6. Relief

An appeals court may affirm, dissolve or remand a finding of contempt and may affirm, deny or remand an order compelling disclosure.

The reporter’s attorney should request the First Circuit to vacate any order requiring disclosure of confidential sources or information.

If the district court refuses to quash a subpoena and the party trying to protect the information is held in contempt, the party protecting the information can appeal to the Second Circuit to quash the subpoena. If the Second Circuit disagrees with the court's decision to refuse to quash the subpoena, the Second Circuit has vacated the contempt citation rather than ordering the trial judge to reconsider the issues at stake. See, e.g., In re Dow Jones & Co., 182 F.3d 899 (2d Cir. 1999) (unpublished); In re Petroleum Products Antitrust Litig., 680 F.2d 5 (2d Cir. 1982), cert. denied, Arizona v. McGraw-Hill, Inc., 459 U.S. 909 (1982).

A federal court of appeals can reverse (i.e., quash the subpoena), modify the subpoena to make it valid, or remand the matter to the trial court if additional factual findings or other proceedings are necessary to determine whether the subpoena is valid and enforceable.

The Fourth Circuit has the authority to dissolve a district court’s contempt order, and it has been willing to do so rather than merely to order the trial judge to reconsider the issues. See Ashcraft, 218 F.3d 282, 288 (4th Cir. 2000) (reversing district court’s contempt order, thereby invalidating any contempt sanctions).

Depending on the particular circumstances of the case, the Fifth Circuit can dissolve a contempt order, can remand with instructions to consider further evidence or issues, or can remand with instructions on the treatment of any testimony or materials that a journalist may be compelled to produce. For example, in Miller, after deciding that the reporter enjoyed a qualified privilege, but that the privilege was overcome under the facts of the case, the Fifth Circuit remanded to the district court with instructions that the information the reporter would provide must be limited strictly for use in the pending litigation and be disclosed only to the counsel involved in the case. Miller v. Transamerican Press, Inc., 621 F.2d 721, 727, as modified, 628 F.2d 932 (5th Cir. 1980). Similarly, the Fifth Circuit in Selcraig dissolved the contempt order, held that the reporter enjoyed a qualified privilege, and remanded with specific instructions that the reporter's privilege could only be overcome if the district court first determined that the plaintiff had established a prima facie case for liability. In re Selcraig, 705 F.2d 789, 799-800 (5th Cir. 1983).

On appeal from a contempt order or a disclosure order, a reporter who has refused to comply with a subpoena should ask the Sixth Circuit to reverse and vacate the contempt judgment or disclosure order.

Whether the Sixth Circuit. would remand to the district court, rather than vacate the orders at issue, is not predictable.

Those courts that have accepted appeals on this issue have simply reversed the trial court's decision or upheld it. Commodity Futures Trading Comm'n v. Collins, 997 F.2d 1230, 1232 (7th Cir. 1993).

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

The Ninth Circuit has the power to vacate a contempt citation. See, e.g., Shoen v. Shoen, 48 F.3d 412, 418 (9th Cir 1995) (vacating a contempt citation against a defendant who refused to produce materials pursuant to a discovery request in the underlying defamation lawsuit); Shoen v. Shoen, 5 F.3d 1289, 1291 (9th Cir. 1993) (reversing and remanding an order that held an investigative reporter in contempt for refusing to divulge information that was gathered for use in his book). When the Ninth Circuit finds that a contempt citation was improperly levied by the district court, it typically reverses the order granting the contempt citation and remands the case back to the district court for consideration of the remaining issues. Id. at 1298.

If, at the trial court level, the judge denies the reporter's motion to quash, the reporter's attorney should seek a writ of mandamus from the appropriate appellate court, directing the lower court to quash the subpoena.

