Skip to content

1. Is the privilege waivable?

Posts

  • 10th Circuit

    Yes, a reporter should never volunteer any information to anyone, beyond what appears in the published article, after a story has been published. Any voluntary disclosure of information beyond what was published may be deemed a waiver of the privilege under the First Amendment. Cf. United States v. Bahe, 128 F.3d 1440, 1442 (10th Cir. 1997) (discussing in general waiver of testimonial privileges through voluntary disclosure).

    view more
  • 1st Circuit

    The First Circuit courts have not directly addressed the issue of when a reporter is deemed to have waived the privilege. However, the disclosure of a confidential source or confidential information could function as a “waiver” in that First Amendment interests in non-disclosure would be substantially diminished.

    In Fischer v. McGowan, the Rhode Island district court addressed this issue under Rhode Island state law. 585 F. Supp. 978 (D.R.I. 1984). Rhode Island has a reporter shield law which protects reporters from being forced to reveal confidential sources of information. Id. at 984. However, the Rhode Island shield law does not apply to information that has already been made public, nor does it apply where the defendant asserts the privilege as a defense to a defamation action or in secret government proceedings (such as grand jury hearings). Id. The reporter in Fischer wrote an article in which he identified a general class of persons from whom he could have obtained the information. Id. at 985. In the article, the reporter also identified two of his sources, but he refused to name others. Id. The subpoenaing party claimed that the reporter waived his right to assert the privilege with respect to his unnamed sources, since he had revealed two other sources and mentioned a class of people from whom his information may have been derived. Id. The court rejected this argument and held that this type of “partial disclosure” does not result in a finding of waiver. Id. at 986.

    view more
  • 2nd Circuit

    Under the First Amendment, reporters may waive the privilege. Shield Law statutes may have specific provisions for waiver of the privilege as well. See Baez v. JetBlue Airways, 09 CV 596 ENV RML, 2012 WL 5471229, at *2 (E.D.N.Y. Nov. 9, 2012) (finding privilege under New York Shield Law waived due to voluntary disclosure of information to a person “not otherwise entitled to claim the exemptions provided by [N.Y. Civ. Rights law § 79-h(g)”); see also In re Air Crash at Belle Harbor, New York on November 12, 2001, 241 F.R.D. 202, 204 (S.D.N.Y. 2007).

    The source may not waive the privilege nor may the source invoke the privilege to protect information that the reporter may choose to reveal. See Small v. UPI, 1989 U.S. Dist. Lexis 12459 (S.D.N.Y. Oct. 20, 1989) (Roberts, Mag.).

    view more
  • 3rd Circuit

    Courts in the Third Circuit have described a number of actions and circumstances that do not constitute a waiver of the privilege. For example, because the privilege belongs to the reporter, it cannot be waived by the source, even where the source voluntarily identifies herself. Criden, 633 F.2d at 359-60; but see id. at 360 (although not waiver, source's self-identification tipped balance of interests between party's need for testimony and reporter's First Amendment rights). Courts have also found that partial testimony does not waive the privilege as to other matters. See, e.g., Sklar v. Ryan, 752 F. Supp. 1252, 1267 (E.D. Pa. 1990). Finally, the presence of a third party during an interview does not constitute a waiver if the third party is in some fashion connected to the interview. Damiano, 168 F.R.D. at 498-99 (reporter's decision to permit Bob Dylan's publicist to attend interview with Dylan did not waive privilege). And, as noted above in section III.F., with respect to the federal privilege, the courts have held that publication is not itself a waiver. (Publication can, however, operate as a waiver under state shield laws. See § III.F supra.)

    By the same token, however, the Court of Appeals has suggested that a reporter might waive the privilege if he or she filed suit to vindicate his or her own rights in a matter to which the privileged information was somehow relevant. See Riley, 612 F.2d at 716.

    view more
  • 4th Circuit

    At least one court in the Fourth Circuit has found partial waiver of the privilege where the reporter had disclosed the source’s name and some information about his reporting to a third party. See United States v. Sterling, 818 F.Supp.2d 945, 947 (E.D. Va. 2011) rev’d on other grounds, 742 F.3d 482 (4th Cir. 2013).  See also McCoy v. City of Columbia, 2012 WL 2327785 *3 (D.S.C. June 19, 2012) (discussing waiver).

