminating such news or information.

Wis. Stat. § 885.14(1).  This definition applies to media entities and to individuals engaged in newsgathering on behalf of such entities.

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2. Others, including non-traditional news gatherers

No case law addresses the extent to which non-traditional news gatherers may enjoy the shield law’s protections.  However, the requirement that the “news person” engage in news gathering “for an entity described in” Wis. Stat. § 885.14(1)(a) appears to exclude truly independent newsgatherers who are not affiliated with a media entity.

The absolute privilege for confidential information also bars “a person other than a news person” from being subpoenaed regarding “a business transaction between that person and the news person if the purpose of the subpoena is to discover” confidential newsgathering information.  Wis. Stat. § 885.14(3).

There is limited authority in Wisconsin that determines whether the constitutional reporter's privilege applies to non-traditional news gatherers such as authors, freelancers, students, unpaid news gatherers, or academic researchers. A Wisconsin circuit court has concluded that an independent filmmaker collecting information for a documentary film may invoke the reporter's privilege. In re Subpoena to Laura Riccardi, et. al., No. 05CF381 (Wis. Cir. Ct. Jan. 18, 2007). The same court implied that student news gatherers may be entitled to Wisconsin's qualified reporter's privilege. See id.

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B. Whose privilege is it?

The privilege under the shield law belongs to the “news person,” because the news person is entitled to “notice” and “an opportunity to be heard” before a subpoena can be issued.  Wis. Stat. § 885.14(2)(b).  “News person” is designed to encompass both the person engaged in newsgathering and the entity for which he or she is working.  Wis. Stat. § 885.14(1).

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V. Procedures for issuing and contesting subpoenas

The shield law imposes rigid requirements before a subpoena can be issued to a member of the news media. If the information sought is confidential, it cannot be obtained by subpoena under any circumstance.

For non-confidential information, a subpoena compelling a news person to testify about or disclose or produce any news, information, or source can be issued only by a circuit court, not an attorney.  Before such a subpoena will be issued, the news person must receive notice and have an opportunity to be heard.  Wis. Stat. § 885.14(2)(b).

The person requesting the subpoena must establish, by clear and convincing evidence,

  1. In a criminal prosecution or investigation that there are reasonable grounds to believe that a crime has occurred.
  2. In a civil action or proceeding that the complaint states a claim upon which relief may be granted.

Wis. Stat. § 885.14(2)(b).

Once those prerequisites are satisfied, the circuit court may issue a subpoena only if four additional conditions are all met:

  1. The news, information, or identity of the source is highly relevant to the investigation, prosecution, action, or proceeding.
  2. The news, information, or identity of the source is necessary to the maintenance of a party's claim, defense, or to the proof of an issue material to the investigation, prosecution, action, or proceeding.
  3. The news, information, or identity of the source is not obtainable from any alternative source for the investigation, prosecution, action, or proceeding.
  4. There is an overriding public interest in the disclosure of the news, information, or identity of the source.

Wis. Stat. § 885.14(2)(c).

Wisconsin's civil subpoena procedures are set out in Wis. Stat. chapter 885.

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A. What subpoena server must do

1. Service of subpoena, time

Unless the parties agree otherwise, notice of a third-party subpoena issued for discovery purposes must be provided to all parties at least 10 days before the scheduled deposition in order to preserve the right to object. Wis. Stat. § 805.07 (b). There is no statutory mandate on how far in advance of a proceeding a subpoena must be served.

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2. Deposit of security

A party serving a subpoena in Wisconsin must provide the witness a statutory fee and mileage reimbursement with the subpoena. See Wis. Stat. § 885.06. Wisconsin statutes do not require the subpoenaing party to deposit any security in order to procure testimony or materials of the reporter.

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3. Filing of affidavit

A party serving a subpoena in Wisconsin need not file an affidavit with the court.

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4. Judicial approval

Subpoenas issued by an attorney do not require judicial approval, but they must be approved and signed as mandated by Wis. Stat. § 885.01. The shield law changes this requirement for subpoenas issued to any “news person,” however:  only “a circuit court may issue” such a subpoena.  Wis. Stat. § 885.14(2)(b).

