The Tenth Circuit has adopted a four-part balancing test to determine when the First Amendment reporter's privilege is extant or defeated (overcome). To overcome a reporter's assertion of the privilege, a party must make a showing of strong need for the information (a showing that the information sought goes to "the heart of the matter" being litigated) and the unavailability of the information from alternative sources. See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977) (stating that the existence of the privilege "is no longer in doubt"). Application of the privilege varies among the district courts in the Circuit, with very few reported decisions from which to draw broader conclusions or trends.
In the Eleventh Circuit, the test for piercing the privilege requires the party seeking the reporter's confidential source to present: “substantial evidence[:] that the challenged statement was published and is both factually untrue and defamatory;  that reasonable efforts to discover the information from alternative sources have been made and that no other reasonable source is available; and  that knowledge of the identity of the informant is necessary to proper preparation and presentation of the case.” Price v. Time, Inc., 416 F.3d 1327 (2005) (quoting Miller II, 628 F.2d at 932); accord United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986).
Flynn v. Roanoke Companies Group, Inc., Nos. 1:06-cv-1809, 1:07-MD-1804, 2007 WL 4564113 (N.D. Ga. Dec. 21, 2007), recognized a qualified common law reporter's privilege for non-confidential sources in civil cases.
In determining whether to apply a qualified reporter’s privilege to the facts and circumstances of a particular case, the courts balance the First Amendment interests against the asserted needs of the requesting party. The courts recognize the impact that disclosure of confidential information and sources will have on the media’s First Amendment interests and its newsgathering ability and on the free flow of information. However, the First Circuit courts do not always protect such sources or information from disclosure. As to non-confidential information and sources, the courts have viewed the First Amendment interests as present but more elusive. The First Circuit has noted, “a lurking and subtle threat to journalists and their employers if disclosure of outtakes, notes, and other unused information, even if nonconfidential, becomes routine and casually, if not cavalierly compelled.” Cusumano v. Microsoft Corp., 162 F.3d 708, 715 (1st Cir. 1998). See also In re Request from United Kingdom, 718 F.3d. 13, 24-25 (1st Cir. 2013); In re Doulours Price, 685 F.3d 1, 21 (1st Cir. 2012).
Courts in the Third Circuit historically have afforded broad protection to the identity of reporters' sources and to unpublished fruits of newsgathering. See generally Smith v. Borough of Dunmore, 516 F. App’x 194 (3d Cir. 2013); United States v. Cuthbertson, 651 F.2d 189 (3d Cir. 1981) ("Cuthbertson II"); Riley, 612 F.2d 708; Damiano v. Sony Music Entm't, Inc., 168 F.R.D. 485 (D.N.J. 1996). So far as reported opinions reveal, the Third Circuit has never required a journalist to disclose the identity of a confidential source or produce outtakes or similar material that might reveal the identity of such a source. Where a source's identity already has been disclosed through other means, however, courts in the Third Circuit tend to be more skeptical of claims of privilege. See, e.g., In Re Grand Jury Empaneled Feb. 5, 1999, 99 F. Supp. 2d 496, 499-500 (D.N.J. 2000) (requiring disclosure in grand jury proceeding involving published information from "a self-avowed source whose identity is publicly known").
Even in those cases in which courts within the Third Circuit have ruled that the party seeking disclosure has or may be able to overcome the privilege, the courts are usually careful to narrowly circumscribe the required disclosure. In United States v. Cuthbertson, 630 F.2d 139 (3d Cir. 1980) ("Cuthbertson I"), for example, the court initially required CBS (as a third party to a criminal prosecution) to disclose to the trial court for in camera review only those verbatim or near-verbatim statements in its possession made by persons on the government's witness list so that the court could determine, as each witness testified, whether the defendant was entitled to obtain and use such statements for purposes of impeachment. On remand after its in camera review, the trial court determined that the statements constituted exculpatory evidence to which the defendant was entitled regardless of what testimony the witnesses gave. On further appeal, the Third Circuit reversed in part, finding that the subpoena was overbroad and should have been quashed. Cuthbertson II, 651 F.2d at 194-96. In another case, where the defendant overcame the qualified privilege, the district court required the reporter to answer direct questions about whether the plaintiffs made statements quoted in an article but modified the breadth of cross examination and redirect questions because they were overbroad and failed "to meet the strictures of the reporter's privilege." In re Subpoena of Maykuth, No. 05-0228, 34 Media L. Rep. (BNA) 1476, 2006 WL 724241, at *3 (E.D. Pa. Mar. 17, 2006).
Similarly, in Siroky v. Allegheny County, the trial court held that the plaintiff had overcome the privilege as to the subpoenaed testimony of a third-party reporter as to the accuracy of certain quoted statements, but denied the subpoena to the extent it sought notes and work product, without prejudice to renewal of that portion of the subpoena if the reporter was unable to recall whether the quotations were accurate without referring to her notes. No. 15-cv-1170, 2018 U.S. Dist. LEXIS 49114, at *21-22 (W.D. Pa. Mar. 26 2018).
This narrowing has been applied even where the disclosure sought is from the source and not from the publisher. In In re: Molycorp, Inc., No. 15-11357 (CSS) (Bankr. D. Del.), Bloomberg L.P. published three articles regarding the bidding process and mediation in a bankruptcy action, all of which contained information that was confidential pursuant to a protective order. In response, the court issued an order requiring a group of party representatives and outside counsel, totaling more than 120 individuals, to self-report by sworn declaration any contact with any Bloomberg reporter regarding the debtor within a 60 day period, regardless of its relation to the at-issue articles or its non-public status. Order, ECF No. 1078. Bloomberg challenged the order’s broad language, arguing that it was not narrowly tailored and thus violated the privilege. Memorandum in Support, ECF No. 1105. In considering the motion, the court implemented “a balancing test,” weighing the court’s “serious and important . . . interest in the protection of the mediation process, the integrity of . . . bankruptcy, and the enforcement of its orders” against “the interest of the press under the First Amendment to do the press’ job of reporting the news . . . and the protections of individuals . . . to speak on an anonymous basis,” and concluded that the order was indeed overly broad and needed to be narrowed. Transcript of January 22, 2016 Hearing at 39:7-9, ECF No. 1172. Ultimately, the court ruled that the information sought be limited to disclosures to the specific authors of the at-issue articles, but the court’s interest in ensuring enforcement of its orders justified compelling disclosure of communications beyond just what appeared in the articles. Transcript of January 29, 2016 Hearing at 18:20-19:23, ECF No. 1209; see also Amended Order, ECF No. 1227 (executed amended order agreed upon by all parties reflecting court’s narrowing of original order and declaration language).