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, or matters pertaining thereto such as appropriate procedures for appeals, or the standards for reviewing trial court rulings. Various trial courts have recognized and applied the qualified constitutional privilege in a number of cases, and in none of these has testimony or production of documents been compelled. Therefore, issues concerning what relief might be sought from appellate courts from an adverse ruling, or sanction imposed, in connection with assertion of a reporter's privilege, have not been addressed.

The Rules of Procedure for Special Actions do not appear to impose any limits on the scope of relief that may be afforded in special action proceedings.

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

The reporter generally should seek a reversal of the contempt citation or the order compelling disclosure. California’s appellate courts routinely enter orders disposing of the controversy, rather than remanding to the trial court for reconsideration. E.g., Mitchell v. Superior Court, 37 Cal. 3d 268, 284, 690 P.2d 625, 208 Cal. Rptr. 152 (1984); Playboy Enters., Inc. v. Superior Court, 154 Cal. App. 3d 14, 29, 201 Cal. Rptr. 207 (1984). The appellate court will remand to the trial court for consideration if the decision answers a question of first impression, but rarely in other circumstances. E.g., In re Willon, 47 Cal. App. 4th 1080, 1102, 55 Cal. Rptr. 2d 245 (1996).

On an appeal of a Motion to Quash that has been denied, counsel should request that the court of appeals outline the test to be applied and request that the trial judge reconsider the issues in light of the appellate ruling. See, e.g., Gordon, 9 P.3d 1106, 1124. Other types of relief the appellate court can provide include reversing a lower court's order of contempt and vacating a lower court's order compelling responses to a subpoena. Id.

The reporter’s attorney should seek a reversal of the finding of contempt. The appellate court can, of course, reverse and remand to the trial court for further proceedings (e.g., application of proper legal standard, factual inquiry including all required elements, etc.).

A journalist may request that the appellate court reverse the district court’s order compelling compliance with a subpoena and likewise may request that the appellate court reverse a contempt order.  In re Sealed Case, 877 F.2d 83 (D.C. Cir. 1989) (affirming in part and reversing in part order for appellant to comply with subpoena and order holding appellant in contempt).

The statute is unclear whether an appellate court would dissolve a contempt citation or whether it would remand the matter to the trial judge to reconsider. No cases have addressed this issue.

In a pre-shield law case, Wheeler v. Goulart, 593 A.2d 173 (D.C. 1991), motion to vacate denied, 623 A.2d 1177 (D.C. 1993), a reporter held in contempt for refusing to answer certain questions unsuccessfully requested that the Court of Appeals reverse the Superior Court’s order compelling her to provide the information and holding her in contempt.

The appellate court should be asked to quash the order compelling testimony or disclosure. See, e.g., Morgan v. State, 337 So. 2d 951 (Fla. 1976); Times Publ’g Co. v. Burke, 375 So. 2d 297, 299 (Fla. 5th DCA 1979). The appellate court also may overturn a contempt conviction. See, e.g., Tribune Co. v. Huffstetler, 489 So. 2d 722 (Fla. 1986); Morgan v. State, 337 So. 2d 951 (Fla. 1976).

Georgia’s appellate courts are authorized to reverse an order compelling testimony, dissolve contempt citations, or take any other action needed to vindicate the privilege. See, e.g., In re Paul, 270 Ga. 680, 687, 513 S.E. 2d 219, 225 (1999) (“[W]e hold that the reporter's privilege protects Paul from disclosing the confidential source and undisclosed information that the state seeks in its motion to compel. Judgment reversed.”); Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808, 555 S.E. 2d 175 (2001) (reversing contempt citation), cert. denied, 537 U.S. 814 (2002).

There are no reported cases, but if the court will not quash the subpoena and the reporter is held in contempt, the reporter's attorney should strongly consider filing a writ of mandamus. Although such extraordinary writs are rarely granted, a contempt order is one situation where the appellate court might strongly consider granting such relief.