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5. Service of police or other administrative subpoenas

There are no special rules in Wisconsin regarding the service of police or other administrative subpoenas.

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B. How to Quash

1. Contact other party first

Wisconsin does not require a party to contact or provide notice to the subpoenaing party before moving to quash, but the practice is recommended. Many attorneys are not aware of the shield law and are willing to voluntarily withdraw a subpoena after they learn of it. Before moving to quash, the reporter's attorney should provide the subpoenaing party a copy of section 885.14 and explain the reporter's privilege in Wisconsin.

 

Given the shield law’s requirement that a subpoena to a “news person” be issued only by a court following notice and an opportunity to be heard, a news person should have an opportunity to object to a subpoena before it is issued.  However, attorneys may attempt to subpoena a “news person” without complying with the shield law’s procedural requirements. Under those circumstances, a motion to quash may be the most effective means of asking the court to rule that the subpoena is invalid.

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2. Filing an objection or a notice of intent

Wisconsin statutes do not require a party to file an objection or notice of intent to quash. See Wis. Stat. § 805.07.

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3. File a motion to quash

a. Which court?

A party should file the motion to quash in the court from which the subpoena was issued. See Wis. Stat. § 807.02.

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b. Motion to compel

A party filing a motion to quash should not wait for a motion to compel.

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c. Timing

A motion to quash must be served no later than five business days before the hearing on the motion. See Wis. Stat. § 801.15(4).

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d. Language

A motion to quash should set forth the basis for the motion, addressing section 885.14’s procedural and substantive requirements for issuing a subpoena to a “news person.”  Specifically, the motion should explain whether the information sought is confidential and hence subject to the shield law’s absolute privilege, in which case a subpoena cannot be issued under any circumstance.  If the qualified privilege applies, the motion should argue that the subpoena is invalid if not issued by the court following notice and an opportunity to be heard.  Furthermore, the motion should address the elements the court must consider before issuing such a subpoena, which appear at Wis. Stat. § 885.14(2)(b), (c).

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e. Additional material

A copy of section 885.14 should be attached to the motion to quash for ease of reference.

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4. In camera review

a. Necessity

The law does not require the court to conduct an in camera review of materials or to interview the reporter before deciding a motion to quash.

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There is no authority in Wisconsin about the consequences of consent to an in camera review.

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c. Consequences of refusing

A reporter who refuses to consent to an in camera review may be held in contempt under chapter 785, as the court may simply refuse to apply the privilege.

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5. Briefing schedule

The briefing schedule for a motion to compel or to quash generally is subject to local rules; but in all cases, the motion must be served no later than five business days before any hearing on the motion. See Wis. Stat. § 801.15(4).

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6. Amicus briefs

Wisconsin courts at all levels routinely accept amicus briefs. Procedural rules for filing an amicus brief in the appellate courts are set forth in Wis. Stat. § 809.19(7). In appeals, nonparties must request permission to file an amicus brief, identify their interest in the case, and state why a brief filed by that person is desirable. The motion must be filed no later than 14 days after the respondent's brief is filed, and the brief must be filed within the time specified by the court.

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VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

For non-confidential information, a subpoena compelling a news person to testify about or disclose or produce any news, information, or source can be issued only by a circuit court, not an attorney.  Before such a subpoena will be issued, the news person must receive notice and have an opportunity to be heard.  Wis. Stat. § 885.14(2)(b).

The person requesting the subpoena must establish, by clear and convincing evidence,

  1. In a criminal prosecution or investigation that there are reasonable grounds to believe that a crime has occurred.
  2. In a civil action or proceeding that the complaint states a claim upon which relief may be granted.

Wis. Stat. § 885.14(2)(b).

Once those prerequisites are satisfied, the circuit court may issue a subpoena only if four additional conditions are all met:

  1. The news, information, or identity of the source is highly relevant to the investigation, prosecution, action, or proceeding.
  2. The news, information, or identity of the source is necessary to the maintenance of a party's claim, defense, or to the proof of an issue material to the investigation, prosecution, action, or proceeding.
  3. The news, information, or identity of the source is not obtainable from any alternative source for the investigation, prosecution, action, or proceeding.
  4. There is an overriding public interest in the disclosure of the news, information, or identity of the source.