Compared to that of the other circuits’ privilege laws, the scope of protection provided by the reporter’s privilege in the Fourth Circuit falls in the middle of the spectrum. Unlike several other circuits, the Fourth Circuit has not stated explicitly that nonconfidential information from nonconfidential sources is protected by the same privilege as confidential information. Cf. Gonzales v. Nat’l Broad. Co., 194 F.3d 29 (2d Cir. 1999); Shoen v. Shoen, 5 F.3d 1289, 1294 (9th Cir. 1993); United States v. LaRouche Campaign, 841 F.2d 1176, 1182 (1st Cir. 1988); United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980). However, neither has the Fourth Circuit explicitly rejected a qualified privilege for nonconfidential information in a civil context, as the Fifth Circuit did in United States v. Smith, 135 F.3d 963 (5th Cir. 1998) for criminal proceedings. Indeed, lower courts are applying Fourth Circuit precedent to find that a qualified privilege exists in civil cases for nonconfidential information. See, e.g., Federico v. Lincoln Military Housing, LLC, 42 Media L. Rep. 2472, at *3-4 (E.D. Va. Aug. 13, 2014).
The Fourth Circuit, in United States v. Sterling, 724 F.3d 482, 492 (4th Cir. 2013), draws a clear line between the applicability of the reporter’s privilege in civil and criminal contexts, declining to apply the privilege in a criminal proceeding, absent a showing of bad faith or other such improper motive. However, in other contexts the result has been a mixed bag of decisions. In Church of Scientology Int’l v. Daniels, the Fourth Circuit applied the LaRouche v. Nat’l Broad. Co. balancing test in spite of the nonconfidential nature of the information sought by the libel plaintiff church from USA Today, a third party. Church of Scientology, 992 F.2d 1329, 1335, 21 Media L. Rep. 1426 (4th Cir. 1993), cert. denied 510 U.S. 869 (1993); LaRouche, 780 F.2d 1134, 1139, 12 Media L. Rep. 1585 (4th Cir. 1986), cert. denied, 479 U.S. 818 (1986). Still, district courts since Church of Scientology have varied in their application of the LaRouche test to nonconfidential information. See United States v. King, 194 F.R.D. 569 (E.D. Va. 2000) (holding there is no privilege without a showing of confidentiality or harassment by the seeking party); Penland v. Long, 922 F. Supp. 1080, 24 Media L. Rep. 1410 (W.D.N.C. 1995) (holding a qualified privilege exists for nonconfidential information).
In criminal cases involving non-confidential sources and materials, the Fifth Circuit has taken a strict view of the scope of the privilege established in Branzburg v. Hayes, 408 U.S. 665 (1972), refusing to extend a qualified privilege to reporters except where the right to subpoena is not used in good faith by the government, but instead to harass the reporter. See United States v. Smith, 135 F.3d 963, 969-71 (5th Cir. 1998). The privilege exists in civil cases to protect the reporter from having to reveal the identity of confidential sources; the court follows a balancing test to weigh the interests protected by the privilege against the interest implicated when a party seeks the information. See Miller v. Transamerican Press, Inc., 621 F.2d 721, 726, as modified, 628 F.2d 932 (5th Cir. 1980). Fifth Circuit opinions regarding the reporter's privilege cite to other circuits; the Court has recognized in criminal cases that other circuits grant a broader privilege, but has noted some similarities to other circuits in the civil context. Smith, 135 F.3d at 969 & 972 n.4; see also Miller, 621 F.2d at 726 (considering civil libel cases); In re Selcraig, 705 F.2d 789, 799 n.14 (5th Cir. 1983) (considering civil cases generally).
While the 6th Circuit definitely recognizes some sort of privilege for reporters faced with subpoenas from litigants, the scope and contours of that privilege are as yet not entirely defined. For instance, whereas the privilege is relatively strong in the civil context, its application in criminal cases is less certain, due to dictum in a case decided in 1987 stating that no such protection exists, under the First Amendment, for grand jury subpoenas. It is also unclear whether the privilege protects nonconfidential information and/or information beyond the mere identity of confidential sources.
Despite some recent cases quashing subpoenas to the press under a traditional burden of production analysis, McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), remains the law of the circuit, and there is no federal common law reporter's privilege, at least when the source is not confidential.
As Magistrate Judge Finnegan stated in Taylor v. City of Chicago, No. 14-cv-737, 2015 U.S. Dist. LEXIS 146954, at *5-7 (N.D. Ill. Oct. 29, 2015), despite the existence of the Illinois Reporter’s Privilege Statute, “the court declines” to recognize a federal reporter’s privilege. She went on to deny a motion to quash using a burden analysis under Rule 45.
In McKevitt, a terrorism defendant in Ireland sought an order under 28 U.S.C. § 1782 compelling production of tape-recorded interviews for cross-examination of the chief prosecution witness. 339 F.3d at 531. The witness's identity was known and he did not object to production of the tapes, in the possession of journalists preparing a biography of the witness. Id. at 532. The court reviewed Branzburg and its progeny and rejected a special reporter's privilege. "It seems to us that rather than speaking of privilege, courts should simply make sure that a subpoena duces tecum directed to the media, like any other subpoena duces tecum, is reasonable in the circumstances. We do not see why there need be special criteria merely because the possessor of the documents or other evidence sought is a journalist." Id. at 533. The court stated that when the source is not confidential, the First Amendment does not apply. Id. The court suggested that cases holding that the reporter's privilege applies to cases involving non-confidential sources "may be skating on thin ice." Id. at 532. And the court held that state-law privileges are not legally applicable in federal-question cases. Id.
The Seventh Circuit stated explicitly what it stated in so many words in McKevitt: "There isn't even a reporter's privilege in federal cases." United States Dep't of Educ. v. Nat'l Collegiate Athletic Ass'n, 481 F.3d 936, 938 (7th Cir. 2007). The court acknowledged that the news media's ability to conduct investigations would be enhanced if they were permitted to conceal the identity of their sources from the government. "But they are not." Id. at 938. See also Beverly v. Watson, No. 14-cv-4970, 2016 U.S. Dist. LEXIS 87725, *18 (N.D. Ill. July 7, 2016) (Finnegan, J., Magistrate) (cases outside the Seventh Circuit may not be relied on; standard is “relative hardship”, or whether burden of production would outweigh benefit); Wilson v. O'Brien, 2009 U.S. Dist. LEXIS 22967, *19 (N.D. Ill. March 20, 2009) (no federal reporter’s privilege); Mosely v. City of Chicago, 252 F.R.D. 421, 427 (N.D. Ill. 2008) (in Seventh Circuit, subpoenas directed to journalists and media, like those to any non-party, need only be "reasonable in the circumstances").