    view more
  • 5th Circuit

    At least one Fifth Circuit case implies that in some circumstances the privilege may be waived by the source. In a civil action against a police officer, the district court had upheld a reporter's invocation of the privilege against disclosing tapes of a conversation with the officer. In dicta, the Fifth Circuit criticized the lower court's enforcement of the privilege, because the officer was evidently not a confidential source and because he had expressly waived the privilege. See Pressey v. Patterson, 898 F.2d 1018, 1022 n.4 (5th Cir. 1990). Thus, Pressey may indicate that, at least where the material in question relates directly to the source and is not merely the reporter's work product, the source is empowered to waive the privilege. But see Holland v. Centennial Homes, Inc., 1993 WL 755590, at *6 n.4, 22 Media L. Rep. 2270 (N.D. Tex. 1993) (noting that the Pressey footnote did not address whether the reporter had waived the privilege).

    view more
  • 6th Circuit

    There is no statutory or case law addressing this issue. In In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987), the Sixth Circuit suggested, but did not decide, that a journalist's interview of confidential sources in plain view in a public place might defeat the journalist's asserted need to maintain the confidentiality of the sources.

    Failing to expressly assert First Amendment protection when formally objecting to a subpoena may be a waiver. See Fed. R. Civ. P. 45(d).

    view more
  • 7th Circuit

    There is no federal statutory or federal case law on this issue in the Seventh Circuit.

    view more
  • 8th Circuit

    Fridell suggests that the privilege is waivable but finds no waiver under the facts of the case. See J.J.C. v. Fridell, 165 F.R.D. 513, 517 (D. Minn. 1995) (finding that “[v]oluntary disclosure of information covered by a privilege could, but does not mandate, waiver of the privilege”).

    view more
  • 9th Circuit

    Yes.  Like other privileges, the journalist’s privilege may be waived. Michael v. Estate of Kovarbasich, No. 15-00275-MWF, 2015 WL 8750643, at *4 (C.D. Cal. Dec. 11, 2015). And courts have held that “[f]airness requires such a waiver where a journalist has provided information to one litigant but refuses to provide that same information to an opposing party.” Id. For instance, in Ayala v. Ayers, 668 F. Supp. 2d 1248, 1250 (S.D. Cal. 2009), the court found that an author had impliedly waived the journalist’s privilege by producing his manuscript to one side’s counsel. But see Michael, 2015 WL 8750643, at *5 (where a journalist released “non-prejudicial information to both parties” and potentially possessed undisclosed information “that aids one litigant and not the other,” a waiver was not found).

    In the Ninth Circuit, the reporter’s privilege belongs to the journalist alone and cannot be waived by anybody other than the journalist. See L.A. Mem’l Coliseum Comm’n, 89 F.R.D. at 494 (granting the reporters’ motion to quash because the journalist’s privilege protected the reporters’ sources and work product despite the fact that the sources voluntarily disclosed their identities).

    view more
  • Alabama

    There is no Alabama statutory or reported case law addressing this issue, but a federal court sitting in the state held that a reporter waived the privilege by discussing a news story with an attorney and by signing an affidavit about a conversation between the reporter and a source. Pinkard v. Johnson, 118 F.R.D. 517 (N.D. Ala. 1987).

    view more
  • Alaska

    Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Various trial courts have recognized and applied the qualified constitutional privilege, and in doing so have not articulated circumstances constituting waiver of the privilege or standards for determining that the privilege has been deemed waived. The subpoenaing party in Management Information Technologies, Inc. v. Alyeska Pipeline Services Co., 151 F.R.D. 471 (D.D.C. 1993) tried to argue that any privilege had been waived, in part because the source of the information was already known and had talked about the documents at issue, but the court did not accept this argument.

    view more
  • Arizona

    In Cooper Tire, the court assumed for purposes of its decision that the privilege was subject to waiver.  In doing so, however, the court noted that it made this assumption only because it found that waiver had not, in fact, occurred. Id.  (Assuming arguendo that the A.R.S. § 12–2237 privilege can be waived, neither KNXV's litigation position nor its limited disclosures support a waiver finding in this case.”).

    view more
  • Arkansas

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

    view more
  • California

    Under California Code of Civil Procedure § 1986.1, “[n]o testimony or other evidence given by a journalist under subpoena in a civil or criminal proceeding may be construed as a waiver of the immunity rights provided by subdivision (b) of Section 2 of Article I of the California Constitution.” Consequently, partial disclosure of information should not result in waiver of protection for any information that was not actually disclosed. Id.; see also Playboy Enterprises, Inc. v. Superior Court, 154 Cal. App. 3d 14, 23, 201 Cal. Rptr. 207 (1984); Fost v. Superior Court, 80 Cal. App. 4th 724, 735, 95 Cal. Rptr. 2d 620 (2000). Allowing in camera review of the information sought also should not be deemed a waiver of the reporter’s privilege. Sci-Sacramento, Inc. v. Superior Court, 54 Cal. App. 4th 654, 661-62, 62 Cal. Rptr. 2d 868 (1997).