The reviewing court should be asked to vacate or dissolve the contempt order, or such lesser relief as may be particularly warranted in the facts of the case. Because most contempt orders are reviewed under the Idaho Supreme Court's original jurisdiction, which encompasses use of the so-called extraordinary writs, special attention should also be given to whether other of the extraordinary writs--such as mandamus or prohibition--are appropriate for the circumstances.

Illinois Appellate Courts have vacated and reversed contempt citations with remand to the trial court to reconsider the issues (see People v. Slover, 323 Ill. App. 3d 620, 624, 753 N.E.2d 554, 556-57 (2001); In re Arya, 226 Ill. App. 3d 848, 850, 589 N.E.2d 832, 833(1992)), and have reversed divestiture orders (see People v. McKee, 2014 IL App (3d) 130696, 24 N.E.3d 75, 43 Media L. Rep. 1123 (2014)).  In addition, the courts have reversed decisions denying a motion to quash the subpoena or upheld the motion to quash the subpoena when the subpoenaing party has not met its burden. See, e.g., In Re Special Grand Jury Investigation, 104 Ill. 2d 419, 472 N.E.2d 450 (1984); Cukier v. American Medical Ass’n, 259 Ill. App. 3d 159, 630 N.E.2d 1198 (1994); United States v. Lloyd, 71 F.3d 1256 (7th Cir. 1995).

A reporter's attorney should ask that the subpoena be quashed under the shield law and/or that any contempt citation be dissolved.

Generally, an appeal can result in a decision that the information need not be disclosed, that the information must be disclosed, or that the lower court must reconsider or remand in light of the appellate decision.

A reporter’s attorney should seek a reversal of the contempt conviction and a discharge.  If an interlocutory appeal from an adverse decision is allowed, and the district court stays the order during the pendency of the appeal, the aggrieved journalist would seek reversal of the district court’s order compelling the journalist to testify or produce information.

In terms of relief, an appellate court is empowered to reverse the lower court's decision, order a rehearing or dissolve the contempt.

If adjudged in contempt, a reporter may request that the contempt citation be set aside. See State of Louisiana v. Fontanille, 93-KH-935 (La. App. 5th Cir. 1/24/94) La. App. LEXIS 191, *7. In Fontanille, the Appellate Court set aside a contempt decree the district court issued against an investigative nonfiction book author who refused to answer questions about his interview with a criminal defendant. Id. The appellate court found that the author was constitutionally entitled to a qualified journalist's testimonial privilege and remanded the case to the trial court for the trial court to determine if the privilege should be upheld. Id.

Similarly, in Burns, the reporter sought reversal of the trial court's contempt citation imprisoning the reporter. Burns, 484 So.2d at 659. The Supreme Court of Louisiana found that the reporter's privilege applied and stated that "while a remand to determine whether disclosure of a reporter's source is essential to the public interest might be required in some cases, the informant in this case voluntarily identified himself when he learned of the contempt proceedings." Id. The court vacated the trial court's judgment and reversed the conviction and sentence. Id.

The Supreme Court will tailor relief to the circumstances.  The Court may remand "for further proceedings consistent with this decision” or enter a more direct order.  In cases decided on the issue of reporters’ privilege, the Maine Supreme Court has decided that disclosure is required and remanded accordingly.

Appellate courts can quash subpoenas. See Tofani v. State, 465 A.2d 413, 9 Media L. Rep. 2193 (Md. 1983).

An appellate court has broad discretion in fashioning relief.

As relief, the reporter should seek reversal of the trial court’s decision to not quash the subpoena in question. However, the court of appeals will fashion the relief it finds appropriate under the circumstances. MCR 7.205(E)(2). Often on the first appeal, the court of appeals will ask the trial court to reconsider in light of the factors identified by the court of appeals. If the trial court still does not make the correct decision in the eyes of the court of appeals, the court of appeals is more likely to issue a definitive ruling quashing or upholding the subpoena. However, the court of appeals does show deference to trial courts and usually tries to get the trial court to make the ultimate decision, as seen by the heightened standard of review upon appeal. See Federated Publ’ns Inc., 467 Mich. at 112, abrogated on other grounds by Herald Co., 475 Mich. at 463.