To the extent that a privilege exists after McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), it must be considered qualified and courts follow the balancing test set forth in McKevitt.
However, the lower courts have continued to consider the interests of the media in deciding whether to quash subpoenas or compel disclosure. See, e.g., Hobley v. Burge, 223 F.R.D. 499 (N.D. Ill. 2004). "Given the important role that newsgathering plays in a free society, courts must be vigilant against attempts by civil litigants to turn non-party journalists or newspapers into their private discovery agents." Id. at 505.
Confidential sources have enjoyed some protection, under a traditional burden of production analysis. See Davis v. City of Springfield, No. 04-3168, at *10 (C.D. Ill. April 1, 2009).
When diversity of citizenship is the basis for federal jurisdiction, courts undergo a standard Erie analysis and determine whether the application of state law would provide the "rule of decision." Desai v. Hersh, 954 F.2d 1408, 1411 (7th Cir. 1992). See also Solaia Technology, LLC v. Rockwell Automation, Inc., No. 03 C 6904, 2003 WL 22597611, at *3 (N.D. Ill. Nov. 10, 2003).
The Eighth Circuit has not explicitly recognized a reporter's privilege. Several district courts within the Eighth Circuit have examined the issue. Where applicable, these district court decisions are discussed and/or quoted below for their persuasive authority. They are controlling law only in the jurisdiction in which they were decided, however.
The Ninth Circuit offers relatively broad protection to journalists under the reporter’s privilege, extending the qualified privilege to non-confidential information and investigative book authors. See Shoen I, 5 F.3d at 1290, 1294-96 (reversing and remanding an order holding an investigative author in contempt for refusing to disclose non-confidential information told to him for use in his book). Further, the reporter’s privilege in the Ninth Circuit yields to other interests only in the most exceptional cases. See Shoen II, 48 F.3d at 416 (reversing an order holding an investigative book author in contempt for refusing to turn over tapes and notes of conversations with a man accused by his sons of defamation); In re Stratosphere Corp. Sec. Litig., 183 F.R.D. 684, 686 (D. Nev. 1999) (denying plaintiffs’ motion to compel testimony of a non-party journalist because plaintiffs had not exhausted all other reasonable sources for the information, had not deposed all of the defendants about the statements in question, and had not asked any defendant specifically about the article in question).
The protection offered to journalists in the Ninth Circuit, however, is not as broad as some of the protections offered under state shield laws within the Ninth Circuit. See Crowe v. Cty. of San Diego, 242 F. Supp. 2d 740, 750 (S.D. Cal. 2003) (holding that CBS’s journalist’s privilege must yield to a deputy district attorney’s need for her taped interview to defend herself in a defamation action); Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, 2018 WL 2441518, at *15 (N.D. Cal. May 31, 2018) (concluding that even if the defendants could assert a journalist’s privilege, communications concerning a study on the plaintiffs’ company to prove the elements of the plaintiffs’ RICO claim overcame the privilege); Planet Aid, Inc. v. Reveal, Ctr. for Investigative Reporting, 2019 WL 935131, at *2 (N.D. Cal. Feb. 26, 2019) (requiring a journalist to turn over conversations about a publication accusing the plaintiffs of illegal conduct because they were noncumulative, unavailable through alternative sources, and relevant to the plaintiffs’ defamation claims).
The scope of the reporter's privilege in Alabama has been interpreted broadly. For example, in Brothers v. Brothers, No.: DR-86-200107, 19 Med. L. Rptr. 1031 (DR-86-200107, Marshall County, Ala., Cir. Ct., Jan. 9, 1989) the court applied Alabama's shield statute, which protects "sources," to quash a subpoena that sought all of a reporter's documents, notes and materials relating to an interview she had conducted that had been broadcast on television. In Ex parte Sparrow, 14 F.R.D. 351 (N.D. Ala. 1953), the court applied the shield statute to confidential sources of information, but did not limit the application of the statute to confidential sources, stating that the statute "clearly privileges" a reporter’s "sources of information." Id. at 353. Other courts have, however, indicated that "sources" under the shield statute may mean only confidential sources of in-formation. Pinkard v. Johnson, 118 F.R.D. 517 (M.D. Ala. 1987)(stating that although court was not bound to follow Alabama law, the court would not ignore Alabama's policy of giving protection to confidential "sources of information" obtained by reporters); Norandal USA, Inc. v. Local Union No. 7468, No.: CV-86-136, 13 Med. L. Rptr. 2167 (Jackson County, Ala. Cir. Ct., Sept. 11, 1986)(stating that Alabama's shield statute governs "confidential sources"). In those cases, it is unclear whether the court was using "confidential" to mean that the source was confidential because the reporter had not disclosed the source, thereby waiving the privilege, or whether the source was confidential because the source provided information to the reporter with the understanding that his or her identity would not be disclosed by the reporter. Arguably, in Pinkard, the court used "confidential" to mean the former - that sources are confidential and privileged only if the reporter has not previously disclosed the identity of the source. Nevertheless, the shield statute, by its terms, does not require that a source be confidential in order for the privilege provided by the statute to be available. Ala. Code § 12-21-142.
With respect to the First Amendment privilege, the privilege applies to materials other than "confidential sources." Norandal USA, Inc. v. Local Union No. 7468, No.: CV-86-136, 13 Med. L. Rptr. 2167 (Jackson County, Ala. Cir. Ct., Sept. 11, 1986).
Since the appellate courts have yet to squarely address the existence or scope of a reporter's privilege, it is not meaningful to make generalizations about how "strong" or "weak" it is. On the one hand, it is not clearly established or accepted; on the other hand, nearly every trial court judge presented with the issue has recognized and applied the privilege, and reporters have not been compelled to testify or produce notes.
By its terms, the Arizona Shield Law, codified in A.R.S. § 12-2237, applies to "the source of information procured or obtained . . . for publication in a newspaper or for broadcasting over a radio or television station . . . ." It applies broadly to civil, criminal and grand jury matters, legislative proceedings, "or elsewhere." A.R.S. § 12-2237. Moreover, the separate Arizona Media Subpoena Law confers a number of procedural protections on the press regarding subpoenas for confidential and non-confidential information. Finally, at least with respect to the Media Subpoena Law, the Arizona Court of Appeals has recognized a qualified First Amendment privilege for reporters in Arizona. Further, the Ninth Circuit has endorsed a strong First Amendment privilege for reporters in this Circuit.