    However, because the shield law protects only unpublished information and the identity of sources, information that has been “published” may not be protected by the shield law. No reported California decision has found the privilege to have been waived as a result of the reporter’s disclosure of unpublished information. However, some cases have suggested that waiver might be found. For example, in Rosato v. Superior Court, the dissenting opinion asserted that

    To protect the privilege the newsman must avoid answering any questions which might result in an actual or constructive waiver of the privilege. By voluntarily answering questions as to some facts which would lead to the source, he will be held to have waived the privilege as to all other facts connected therewith.

    51 Cal. App. 3d 190, 233, 124 Cal. Rptr. 427 (1975) (citations omitted). The dissent mentioned Farr v. Superior Court, 22 Cal. App. 3d 60, 70, 99 Cal. Rptr. 342 (1971), as a “clear example of such a waiver,” asserting that “by admitting that he had received the information from three persons subject to the court’s order, Farr impliedly waived his right not to disclose their identities.” Id. However, because the Farr court did not explicitly evaluate any claim of waiver, it does not provide any basis for this argument.

    view more
  • Colorado

    Under the Colorado Press Shield Law it is possible to waive the privilege. However, the statute clarifies that the waiver of the privilege is limited to information actually published, and does not extend to information not actually published, even if this information is related to the subject matter of the published information. C.R.S. § 13-90-119(4). The statute states that the "privilege of nondisclosure established by subsection (2) of this section may be waived only by the voluntary testimony or disclosure of a newsperson that directly addressed the news information or identifies the source of such news information sought. A publication or broadcast of a news report through the mass media concerning the subject area of the news information sought, but which does not directly address the specific news information sought, shall not be deemed a waiver of the privilege of nondisclosure as to such specific news information."

    view more
  • Connecticut

    There are no cases on this subject. It is best to assume, however, that like any other testimonial privilege, it is waivable by its holder. The Shield Law provides that publication of information "shall not constitute a waiver of the protection from compelled disclosure provided in said subsection with respect to any information that is not published or disseminated.

    view more
  • D.C. Cir.

    Case law in this Circuit suggests that the reporter’s privilege, like other evidentiary privileges, is waivable.  E.g., Alexander v. Nixon, 444 F. Supp. 1195, 1199-1200 (D.D.C. 1978) (suggesting that if a reporter brings suit in which his sources may have relevant information, the reporter “waives his qualified privilege of silence”).  As the privilege belongs to the reporter, it can be waived only by the reporter.  See In re Miller, 438 F.3d 1141, 1177 (D.C. Cir. 2006) (Tatel, J., concurring in the judgment) (citing case law for the proposition “that only reporters, not sources, may waive the privilege”).  A source’s attempted waiver is thus irrelevant.  But see Lee v. Dep’t of Justice, 401 F. Supp. 2d 123 (D.D.C. 2005) (ordering reporter “to contact each and every one of his . . . sources to inform them of the Court’s [contempt] order so that, should they release him from his pledge of confidentiality, [the reporter] can reconsider whether he needs to further resist the order of the Court and, perhaps, this matter can become moot without further litigation”).

    view more
  • Delaware

    Because the privilege belongs to the reporter, she may waive it. However, a reporter's decision to waive with respect to certain facts does not waive the privilege with respect to other facts for which she continues to claim the privilege. Likewise, third party disclosure does not constitute waiver. 10 Del. C. § 4325.

    view more
  • District of Columbia

    The D.C. courts have not addressed or construed the scope of D.C. Code § 16-4704, the statute’s waiver provision.  Under the plain terms of the statute, however, the absolute privilege as to media sources is not waivable, and the publication by the news media or the dissemination by a person employed by the news media of a portion of the news or information protected by the D.C. shield law does not constitute a waiver of the privilege.

    view more
  • Florida

    Section 90.5015, Florida Statutes expressly states that "[a] professional journalist does not waive the privilege by publishing or broadcasting information." § 90.5015(4), Fla. Stat. (2016) (emphasis added). Indeed, the legislative history of the statute suggests that both the Florida House of Representatives and Florida Senate intended that the privilege be protected against waiver. See House Bill Analysis ("the privilege created by [the journalist's privilege statute] would not be waived by a journalist's full or partial disclosure of the information sought"); Senate Staff Analysis ("disclosure of the information as the result of a successful challenge to the privilege does not constitute a waiver of the privilege"). The statute does not address whether other disclosures may constitute a waiver.