The typical results on appeal are a decision that the information need not be disclosed, that the information must be disclosed, or that the lower court must reconsider whether disclosure is necessary in light of the appellate court's discussion of the issues.

Appeals involving actual contempt orders are rare. In Thompson v. State, the Minnesota Supreme Court reversed an order holding a reporter in contempt (and ordering him jailed for ninety days) for refusing to answer the following question in a murder trial: "And who were the sources of your information for the news articles that you wrote in connection with the murder of Carol Thompson?" 170 N.W.2d 101, 102 (Minn. 1969). Although the supreme court noted the then-existing "paucity of authority" for the reporter's assertion of privilege, it disapproved of the "scattergun" question and stated,

No authority has been cited which would establish a basis for a finding of contempt of court for failure to answer a question with respect to sources as vague and imprecise as the one contained in the record. We are asked to assume that [the reporter] did in fact cause to be published certain relevant information which was prejudicial and that the petitioner [reporter] is entitled to know the source of such information so that he might use it in proving that his conviction resulted from a denial of his rights.

170 N.W.2d at 103.

The reporter's attorney should seek a reversal because the appellate court could order such a contempt citation dissolved. See Jeffries v. State, 724 So. 2d 897, 899 (Miss. 1998) (where newspaper reporter was convicted in state court of criminal contempt for publishing article about juvenile record in violation of trial court's order, the court held that reporter's conduct in publishing newspaper article could only form basis for constructive contempt charge, and failure to afford reporter procedural safeguards required for constructive contempt required reversal).

The general procedure is to seek relief through a writ, because once the testimony is given pursuant to a subpoena, any attempt to remedy the matter on appeal will be too late and the damage will have been done.  In addition, often the subpoena targets a reporter who is not a party to the underlying action, and therefore the reporter has no standing to file any appeal pending special leave of the court (see section on timing of “Interlocutory Appeals” above).

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.

In an original mandamus action (the method of review most likely available to challenge the failure to quash a subpoena or issue a protective order), the Supreme Court provides relief in the form of a mandatory writ of mandamus, which directs the lower court to act in accordance with its terms. In the usual appeal from a final order, the appellate court generally remands the matter for action consistent with the appellate opinion.

A reporter's attorney should file a petition for a writ of mandamus, or in the alternative, a writ of prohibition in cases where the reporter is not a party to the action, or in cases where confidential information will be disclosed in compliance with a district court order compelling production or testimony. Toll v. Wilson, 135 Nev. 430, 436, 453 P.3d 1215, 1219 (2019) (“A writ of prohibition is appropriate when the relief is to ‘arrest the proceedings’ and prohibit some exercise of judicial function. NRS 34.320. The judicial function in this case is to compel Toll to reveal his sources, which Toll seeks to prohibit.”). A motion for stay pending appeal, or stay pending petition for extraordinary relief, should be made in the district court, and if denied, should be made in the Nevada Supreme Court. The Nevada Supreme Court may dissolve a contempt citation, order the issuance of a writ, or provide any other relief which it deems appropriate under the circumstances.

There is no statutory or case law addressing the specific relief available to a media party seeking relief from a court order to disclose. Nonetheless, there can be little doubt that it is within the power of the Supreme Court to order a contempt citation dissolved, as it is likewise within the Court's power to order the trial judge to reconsider the issue below in light of the appellate court decision.

Depending upon the issue before the appellate court, the appellate court may affirm or reverse the lower court’s decision on the motion to quash or remand the matter for further proceedings. Because of the emergent nature of most applications related to the privilege, the court will usually issue a final determination rather than remand.

Journalists should not hesitate to ask the appellate court to dissolve a contempt citation or to direct that a subpoena be quashed – recognizing, of course, that the appellate court, in deference to the lower court, may prefer to remand the matter so that the lower court has an opportunity to do the right thing on its own.