The Arkansas shield law appears to be quite broad, based both on the language of the statute and the only Arkansas case to address the statute. The statute protects reporters from being required to divulge the names of sources in criminal proceedings, under the plain language of the statute, and in civil matters, under an interpretation by the Arkansas Supreme Court.
California’s shield law generally is very protective, although there are limits to the protection it provides against criminal defendants and in cases where the reporter is a party to the litigation. In addition, because the language of the privilege identifies certain types of news organizations, it is unclear whether it protects all varieties of journalists, such as book authors.
The Colorado Press Shield Law provides broad protection for newgatherers. Although not absolute, the language in the statute broadly defines the kinds of information protected ("any knowledge, observations, notes," etc.) and the individuals and organizations who can assert the privilege ("any member of the mass media"). This broad language has permitted varied groups from the helicopter pilot of a local television station to the publisher of an Anti-Defamation League newsletter to successfully assert the privilege.
The Shield Law protects both confidential and non-confidential sources. It applies to "any information obtained or received, whether or not in confidence, by the news media in its capacity in gathering, receiving or processing information for potential communication to the public, or the identity of the source of any such information, or any information that would tend to identify the source of any such information." Conn. Gen. Stat. § 52-146t(b).
The privilege is strong, and cannot be overcome unless the party seeking disclosure shows by "clear and convincing evidence" that all of the following four conditions are met: (1) that there are reasonable grounds to sustain the civil or criminal action in which the disclosure is sought, (2) that the information or the identity of the source is "critical or necessary" to critical or necessary to the investigation or prosecution of a crime or to a defense thereto, or to the maintenance of a party's claim, defense or proof of an issue material thereto, (3) that the information or source identity is "not obtainable from any alternative source," and (4) that there is "an overriding public interest in the disclosure." Conn. Gen. Stat. § 52-146t(d). Additionally, the statute requires a party seeking disclosure to pursue "[p]rior negotiations with the news media" before issuing a subpoena for any information protected by the statute.
Prior to the enactment of the statute, courts had expressly applied the privilege in cases involving confidential sources. Fagin, supra, 33 Conn. Supp. at 207. In Gonzales, 194 F.3d at 21-22, the Second Circuit affirmed that the privilege also applies to non-confidential information, but held that the showing required to overcome the privilege is less demanding than for confidential sources. See also von Bulow v. von Bulow, 811 F.2d 136 (2d Cir. 1987). Seahawk, 166 F.R.D. at 270.
A Superior Court noted that the Shield Law “does not serve as a talisman to insulate [a reporter] against arrest for her own alleged violations of the law. A review of the relevant legislative history yields nothing to suggest that the statute provides more than a qualified testimonial privilege.” State v. Buhl, No. S20NCR10127478S, 2012 WL 4902683 (Conn. Super. Ct. Sept. 25, 2012) (emphasis added) (reversed on other grounds).
D.C. federal courts have extended the qualified reporter’s privilege to both confidential information and unpublished, nonconfidential information. Peck v. City of Boston (In re Slack), 768 F. Supp. 2d 189, 194 (D.D.C. 2011) (explaining that not extending the qualified privilege to both confidential and nonconfidential information “would risk the symbolic harm of making journalists appear to be an investigative arm of the judicial system, the government or private parties”) (citing Gonzales v. NBC, Inc., 194 F.3d 29, 35 (2d Cir. 1999)). In either situation, the litigant seeking disclosure can overcome the privilege only by showing that: (1) they have exhausted all reasonable alternative means of identifying the source; and (2) the information sought goes to the heart of their case. E.g., Tripp v. Dep’t of Def., 284 F. Supp. 2d 50 (D.D.C. 2003); Maughan v. NL Indus., 524 F. Supp. 93, 95 (D.D.C. 1981) (discovery of material developed in preparation of news report is as “invidious” as compelled disclosure of sources).
District of Columbia
The District’s shield law provides broad protection for news, information, and sources. Under the statute, testimony about sources (whether or not confidential) can never be compelled when the source was contacted by the news media during an official “newsgathering activity.” D.C. Code § 16-4702(1). However, a court may compel disclosure of news or information other than sources if the person seeking the information can show, by clear and convincing evidence, that: (1) the news or information is relevant to a significant legal issue before a judicial, legislative, administrative, or other body that has the power to issue a subpoena; (2) the news or information could not, with due diligence, be obtained by any alternative means; and (3) an overriding public interest in disclosure exists. D.C. Code §§ 16-4702, 4703. The District’s shield law provides that this privilege is not waived when the journalist publishes or disseminates the source or portion of the news or information while pursuing a professional activity. D.C. Code § 16-4704.
A D.C. court also has held that the identities of anonymous internet speakers are subject to a qualified privilege under the First Amendment. Solers, Inc. v. Doe, 35 Med. L. Rptr. 1297 (D.C. Super. Ct. 2006), vacated and remanded, 977 A.2d 941 (D.C. 2009). However, this privilege is not absolute, and the D.C. Court of Appeals has instructed that when presented with a motion to quash a subpoena seeking the identity of an anonymous defamation defendant, a court should: “(1) ensure that the plaintiff has adequately pleaded the elements of the defamation claim, (2) require reasonable efforts to notify the anonymous defendant that the complaint has been filed and the subpoena has been served, (3) delay further action for a reasonable time to allow the defendant an opportunity to file a motion to quash, (4) require the plaintiff to proffer evidence creating a genuine issue of material fact on each element of the claim that is within its control, and (5) determine that the information sought is important to enable the plaintiff to proceed with his lawsuit.” Solers, 977 A.2d at 954. Addressing the fourth element of that test, the Court of Appeals subsequently clarified that in the absence of evidence of “damages suffered as a direct consequence of the alleged defamation,” a plaintiff cannot “overcome a speaker’s First Amendment right to anonymity with little more than an allegation of defamation and its own decision to expend money in response.” Software & Info. Industry Ass’n v. Solers, Inc., 40 Med. L. Rptr. 1194 (D.C. 2012).
The reporter's privilege in Florida provides fairly broad protection to professional journalists wishing to avoid revealing their sources and information. Because the statute requires an evidentiary hearing at which the subpoenaing party must make a clear and specific showing that all three prongs of the test for overcoming the privilege are met, the journalist bears very little burden in establishing the entitlement to the privilege. So long as the journalist falls within the statutory definition of "professional journalist" contained in the statute and the information sought was obtained while actively gathering news, the privilege will attach, and the burden shifts to the party seeking disclosure to make the requisite showing.