    The Fifth District Court of Appeal of Florida has twice, within the same few months, addressed the issue of waiver of Florida's journalists' privilege. In Ulrich v. Coast Dental Serv., 739 So. 2d 142 (Fla. 5th DCA 1999), the court distinguished the journalist's privilege from others based on the fact that the reporter's privilege is not conditioned upon a prior agreement of confidentiality. Id. at 143-144. Thus, the journalist's privilege protects both confidential and non-confidential information. The court held that this logically leads to the conclusion that disclosure of the information to a third party does not constitute a waiver. See id. at 144. Accordingly, a journalist does not waive the privilege by speaking with the parties to the underlying proceeding or to their legal representatives. Wilensky v. Gooding, 31 Media L. Rep. 1641 (Fla. 7th Cir. Ct. Apr. 7, 2003); Seo v. Kim, 30 Media L. Rep. 1799 (Fla. Cir. Ct. Apr. 9, 2002).

    One month after Ulrich, the Fifth District found a waiver of the privilege in a case where the journalist was a party to the underlying lawsuit. In News-Journal Corp. v. Carson, 741 So. 2d 572 (Fla. 5th DCA 1999), the plaintiff sued for libel a journalist and the newspaper for which the journalist worked. The newspaper attached an unemployment form to an affidavit placed in the public court file. The court held that the privilege was waived as to the contents of the form by the act of filing. See id. at 574. Thus, disclosure of the information in the public records may constitute a waiver of the privilege as to that information.

    The privilege has been held applicable to the identities of confidential sources whose names were inadvertently disclosed. TheStreet.com, Inc. v. Carroll, 20 So.3d 947, 949-50 (Fla. 4th DCA 2009).

    view more
  • Georgia

    Under settled Georgia law, the privilege belongs to the reporter. See, e.g., In re Paul, 270 Ga. 680, 686 (1999) ("The reporter's privilege belongs to the person engaged in the gathering and dissemination of news."). The privilege can be waived by a reporter, but Georgia law is generally hostile to claims of unintentional waiver. See, e.g., Kennestone Hosp. v. Hopson, 273 Ga. 145 (2000).

    Publication of "part of the information gathered does not waive the privilege as to all of the information gathered on the same subject matter because it 'would chill the free flow of information to the public.'" In Re Morris Communications Co., 258 Ga. App. 154, 155) (2002) (quoting In re 9-11-2Paul, 270 Ga. App. at 686).  Bateman v. Summit Logistics Servs., 2013 U.S. Dist. LEXIS 50692 (M.D. Ga. 2013) (same).

    view more
  • Hawaii

    There are no reported cases.

    view more
  • Idaho

    There are no cases involving the media.

    view more
  • Illinois

    Despite the lack of a waiver provision in the Statute, the Illinois courts have indicated that the Statute’s protections can be waived under a fact-specific analysis.  See, e.g., People ex. rel. Scott v. Silverstein, 89 Ill. App.3d 1039, 412 N.E.2d 692 (1980) (rejecting waiver argument); Simon v. Northwestern Univ., 321 F.R.D. 328, 45 Media L. Rep. 1961 (N.D. Ill. 2017) (accepting waiver argument).

    Given the dearth of case law addressing waiver of the privilege, the Silverstein court looked to other evidentiary privileges, such as attorney-client, psychiatrist-patient, and informer’s privileges, which have more defined waiver provisions. 89 Ill. App.3d at 1043. The court found that these privileges and their waivers are not analogous to the reporter’s privilege because they refer to confidential information only. In contrast, the reporter’s privilege extends non-confidential information as well. Id. In addition, the reporter’s privilege is unique in that it plays an important role in the exchange of information between the press and the public, whereas the other privileges only involve the exchange of information between individuals.  Id.

    view more
  • Indiana

    Indiana courts have recognized that the privilege is waivable. See In re Wireman, 367 N.E.2d 1368, 1371 (Ind. 1977); Northside Sanitary Landfill, Inc. v. Bradley, 462 N.E.2d 1321, 1325 (Ind. App. 1984). In Northside Sanitary Landfill, the court said a credible argument could be made that a reporter waived her privilege by failing to claim it at her deposition. Northside Sanitary Landfill, 462 N.E.2d at 1325. However, that case was decided on grounds other than waiver.