The reporter generally should seek a reversal of the order compelling disclosure. In the unlikely event that a finding of contempt has been entered or a fine levied, the reporter should seek a reversal of the order imposing these sanctions. The appellate court may affirm, reverse or vacate an order, and may also remand the matter to the trial court for reconsideration, though this latter option is less frequently exercised.

An appellate court can either reverse, vacate, or remand for further proceedings a finding of contempt or denial of a motion to quash. The precise relief that a reporter should seek depends on the facts of each case, but, in general, a reporter will seek to have the appellate court reverse and vacate a finding of contempt or denial of a motion to quash to avoid having to relitigate the same issue before the same trial judge.

A defendant reporter can seek any relief deemed appropriate. Typically, a reporter will seek an order reversing the trial court's order requiring compliance with the subpoena. The Supreme Court can issue such an order or send the case back to the trial court to reconsider the issue in light of the appellate decision.

In granting extraordinary relief, the Supreme Court can direct any action it deems appropriate.  In one case of which we are aware, the district court denied the motion to quash filed on behalf of a television station reporter and directed the reporter to disclose the content of her unpublished communications with sources.  The Supreme Court assumed jurisdiction and granted an extraordinary writ “prohibiting the respondent judge, or any other judge of the respondent district court, from enforcing a subpoena directed to the petitioner [the reporter].”  The court cited the journalist’s privilege statute, Okla. Stat. tit. 12, § 2506(B), as authority.  Slip op., Tate v. Boyd, No. 94405 (Okla. Sup. Ct. April 24, 2000).

No statutory or case law addressing this issue.

An appellate court can reverse an order granting a motion to compel or denying a motion to quash and quash the subpoena. Where the trial court imposed a contempt sanction, the appellate court can reverse the finding of contempt and imposition of the sanction or can remand to the trial court for consideration of the proper factors for contempt. See Commonwealth v. Bowden, 838 A.2d 740, 765 (Pa. 2003).

If a witness is held in contempt and incarcerated, whether for civil or criminal contempt, the witness’s counsel should consider filing a writ of habeas corpus seeking release on the basis that the witness has been jailed in violation of the reporter’s constitutional rights.

The relief requested would generally be dependant upon what was being appealed. However, the Rhode Island Supreme Court is likely to order the trial judge to reconsider issues at stake.

Depending upon the nature of the ruling below the appellate court should be asked to vacate the contempt citation or remand the case for consideration of the appropriate elements that must be proved by clear and convincing evidence to overcome the claim of privilege.

The appellate court has full authority to affirm, reverse, or modify an order of the trial court under the shield law.

The appellate court reviewing the petition for mandamus (or habeas corpus) may either grant or deny the request for relief. If the court grants the petition, the appellate court must issue an opinion. See Tex. R. App. P. 52.8. But, if the court denies the relief, the appellate court does not have to issue an opinion explaining why it is denying such relief. Id.

There is no statutory or case law addressing this issue.

The Vermont Supreme Court may affirm, reverse or remand the decision of the lower court.

Generally speaking, an appellate court may either vacate the contempt citation or remand the case to the trial court to reconsider the issue in light of the appellate decision.

Under RAP 12.2, an appellate court "may affirm, reverse, or modify the decision being reviewed and take any other action as the merits of the case and the interest of justice may require."

A reporter's attorney should seek an order from the appellate court ordering the lower court to either grant the reporter's motion to quash and/or prohibiting the lower court from enforcing the subpoena or contempt citation. It is possible that the appellate court will order the trial judge to reconsider the issues at stake in light of the appellate decision, but there is nothing preventing the appellate court from making the decision itself.

There is no authority in Wisconsin that addresses this issue.

The appellate court could order a contempt citation reversed as well as ordering the lower court to either reconsider or reverse its decision denying the motion to quash.