Since its enactment, Georgia's statutory privilege has been enforced by Georgia state and federal courts in vigorous fashion. It is now well settled that the privilege applies to confidential and non-confidential information and to both testimony and records obtained in the process of gathering or delivering the news. See generally In re Paul, 270 Ga. 680, 684 (1999) (rejecting effort to compel testimony from reporter who did a jailhouse interview of accused murderer: "[The shield law] protects against the 'disclosure of any information document or item obtained or prepared in the gathering or dissemination of the news.' Thus, the statutory language does not distinguish between the source's identity and information received from the source or between non-confidential and confidential information.").
The reporter’s privilege has received uneven and often hostile treatment from the Idaho appellate courts. A precise identification of the scope of protection is, therefore, somewhat of a challenge.
In the Wright case, the Branzburg balancing test was adopted to apply to a reporter who had been subpoenaed to testify as a third-party witness in a criminal case as to the identity of confidential sources used in preparing a news story. The majority decision in Wright also discussed the various circumstances in which a reporter might be called upon to provide testimony, without expressly stating that any one circumstance absolutely allowed compelled testimony, or absolutely called for application of the privilege to protect against compelled testimony. Rather, the Wright court focused upon the individual, case-specific, application of the Branzburg test. In doing so, however, the Wright court said that the test “may be applied in both a criminal and a civil context,” thereby leaving room to argue that the reporter's privilege recognized in the Wright case is not limited to the criminal case, third-party, types of proceedings involved in that case. Wright, 108 Idaho at 422-423, 700 P.2d at 44-45.
However, consistent with the prior shifting sands of the Idaho Supreme Court’s handling of the privilege, the only reported decision dealing with the privilege since Wright appears to be intended to partially shut the door the Wright court had tried to open. In State v. Salsbury, 129 Idaho 307, 924 P.2d 208 (1996), the Idaho Supreme Court refused to allow the reporter's privilege sought by a television station to protect against the compelled production of aired and unaired footage of the scene of a fatal automobile accident. The videotape was sought by the prosecutor in a criminal case brought against a reporter from a local newspaper, who had been arrested and charged with resisting and obstructing a police officer when the reporter refused to leave the scene of the accident after being ordered to do so by police on the scene.
In Salsbury, an entirely different membership of the court from that which had considered the Wright case, again took up the application of the reporter's privilege. The court held that the reporter's privilege did not apply to the case because the videotape sought by the prosecutor did not involve a “confidential source nor any form of confidential information.” Salsbury, 129 Idaho at 312-313, 924 P.2d at 213-214. The Salsbury court nonetheless went through the exercise of evaluating the facts under the Branzburg test, and concluded that the trial judge had correctly concluded that compelled disclosure of the videotape would have little, if any, “chilling” effect on the press and that the interest of the press must give way to the prosecutor's right to disclosure of the information. Id.
The dissent in Salsbury contended that the Branzburg test should be applied in the case and had not been satisfied, emphasizing that the prosecutor had admitted that he had not attempted to contact any of the numerous other witnesses at the scene to determine if they could provide an alternative source for the information the prosecutor hoped to obtain from the videotape. Salsbury, 129 Idaho at 313, 924 P.2d at 214.
Since the Salsbury decision was rendered, all of the justices have gone off of the court. Therefore, it remains a guessing game to anticipate the next ruling of the Idaho Supreme Court on the reporter’s privilege. Because Idaho does not have a shield law, each case that comes to the Idaho appeal courts (which include the Idaho Supreme Court and an intermediate Court of Appeals) takes on heightened importance.
Under the Privilege, reporters are not required to disclose the source of any information unless a court finds that “all other available sources of information have been exhausted” and that “disclosure of the information sought is essential to the protection of the public interest involved.” 735 ILCS 5/8-907. The burden of proving these two elements is on the person or entity seeking access to the information.
Indiana's shield law provides absolute protection of the identity of a newsgatherer’s confidential source. However, the shield law does not explicitly protect the information obtained from confidential or nonconfidential sources. The shield law is the only source of privilege to have been applied in Indiana criminal cases and may be the only source in civil cases as well. Thus, under current case law, those materials that are not covered by the shield law are subject to disclosure if subpoenaed.
In sum, the reporter’s privilege in Indiana protects the identities of sources but does not protect underlying information. Ind. Code § 34-46-4-2.
The reporter's privilege provides a presumptive privilege from discovery if the party resisting production "falls within the class of persons qualifying for the privilege" and the information was obtained in the "news gathering process." Bell v. City of Des Moines, 412 N.W.2d 585, 587, 14 Med. L. Rptr. 1729 (Iowa 1987). The privilege "protects confidential sources, unpublished information, and reporter's notes." Waterloo/Cedar Falls Courier v. Hawkeye Community College, 646 N.W.2d 97, 102 (Iowa 2002). The phrases "class of persons" and "news gathering process" are not well defined by statute or case law. In Stanfield and Waterloo/Cedar Falls Courier, the journalists were deemed to be engaging in newsgathering and they qualified for the privilege. See Waterloo/Cedar Falls Courier, 646 N.W.2d at 101.
If the party resisting production "falls within the class of persons qualifying for the privilege" and the information was obtained in the "news gathering process," then the information sought is presumptively privileged and protected from discovery. Waterloo/Cedar Falls Courier, 646 N.W.2d at 101. However, the reporter's privilege is a qualified privilege, which may be subordinated if the requesting party has a substantial need for the information and only after the requesting party has exhausted other less intrusive means of attaining the information. Id.; Winegard, 258 N.W.2d at 850 (stating that privilege is qualified and not absolute).
K.S.A. 60-481 provides that:
Except as provided in K.S.A. 60-482, and amendments thereto, a journalist cannot be adjudged in contempt by a judicial, legislative, administrative body or any other body having the power to issue subpoenas, for refusing to disclose, in any state or local proceeding, any information or the source of any such information procured while acting as a journalist.
K.S.A. 60-482 provides that:
- (a) A journalist may not be compelled to disclose any previously undisclosed information or the source of any such information procured while acting as a journalist until the party seeking to compel the disclosure establishes by a preponderance of the evidence in district court that the disclosure sought:
(1) Is material and relevant to the proceeding for which the disclosure is sought;
(2) could not, after a showing of reasonable effort, be obtained by readily available alternative means; and
(3) is of a compelling interest.