    view more
  • Iowa

    The reporter's privilege protection can be waived only by the privilege holder. Waterloo/Cedar Falls Courier, 646 N.W.2d at 102. In Waterloo/Cedar Falls Courier, the subpoenaing college asserted that the editors had waived the privilege when their newspaper sued the college. Id. The Court responded that "the Courier is not the holder of the reporter's privilege, but the privilege is strictly held by the editors and is subject to waiver only by their actions." Id. (citing United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980) (stating that the privilege belonged to the news organization (CBS) and the privilege can only be waived by its holder); Los Angeles Mem'l Coliseum Comm’n v Nat’l Football League, 89 F.R.D. 489, 494 (D.C. Cal. 1981) (stating that the privilege belongs to the journalist alone and the journalist is the only person capable of waiving it); Diaz v. Eighth Judicial Dist. Ct. ex rel. County of Clark, 993 P.2d 50, 57 (Nev. 2000) (holding that the privilege belongs to the journalist)). The Court continued that even if the editors were a party to the action, "their mere status as litigants is not sufficient to constitute a waiver of the privilege." Id. If the editors were a party to the action and they placed the privileged materials at issue by relying on it to pursue their claim, the privilege would be waived. Id. The editors avoided placing the privileged materials at issue by not using it in the litigation. Id.

    view more
  • Kansas

    Yes. See Section VI.C.

    view more
  • Kentucky

    Lexington Herald Leader suggests that the privilege against disclosure of a confidential source may be waivable by publication. Lexington Herald-Leader Co. v. Beard, 690 S.W.2d 374 (Ky. 1984).

    view more
  • Louisiana

    In Becnel v. Lucia, 420 So.2d 1173, 1174 (La. App. 5th Cir. 1982), the court stated that "an owner-publisher or anyone similarly situated must be considered a 'reporter'" thereby enabling that person to claim the reporter's privilege. Therefore, disclosure of a confidential source's name to an editor should not be considered a waiver of the privilege because an editor can claim the privilege for himself.

    There is no other statutory language or Louisiana case law indicating whether the reporter's privilege may be waived by the reporter.

    view more
  • Maine

    Not addressed.

    view more
  • Maryland

    Yes, but under Md. Cts. & Jud. Proc. Code Ann. 9-112(e) disclosure of sources does not waive the privilege.

    view more
  • Massachusetts

    There is no case law on the issue of waiver, although the Massachusetts Supreme Court opinion in Petition for the Promulgation of Rules, 479 N.E.2d 154 (Mass. 1985), mentioned waiver as an issue to be resolved by courts in developing the privilege.

    view more
  • Michigan

    There have been no appellate cases discussing this precise issue.

    view more
  • Minnesota

    The Minnesota statute does not address the issue of waiver.

    In J.J.C. v. Fridell, the court held that "[v]oluntary disclosure of information covered by a privilege could constitute, but does not mandate, a waiver of the privilege." 165 F.R.D. 513, 517 (D. Minn. 1995).  In Ducklow v. KSTP-TV, LLC, 42 Med. L. Rep. 1431, 1435 (Minn. App. March 3, 2014) (unpublished), the Minnesota Court of Appeals recognized that privileges can be waived, but explained that “the privilege in this case extended only to those portions of the video that were not aired. Thus, disclosure of the aired portions of the video would not waive the privilege.”

    view more
  • Mississippi

    There is no statutory or case law addressing this issue.

    view more
  • Missouri

    There is no statutory or case law addressing this issue.

    view more
  • Montana

    The Montana statute specifically states that the privilege is waived only on the voluntary choice of the reporter, § 26-1-903, MCA.

    view more
  • Nebraska

    No published case law. Certainly, publishing or broadcasting information "waives" the privilege for such information. An unpublished trial court decision holds that the shield law privilege was not waived by providing non-broadcast video footage to law enforcement authorities. Frolio v. Pinkelman, Doc. 1057, page 721 (Dist. Ct. Douglas County, NE, 1-10-07).

    view more
  • Nevada

    In Diaz v. Eighth Judicial District Court, 116 Nev. 88, 993 P.2d 50 (2000), the Nevada Supreme Court recognized that the privilege belongs to the reporter. The privilege covers both published and unpublished information, so it will not be waived based upon publication of otherwise confidential information.