Wis. Stat. § 885.14(2)(c).

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B. Elements

1. Relevance of material to case at bar

For a court to issue a subpoena under the shield law’s qualified privilege, the non-confidential information sought must be “highly relevant to the investigation, prosecution, action, or proceeding.”  Wis. Stat. § 885.14(2)(c)1.

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2. Material unavailable from other sources

For a court to issue a subpoena under the shield law’s qualified privilege, the non-confidential information sought must not be “obtainable from any alternative source for the investigation, prosecution, action, or proceeding.”  Wis. Stat. § 885.14(2)(c)3.

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a. How exhaustive must search be?

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

c. Source is an eyewitness to a crime

3. Balancing of interests

For a court to issue a subpoena under the shield law’s qualified privilege, there must be “an overriding public interest in the disclosure of the news, information, or identity of the source.”  Wis. Stat. § 885.14(2)(c)4.

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4. Subpoena not overbroad or unduly burdensome

No special procedural rules or defenses apply to the reporter's privilege when determining whether a subpoena is overbroad or unduly burdensome.

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5. Threat to human life

There is no authority in Wisconsin that specifically requires courts to weigh whether the information subpoenaed involves a threat to human life.

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6. Material is not cumulative

For a court to issue a subpoena under the shield law’s qualified privilege, the non-confidential information sought must be “necessary to the maintenance of a party's claim, defense, or to the proof of an issue material to the investigation, prosecution, action, or proceeding.”  Wis. Stat. § 885.14(2)(c)2.

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7. Civil/criminal rules of procedure

A court may quash or modify by protective order a frivolous or unduly burdensome subpoena. See Wis. Stat. § 805.07(3).

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8. Other elements

C. Waiver or limits to testimony

1. Is the privilege waivable?

The shield law explicitly provides that a new person’s “disclosure to another person or dissemination to the public of news, information, or the identity of a source” protected under the statute “does not constitute a waiver of” the shield law’s “protection from compelled disclosure.” Wis. Stat. § 885.14(4).  Generally, however, the holder of a privilege has the power to waive it by words or by conduct expressing an intention to relinquish the right. See Wis. Stat. § 905.11.

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2. Elements of waiver

a. Disclosure of confidential source's name

Under the shield law, the privilege is not waived by the reporter's disclosure of a confidential source's name.  Wis. Stat. § 885.14(4).

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b. Disclosure of non-confidential source's name

Under the shield law, the privilege is not waived by the reporter's disclosure of a non-confidential source's name.  Wis. Stat. § 885.14(4).

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c. Partial disclosure of information

Under the shield law, the privilege is not waived by a reporter's partial disclosure of information.  Wis. Stat. § 885.14(4).

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d. Other elements

3. Agreement to partially testify act as waiver?

It is unclear whether a reporter’s agreement to partially testify would waive the privilege.  The privilege is not waived by “disclosure to another person or dissemination to the public,” Wis. Stat. § 885.14(4), which may be broad enough to encompass an agreement to partially testify.

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VII. What constitutes compliance?

There is no authority in Wisconsin addressing what members of the news media must do to comply with a valid subpoena that is not subject to the privilege. Generally, a person must make a good faith effort to comply with any subpoena. See generally Ne. Corp. Ctr. v. Bd. of Review, 610 N.W.2d 511 (Wis. Ct. App. 2000).

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A. Newspaper articles

Printed materials purporting to be newspapers or periodicals are self-authenticating, and extrinsic evidence of authenticity is not required as a condition precedent to their admissibility. See Wis. Stat. § 909.02.

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B. Broadcast materials

Broadcast materials are not self-authenticating, and extrinsic evidence of authenticity is required as a condition precedent to the admissibility.

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C. Testimony vs. affidavits

There is no authority specifically related to the reporter's privilege addressing whether sworn affidavits can take the place of in-court testimony to confirm that an article was true and accurate as published. Generally, however, Wisconsin courts consider such testimony inadmissible hearsay.