(b) For purposes of this section, a “compelling interest” is evidence likely to be admissible and has probative value that is likely to outweigh any harm done to the free dissemination of information to the public through the activities of journalists, which includes, but is not limited to:
(1) The prevention of a certain miscarriage of justice; or
(2) an imminent act that would result in death or great bodily harm.
Interests that are not compelling include, but are not limited to, those of parties whose litigation lacks sufficient grounds, is abusive or is brought in bad faith.
In addition to the statutory protection discussed above, the activities of journalist’s are protected by the First Amendment-based qualified privilege identified by the Kansas Supreme Court in In re Pennington, 224 Kan. 573, 581 P.2d 812 (1978), cert. denied, 440 U.S. 929 (1979). Although a judge of the United States District Court for the District of Kansas once likened the privilege described in Pennington to the qualified privilege recognized by the Tenth Circuit in the Silkwood case discussed below, see Weathers v. American Family Mutual Insurance Co., No. 87-2557-0, 1989 U.S. Dist. LEXIS 18300, at *2 (D. Kan. September 26, 1989), it is difficult for the author to see the likeness. A comprehensive discussion of the reasons why Pennington has proven difficult to interpret would exceed the scope of this outline. It is enough to say that the Kansas Supreme Court clearly intended to identify a qualified First Amendment-based privilege applicable to journalists that affords at least some protection with respect to both sources and other information obtained in the course of newsgathering. For an exhaustive examination of the Pennington decision, see, C. Grenz, “Into Battle Without A Shield: How One Reporter’s Use Of An Anonymous Source Led To The Creation Of A Statutory Reporter’s Privilege In Kansas,” 60 U. Kan. L. Rev. 1071 (2012).
Federal Courts: The First Amendment-based qualified privilege applicable in federal question litigation in federal court requires a litigant attempting to overcome the privilege to demonstrate that he or she has independently attempted to obtain the information being sought from a journalist elsewhere and failed, and that the information sought is crucial to the litigation, i.e., that it literally “goes to the heart of the matter.” See, e.g., Grandbouche v. Clancy, 825 F.2d 1463 (10th Cir. 1987); Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977).
The Kentucky reporter’s shield statute, KRS 421.100, provides absolute protection but only with regard to sources’ identities. Branzburg v. Pound, 461 S.W.2d 345 (Ky. 1971), aff'd sub nom. 408 U.S. 665 (1972). The statute generally does not protect reporters from being forced to disclose other types of information, including unpublished information. On the other hand, there is no reported case which strictly interprets the statute or limits its protection.
Louisiana's shield law provides for a broad, yet qualified, privilege for reporters and the news media. The privilege protects not only the name of the confidential source, but any disclosure of information, including the place of employment, which would assist in identifying the source. Burns, 484 So.2d at 659. Furthermore, the reporter's privilege is not limited to sources and informants who give information that is published. The privilege applies to sources of nonpublished information as well. Dumez, 341 So.2d at 1208. In addition, Section 1459 of the Louisiana shield law outlines a qualified protection for unpublished non-confidential news. La. R.S. 45:1459.
Thus, as a matter of state statutory and constitutional law, Louisiana's reporter's privilege is stronger than in many states.
The federal Fifth Circuit has interpreted the federal constitutional reporter's privilege more narrowly. At least in civil cases involving a confidential source, the Fifth Circuit applies a three-part test. See Miller v. Transamerican Press, 621 F.2d 721, 725 (5th Cir. 1980); In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983). The Fifth Circuit has refused, however, to extend the reporter's privilege to non-confidential sources in criminal cases. See U.S. v. Smith, 135 F. 3d 963 (5th Cir. 1998).
The shield law, 16 M.R.S.A. § 61, creates a qualified privilege against compelling a journalist to disclose the identity of a confidential source, any information used to identify a confidential source, or any information obtained from the confidential source by the journalist while acting in a journalistic capacity.
With regard to non-confidential sources, the Maine Supreme Court has ordered the disclosure of non-confidential outtakes sought by a grand jury in a criminal prosecution. See In re Letellier, 578 A.2d 722, 17 Media L. Rep. 2169 (Me. 1990). Applying the First Circuit's “balancing test,” the Maine Supreme Court ordered the disclosure of un-broadcast portions of a videotape, specifically noting the absence of a confidential source and the fact that the information was sought by a grand jury. Id.; see also State v. Hohler, 543 A.2d 364, 15 Media L. Rep. 1611 (1988) (no reporters privilege against testifying in a murder trial about highly relevant, non-confidential, previously published information).
The protection afforded under Maryland's Shield Law is broad. The statute absolutely precludes the compelled disclosure of the source of any news or information, regardless of the media's publication of the source's identity. § 9-112(d)(2). The statute qualifiedly protects against the compelled disclosure of unpublished news or information, and the qualified privilege may only be overcome by clear and convincing evidence that one of the statutory exceptions applies. § 9-112(d)(1).
The protection the Massachusetts's reporter's privilege affords is uncertain. The privilege derives from a judge's obligation to consider "the effect of compelled disclosure on values underlying the First Amendment." Petition for Promulgation of Rules, 479 N.E.2d 154, 158 (1985). A judge has the authority to prevent harassment and needless disclosure of confidential relationships but may choose whether or not to exercise that authority at his or her discretion. Petition for Promulgation of Rules, 479 N.E.2d 154, 158 (1985). This makes it difficult to predict the outcome in a given case because the outcome will depend both on the case's specific facts and the views of the presiding judge. The privilege is qualified and applies to protect a reporter's sources when it is determined that the reporter's interests in confidentiality outweigh countervailing interests in obtaining the evidence sought.
Journalists have a qualified privilege for unpublished materials in Michigan. One appellate case required that the material be confidential as well as unpublished. In re Photo Mktg. Ass’n Int’l, 120 Mich. App. 527, 529–31, 327 N.W.2d 515 (1982). This privilege, created by case law, does not hold as much weight as the privilege applicable in grand jury proceedings and for prosecutor’s investigatory subpoenas, which is created by statute and is nearly absolute. See MCL 767.5a; MCL 767A.6(6).