    view more
  • New Hampshire

    There is no statutory or case law addressing this issue. That said, disclosure of a source identity would likely constitute a waiver.

    view more
  • New Jersey

    The privilege belongs to the newsperson and may be waived, in whole or in part, by the newsperson.  Too Much Media, LLC v. Hale, 206 N.J. at 239; United States v. Cuthbertson, 630 F. 2d. 139 (3rd Cir. 1980).

    view more
  • New Mexico

    The original codification of the reporter’s privilege in New Mexico – which has since been superseded – declared that “[a]ny reporter may waive the privilege granted in this section.” Act of Mar. 28, 1967, ch. 168, § 1(C), 1967 N.M. Laws 978, 979 (superseded 1973). The present-day version of the statute, applicable only to nonjudicial proceedings, does not specifically mention the possibility of waiver. See NMSA 1978, § 38-6-7 (1973). Regarding the reporter’s privilege that obtains in judicial proceedings, general waiver principles govern the larger body of privilege law within which it falls. See Rule 11-511 NMRA (“A person who possesses a privilege against disclosure of a confidential matter or communication waives the privilege if the person voluntarily discloses or consents to disclosure of any significant part of the matter or communication. This rule does not apply if the disclosure is itself a privileged communication.”).

    view more
  • New York

    Under Civil Rights Law § 79-h(g),

    A person entitled to claim the exemption provided under subdivision (b) or (c) of this section waives such exemption of such person voluntarily discloses or consents to the disclosure of the specific information sought to be disclosed to any person not otherwise entitled to claim the exemptions provided by this section.

    Waiver is limited to only the particular information disclosed, and only when the person to whom the information is disclosed is not otherwise entitled to claim the privilege. For example, publication of a source's identity does not grant a waiver of privilege as it relates to information gleaned from that source. Furthermore, disclosure to another reporter or editor in the news organization is not deemed disclosure for the purposes of waiver. See Simpson v. Schneiderman, 21 Med. L. Rptr 1542 (Sup. Ct. Kings County 1973); Matter of Mark Peterson, NYLJ Oct 29, 1996 at 26 Col.4 (journalist privilege deemed waived by disclosure to someone other than journalist or editor); Wigand, 24 Med. L. Rep. 1720; People v Wolf, 69 Misc.2d 256, 261, 329 N.Y.S.2d 291, 297, aff'd, 39 A.D.2d 864, 333 N.Y.S.2d 299 (1st Dep't 1972) (waiver applies to statements made by the informer which are actually published or publicly disclosed).

    Disclosure to third parties who cannot claim the privilege will be considered a waiver only of the disclosed information. Matter of Dan, 80 Misc.2d 399, 363 N.Y.S.2d 493 (Sup. Ct. Erie County 1975) (privilege was waived when Dan gave statement about the events he observed during the Attica prison riots to Special Assistant Attorney General, gave a statement to the McKay Commission which were published, and answered questions before the grand jury, which were also published); See Guice-Mills v. Forbes, 12 Misc.3d at 857, 819 N.Y.S.2d at 436 (defendant who disclosed name of source to third party waived the privilege, but solely "with respect to the limited information shared").

    Once the material has been published, the privilege as it relates to the published material is deemed waived, since "[t]he statute … cannot be used as a shield to protect that which has already been exposed to view." Troiano, 486 N.Y.S.2d 991 at 994, quoting Wolf, 39 A.D.2d 864. See In the Matter of Grand Jury Subpoena Dated January 26, 2000, 269 A.D.2d 475, 703 N.Y.S.2d 230 (2d Dep't 2000); People v. Craver, 569 N.Y.S.2d 859; In re Grand Jury Subpoena Dated January 26, 2000, 269 A.D.2d 477, 711 N.Y.S.2d 888 (2d Dep't 2000) (since material in question had been broadcast or published, the privilege did not protect newscasters from testifying with respect to limited questions concerning the accuracy of statements contained in the broadcast).