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D. Non-compliance remedies

There is no authority in Wisconsin specifically related to the remedies available to force a journalist to comply with a valid subpoena. Generally, however, the court can resort to the laws of contempt to compel compliance with valid subpoenas. See Wis. Stat. ch. 785.

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1. Civil contempt

No Wisconsin appellate opinions address the issue. The penalties for civil contempt are set forth in Wis. Stat. § 785.04(1).

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a. Fines

The court may levy a fine against a reporter held in civil contempt not to exceed $2,000 for each day the contempt of court continues, not to exceed six months. See Wis. Stat. § 785.04(1)(b) and (c).

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b. Jail

The court may impose a jail sentence against a reporter held in civil contempt only so long as the contempt continues and, in no event, longer than six months. See Wis. Stat. § 785.04(1)(b).

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2. Criminal contempt

No Wisconsin appellate opinions address the issue in connection with a subpoena issued to a reporter. The penalties for criminal contempt are defined in Wis. Stat. § 785.04(2). If a district attorney, attorney general, or special prosecutor brings a charge of contempt, a court may impose a fine of not more than $5,000, imprisonment for not more than one year, or both for each separate charge. A judge, in order to protect the authority and dignity of the court, may on his or her own impose for each separate contempt of court a fine of not more than $500, imprisonment for not more than 30 days, or both.

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3. Other remedies

There are no other remedies to enforce disclosure in Wisconsin.

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VIII. Appealing

A. Timing

Generally, if a written notice of judgment or order appealed from is given within 21 days of the judgment or order, an appeal must be initiated within 45 days of the entry of the judgment or order. See Wis. Stat. § 808.04(1). If no written notice is given, an appeal must be initiated within 90 days of entry. Id.

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1. Interlocutory appeals

Although no Wisconsin court has directly addressed the issue as it relates to the reporter's privilege, the denial of a motion to quash is a final judgment as it relates to a non-party reporter and may be appealed as of right. See Wis. Stat. § 808.03(1). In Wisconsin, the right to appeal is not restricted to named parties. Instead, any "person" may file a notice of appeal to a final judgment or final order. See Wis. Stat. § 809.01; 809.10.

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2. Expedited appeals

Either party may seek to expedite an appeal pursuant to Wis. Stat. § 809.17.

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B. Procedure

1. To whom is the appeal made?

Generally, an appeal should be initiated by filing a notice of appeal and filing fee with the clerk of the trial court in which the judgment or order appealed from was entered. See Wis. Stat. § 809.10. The notice must specify which judgment or order is being appealed, and a copy must be served on the court of appeals, along with a docketing statement. Id.

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2. Stays pending appeal

A person seeking relief pending appeal must file a motion in the trial court and show why the motion is justified. If it is impractical to seek relief in the trial court, however, a motion to a different court must show, in addition to justification, that it was impractical to seek relief in the trial court. These motions must be filed in accordance with Wis. Stat. § 809.14. See Wis. Stat. § 809.12.

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3. Nature of appeal

There is no authority in Wisconsin discussing the nature of appeals concerning a motion to quash a subpoena based on the reporter's privilege.

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4. Standard of review

A trial court's decision whether to quash a subpoena is discretionary. See Kurzynski, 538 N.W.2d at 560. Its "discretionary determination will be upheld on appeal if it is 'consistent with the facts of record and established legal principles.'" Id. citing Lievrouw v. Roth, 495 N.W.2d 850, 859-60 (Wis. Ct. App. 1990).

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5. Addressing mootness questions

No Wisconsin court has addressed the mootness issue when a trial or grand jury session for which a reporter was subpoenaed has concluded.

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6. Relief

There is no authority in Wisconsin that addresses this issue.

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IX. Other issues

A. Newsroom searches

There is no authority in Wisconsin that addresses this issue.

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B. Separation orders

There is no authority in Wisconsin that addresses the issue.

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C. Third-party subpoenas

Wisconsin’s shield law explicitly addresses the issuance of subpoenas to news persons.

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D. The source's rights and interests

There is no authority in Wisconsin that addresses the issue.

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