Mississippi trial courts recognize a qualified privilege for news gatherers against disclosing information when the news gatherer is not a party to the suit. In considering whether the privilege applies, the courts have applied the three-part inquiry forwarded by the Fifth Circuit in Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (5th Cir. 1980) and reiterated by two federal district courts in Mississippi: (1) is the information relevant, (2) can the information be obtained by alternate means, and (3) is there a compelling interest in the information? Brinston v. Dunn, 919 F. Supp. 240, 242 (S.D. Miss. 1996) and McKee v. Starkville, 11 Med. L. Rptr. 2312, No. EC-82-36-NB-D, (N.D. Miss. Jan. 27, 1985). The following orders of the trial courts have applied the three-part test in determining that the party seeking discovery had not met its burden of proof in showing that the qualified privilege had been overcome: Charles R. Pope v. Village Apartments, Hinds County Circuit Court, No.92-72-436CV (Jan. 23,1995); Mary Doe v. Maurin-Ogden Mgmt. Corp., Hinds County Circuit Court, No. 90-64-502 (Feb. 8, 1991); State v. Hand, Tallahatchie County Circuit Court, No. CR89-49-C (T-2) (July 31, 1990); In re Grand Jury Subpoena, Hinds County Circuit Court, No. 38,664 (Oct. 4, 1989); City of Jackson v. Crawford, Hinds County Circuit Court Crim. No. 825 (Mar. 16, 1988).
Given the lack of a shield statute, and the paucity of cases decided by the Court, it is difficult to delineate the scope of protection that is afforded by the New Hampshire Constitution. That said, the Court has spoken expansively about the rights of the press to gather and disseminate the news. See, e.g., Opinion of the Justices¸ 117 N.H. 386, 389 (1977).
New Jersey has one of the strongest newsperson's privilege statutes in the nation. It offers a broad definition of "news" and "news media," even finding an annual rating of the financial condition of insurance companies to be "news" within the privilege. In re Burnett, 269 N.J. Super. 493 (1994); see also In re Avila, 206 N.J. Super. 61 (App. Div. 1985) (upholding the claim of privilege to a free publication); Trump v. O’Brien, 403 N.J. Super. 210 (App. Div. 2008) (opining that authors of books may also be protected); Too Much Media, LLC v. Hale, 206 N.J. 209 (2011) (noting that the protections of the Shield Law are not limited to traditional news outlets like newspapers and magazines but refusing to extend the protections to online message boards, characterizing them as “little more than forums for conversation” and not similar to traditional news sources). The exceptions to the privilege have been narrowly construed. Even where a reporter was present at the scene of physical violence the reporter's testimony will not be compelled if other witnesses are available. State v. Santiago, 250 N.J. Super. 30 (1991).
The principal source of a New Mexico reporter’s privilege – Rule 11-514 – provides reasonably strong protection against judicially compelled disclosure of confidential sources and confidential information. But the protection vanishes whenever a litigant can persuade the court that the source or the information is “crucial” to his case, that he has “reasonably exhausted alternative means of discovering” the information, and that his need for the information “clearly outweighs” the public interest in enforcing the privilege.
New York has "long provided one of the most hospitable climates for the free exchange of ideas … It is consistent with that tradition for New York to provide broad protections, often broader than those provided elsewhere, to those engaged in publishing and particularly to those performing the sensitive role of gathering and disseminating news of public events." In Re Beach v. Shanley, 62 N.Y.2d 241 at 255-256, 476 N.Y.S.2d 765, 773 (1984) (Wachtler, J., concurring).
New York's Shield Law provides an absolute privilege with respect to confidential information, and a qualified privilege for nonconfidential information. The privileges apply equally in both the civil and criminal context, and in cases where the reporter is party to the litigation. However, in criminal cases, where the reporters privilege frequently conflicts with a defendant's Sixth Amendment rights, courts appear more willing to find that the privilege as to non-confidential information has been overcome. Similarly, while the Shield Law protects journalists in defamation suits in which they (or their employers') are defendants, courts will often prevent the reporter from using information withheld on the basis of the privilege in his or her defense.
In general, the shield law in North Carolina is very strong. The statute extends to virtually everyone connected with the publication or distribution of news information, including, but not limited to, reporters, photographers, stringers, and freelance reporters; it extends to all newsgathering activity, so long as the activity is related to the business of publication or distribution of news via print, broadcast, or other electronic means; it protects all newsgathering information, regardless of whether the information is confidential or non-confidential; and it extends to all legal proceedings, including criminal, civil, grand jury and quasi-judicial (i.e., administrative) proceedings. Nonetheless, despite the clarity and strength of the statute, the application of the statute to a specific set of facts is always subject to the vagaries of the judicial process and the temperament of specific judges.
The plain language of the applicable statute appears to offer broad protection under the reporter's privilege. However, dicta in the seminal case on this issue (Grand Forks Herald v. Dist. Court in and for Grand Forks Cnty., 322 N.W.2d 850 (N.D. 1982)) indicates that the privilege is a qualified one. The privilege is limited by whether the court would find that a "miscarriage of justice" would occur if the information was not disclosed. Factors considered in whether nondisclosure would result in a miscarriage of justice include:
(1) whether the information is available from some other source and the party seeking disclosure has exhausted all other resources of information;
(2) whether the information came from a confidential source, although this is not dispositive, it is only a factor to consider;
(3) relevancy of the information sought to the litigation;
(4) whether disclosure of the information would cause a "chilling effect".
The Grand Forks Herald court did not rule on the application of the reporter's privilege in criminal situations, although the court speculated that the nature of the action is something that a lower court should consider when determining whether nondisclosure would result in a miscarriage of justice. In Moore v. State, 2006 ND 8, the North Dakota Supreme Court did consider the privilege in connection with a civil post-conviction petition of a criminal conviction and held that the reporter’s privilege statute served to bar an inmate’s subpoena of testimony from a reporter present at his sentencing.
The statutory protection, while "absolute" in its terms, may potentially be overridden by a criminal defendant's Sixth Amendment rights.