    At least one court has held that even where the information has been "leaked" and subsequently disclosed, the waiver applies only to the leaked information. In Brown & Williamson v. Wigand, supra, the plaintiff tobacco company argued that a leak of portions of the transcript of a "60 Minutes" interview to the Daily News acted as a blanket waiver of all unpublished material related to the interview. Brown & Williamson, 24 Med. L. Rep. at 1721. The court rejected plaintiff's argument, stating that under plaintiff's interpretation a "specific but limited disclosure would become the launching pad for a massive, unlimited and unspecified foray into matters undisclosed but related to the disclosed information" which would "fly in the face of the purpose of the shield law." The Brown & Williamson court held that "even if, arguendo, CBS did authorize the leak to the Daily News, CBS waived its protection only to what was published by that newspaper, and the limited disclosure in the Daily News cannot serve as a basis to gain unfettered access to CBS news files or to depose reporters." Id. at 1724.

    Similarly, a federal court has held that a journalist does not necessarily waive the qualified privilege for nonconfidential information by conducting interviews in the presence of third parties. In Pugh v. Avis Rent a Car System, Inc., 1997 WL 669876 *5, 26 Med. L. Rep. 1311, 1316 (S.D.N.Y. 1997), the subpoenaed journalist had conducted an interview of several litigants in a discrimination action. The Pugh court held that

    The mere presence of third parties during an interview does not undermine the interests served by the qualified privilege, which allow a journalist to review privately his or her notes, tapes, or videotapes of an interview, and then decide what information to publish and how to incorporate it as part of a news story without fear that what he or she publishes can result in easy obtainment of those notes, tapes, and videotapes by litigants in search of any nonpublished material relevant to a lawsuit.

    Since the 1990 amendment to the Shield Law, at least one state court has held that if a confidential source later waives the absolute privilege, the material becomes "nonconfidential" and thus subject to the three-part test of the qualified privilege. People v. Lyons, 151 Misc.2d 718, 574 N.Y.S.2d 126 (City Ct. Buffalo 1991).

    In a recent case decided under federal law, a New York federal court held that a radio industry newsletter -- which was the plaintiff in a defamation action against another such newsletter -- had waived the reporters privilege with respect to confidential sources by putting the existence of and communications with the sources in issue. Inside Radio, Inc. v. Clear Channel Communications, 2002 WL 1446620 (S.D.N.Y. 2002). Inside Radio (IR) sued Clear Channel Communications (CCC) for defamation -- the allegedly defamatory statements being the published accusation by CCC in its newsletter hat IR had itself knowingly and deliberately publishing false and defamatory stories about CCC, and that IR had suggested that it had confidential sources for its stories about CCC when in fact it did not. Essentially, IR's claim was that it had been defamed by CCC's accusation that IR had defamed it.

    Because one of the allegedly defamatory statements by CCC was that IR did not have the confidential sources it claimed, by bringing the suit IR put the existence of these sources in issue; if it did not have the sources, the CCC articles were true (at least in this regard) and therefore not defamatory. Similarly, the IR "reporter's" state of mind -- whether he knew that the articles concerning CCC were false -- was also directly relevant to the issue of actual malice. The court held that "the question whether [IR] had any sources for the purportedly factual statements in the [IR] article and, if so, precisely what they told [IR] not only is clearly relevant, but it is pivotal to the claim or defense and unavailable from anyone but [IR]." Id. at *6. Accordingly, the court determined that IR had waived the journalists privilege in bringing its defamation claim and thereby putting the very existence of purported confidential sources and what they told IR directly in issue.

    While the court styled its decision as one involving waiver of the reporters privilege, it could just as easily (and perhaps more accurately) be described simply as a case in which the three-part test applied in Burke and its progeny was met, as the above-quoted language indicates.

    view more
  • North Carolina

    The North Carolina shield law does not discuss waiver of the privilege, and the issue of whether the reporter's privilege can be waived has not been decided in any reported decisions. See Fulmore v. Bledsoe, 221 N.C. App. 434, 727 S.E.2d 25 (N.C. App. 2012). While in Industrotech Constructors, Inc. v. Duke University, 67 N.C. App. 741, 743–44, 314 S.E.2d. 272, 274 (N.C. App. 1984) (a non-media case), the Court of Appeals stated that "it is well established in this state that even absolutely privileged matter may be inquired into where the privilege has been waived by disclosure," the journalist's privilege is unique in that it belongs to the journalist and not the source. Moreover, because its goal is to enhance the flow of information, it may be argued that the reporter may choose when and how to disclose information without waiving the privilege for other purposes.

    view more
  • North Dakota

    There is no North Dakota case law addressing whether a reporter waives the privilege through publication. Publication is one of the factors to consider in determining whether nondisclosure would result in a miscarriage of justice.

    view more
  • Ohio

    Where the source's identity has been revealed, the privilege conferred by the shield statute is waived only to the extent of the information publicly disclosed. See State v. Geis, 2 Ohio App.3d 258, 441 N.E.2d 803 (10th Dist. 1981).

    view more
  • Oklahoma

    There are no reported Oklahoma cases discussing this issue.

    view more
  • Oregon

    No statutory or case law addressing this issue.

    view more
  • Pennsylvania

    The privilege afforded by the Pennsylvania Shield Law can be waived by the reporter, but not by the source. Such waiver is limited only to the information “actually published or publicly disclosed . . . .” In re Taylor, 193 A.2d 181, 186 (Pa. 1963).

    There is no Pennsylvania case law directly addressing waiver under the First Amendment reporter’s privilege, but the Third Circuit has held that [t]he privilege belongs to [the media company], not the potential witnesses, and it may be waived only by its holder.” United States v. Criden, 633 F.2d 346, 359 (3d Cir. 1980). Some Pennsylvania courts have held that the privilege protects even information that has been published. See McMenamin v. Tartaglione, 590 A.2d 802, 811 (Pa. Commw. 1991), aff’d without op., 590 A.2d 753 (Pa. 1991). Thus, unlike the Pennsylvania Shield Law, publication does not amount to waiver, although it is possible it might be a factor in considering the privilege’s application.

    view more
  • Rhode Island

    The issue of waiver is not specifically addressed in the statute, and there are no Rhode Island Supreme Court cases on waiver of the privilege. However, the United States District Court for the District of Rhode Island determined that partial disclosure of confidential sources and/or information does not constitute a waiver of the privilege under the Rhode Island Shield Law. In Fischer v. McGowan, 585 F. Supp. 978 (D.R.I. 1984), plaintiffs sought disclosure of certain unnamed sources of an allegedly libelous article in an Australian newspaper regarding the financial troubles of an America's Cup yacht. The author of the article, who had not been named as a defendant, claimed privilege and moved to quash. Drawing on decisions from other jurisdictions, the court found that the reporter had not waived his privileges under the shield law by disclosing some of his sources or by providing a generic description of the undisclosed sources.

    view more
  • South Carolina

    There are no cases addressing the waiver of the privilege, but the South Carolina statute provides that the privilege belongs to the journalist, and that a person seeking to overcome the claim of privilege must establish waiver by clear and convincing evidence.

    view more
  • South Dakota

    There is no pertinent case law on this issue.

    view more
  • Tennessee

    There is statutory or case law on this issue, but it is generally understood by Tennessee lawyers that a journalist may waive the protection of the privilege and testify.

    view more
  • Texas

    In the civil context, publication of information, documents, or items privileged under the shield law is not a waiver of the privilege. See Tex. Civ. Prac. & Rem. Code §22.026. In the criminal context, publication of information, documents, or items privileged under the shield law is not a waiver of the privilege regarding sources and unpublished information, documents, or items. See Tex. Code Crim. Proc. art. 38.11, §7. But, the criminal statute does not apply to any information, document, or item that has been published; instead, the common law, as adopted pre-statute, continues to govern published information sought through criminal subpoenas. Tex. Code Crim. Proc. art. 38.11, §8. To date, there is no case law determining under what conditions the statutory privilege can be waived.

    view more
  • Utah

    There is no statutory or case law addressing this issue.

    view more
  • Vermont

    There are no reported Vermont cases discussing whether the reporter’s privilege may be waived.  The Vermont Shield Law states that “[t]he publication or dissemination of news or information shall not constitute a waiver of the protection from compelled disclosure. . . .”  12 V.S.A. § § 1615(c).

    view more
  • Virginia

    There is no case law in Virginia addressing whether the privilege is waivable by the reporter.  The Fourth Circuit, however, has held in dicta that a reporter waives the privilege by violating a confidentiality agreement and disclosing the identity of a source to a third party.  See United States v. Sterling, 724 F.3d 482, 508-09 (4th Cir. 2013) (refusing to quash a subpoena to a reporter to testify about the source of classified information received by the reporter in a criminal case against a former CIA officer).

    view more
  • Washington

    Washington's case law has not yet squarely addressed this issue.

    view more
  • West Virginia

    There is no West Virginia caselaw or statute addressing whether a journalist may be deemed to have waived the privilege. Because the privilege is constitutional in nature, it is likely the privilege may never be deemed to have been waived.

    view more
  • Wisconsin

    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.

    view more
  • Wyoming

    Not applicable.

    view more