A journalist’s right to protect the confidentiality of his confidential sources is a qualified right. In determining whether a journalist must divulge the name of a confidential source of information in a criminal proceeding, a court must balance the journalist’s First Amendment right against the defendant's Sixth Amendment right to a fair trial on a case-by-case basis. In re McAuley, 63 Ohio App.2d 5, 408 N.E.2d 97 (8th Dist. 1979); State v. Geis, 2 Ohio App.3d 258, 441 N.E.2d 803 (10th Dist. 1981). These cases generally frame the scope of the qualified constitutional protection in terms broader than those provided by the statutory shield law protection. In dicta, the Ohio Supreme Court discussed the qualified constitutional privilege in the context of a murder case and a trial court’s order to television stations to preserve broadcast tapes and outtakes. See State ex rel. National Broadcasting Company, Inc. v. Lake County Court of Common Pleas, 52 Ohio St.3d 104, 110-11, 556 N.E.2d 1120 (1990). The Ohio Supreme Court reasoned that Branzburg stands for the proposition that a court may enforce a subpoena in a criminal case over a reporter’s claim of privilege as long as the subpoena is issued for a legitimate purpose, and not for harassment. Id. at 110. The Court noted that if the subpoena is overbroad, the remedy is a motion to quash. Id. Despite the dicta in NBC, some Ohio courts continue to apply a balancing test. For example, in In re April 7, 1999 Grand Jury Proceedings, 140 Ohio App.3d 755, 760-61, 2000-Ohio-2552, 749 N.E.2d 325 (7th Dist.), the Seventh District Court of Appeals interpreted NBC as stating that “[b]y implication, the subpoena would be overbroad and violative of the statute if it threatens the disclosure of confidential sources.” The Seventh District held that “[a] balancing of these competing interests is necessary as reporters do not possess an absolute First Amendment right or an absolute statutory right to withhold or otherwise conceal the identity of confidential sources of information in light of ongoing criminal proceedings.” Id. at 761-62; see also State v. Anaga, Montgomery C.P. No. 90-CR-2578, 1991 WL 17185,18 Med.L.Rptr. 1527 (Jan. 3, 1991) (applying three-part test); State v. Daniel, 11th Dist. Trumbull No. 89-T-4214, 1990 WL 237188, (Dec. 31, 1990) (same).
Oklahoma has a broad privilege statute that seems to be fairly well understood and enforced without much hesitation by the trial courts. The dearth of appellate authority suggests that the statute has been correctly interpreted and applied by the lower courts on those occasions where judicial action to quash a subpoena has been required.
- Shield Law
The Pennsylvania Shield Law “creates an absolute privilege” that protects information “from disclosure without analysis of plaintiffs’ need for the information.” Davis v. Glanton, 705 A.2d 879, 883 (Pa. Super. 1997). It provides an absolute privilege for “a confidential source’s identity, or any information which could expose the source’s identity.” Castellani v. Scranton Times, L.P., 956 A.2d 937, 954 (Pa. 2008).
In Commonwealth v. Bowden, 838 A.2d 740 (Pa. 2003), the Pennsylvania Supreme Court determined that the Shield Law protects only confidential source information, i.e., only information and documents that “could breach the confidentiality of the identity of a human source and thereby threaten the free flow of information from confidential informants to the media.” Id. at 752. In declining to extend the privilege to non-confidential source information, the court explained:
The obvious purpose of the Shield Law is to maintain a free flow of information to members of the news media. We fail to see how this purpose is promoted by protecting from discovery documentary information that was in the possession of the publisher of the defamatory statement where disclosure of this information would not reveal the identity of a confidential media-informant.
Id. at 750.
That decision reflected a shift in the law. Previously, Pennsylvania state and federal courts had held that the Shield Law applies to all unpublished information, except in defamation cases. In re Taylor, 193 A.2d 181, 185 (Pa. 1963); see, e.g., Sprague v. Walter, 543 A.2d 1078, 1083, 1085 (Pa. 1988); Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 279 (3d Cir. 1980) (“Inasmuch as Taylor protects all nonpublished portions of a source’s statement, we hold that the outtakes of the Mills interview are protected even though the identity of the primary source of information is known.”). In Hatchard v. Westinghouse Broadcasting Co., 532 A.2d 346 (Pa. 1987), the Pennsylvania Supreme Court held that, “to the extent that the language in In re Taylor may be read as interpreting the Shield Law to protect from discovery, in defamation actions, documentary material that could not reasonably lead to the discovery of the identity of a confidential media-informant, that [reads] the Shield Law much too broadly.” Id. at 351. The court reasoned that reputation is protected under the Pennsylvania Constitution, and that its decision permitting disclosure of a media defendant’s resource materials in defamation cases (unless the materials disclosed a confidential source) was intended to balance those rights with the privilege articulated in Taylor. Id. Later, in Bowden, the Pennsylvania Supreme Court adopted an “admittedly narrow reading” of Taylor, reasoning that the decision in Taylor protected non-confidential sources because their disclosure “had the potential to reveal sources of information which the [Shield Law] intended to protect,” i.e., confidential sources. 838 A.2d at 748. The court ruled that the Shield Law did not protect any other information.
Several years later, in Castellani, the Pennsylvania Supreme Court reaffirmed that Pennsylvania’s Shield Law “protects a newspaper’s source of information from compelled disclosure.” 956 A.2d at 939. The court declined to read a “crime-fraud” exception into this statute. Id. Castellani involved a defamation case against two newspapers that had published a story alleging that the plaintiffs provided evasive and non-responsive answers to a grand jury. Id. at 940. The plaintiffs sought to identify the newspapers’ source, arguing that the act of disclosing information regarding the proceedings before the grand jury was a criminal act and the reporter’s communications with her source should not be privileged. The court rejected that argument as well as the plaintiffs’ attempt to analogize the protections afforded under the Shield Law to the attorney-client privilege, which provides a crime-fraud exception. Id. at 945 (citing Nadler v. Warner Co., 321 Pa. 139 (1936)). As the court explained, in the attorney-client context, a crime-fraud exception is justified because the client, as holder and beneficiary of the attorney-client privilege, should not be allowed to benefit from abusing the privilege in furtherance of a crime or fraud. Id. at 951. Conversely, no such similar purpose is served by creating a crime-fraud exception to the Shield Law; while the newspaper is the holder of the privilege, it is the public who is the beneficiary. Id. Furthermore, “the news media [has] a right to report news, regardless of how the information was received.” Id. at 952.
- First Amendment
In following the Third Circuit’s decisions, Pennsylvania trial and appellate courts have espoused a strong interpretation of the First Amendment reporter’s privilege. The privilege cannot be overcome unless a court concludes, in articulated findings, that the party seeking the information has established that (1) the information sought is “necessary” and “crucial” to its case; (2) attempts to obtain the information from other sources have been exhausted; and (3) the only source of the information is the reporter. See Davis v. Glanton, 705 A.2d 879, 885 (Pa. Super. 1997); McMenamin v. Tartaglione, 590 A.2d 802, 811 (Pa. Commw. 1991), aff’d without op., 590 A.2d 753 (Pa. 1991). In one instance, the First Amendment privilege was applied even to published information. See McMenamin, 590 A.2d at 811; see also Siroky v. Allegheny Cty., 2018 WL 1465759, at *3 (W.D. Pa. Mar. 26, 2018) (holding that qualified reporter’s privilege applied to reporter’s testimony, interview notes, and reporting material related to published story).
In 2003, the Pennsylvania Supreme Court “assume[d] without deciding” that Pennsylvania recognizes a First Amendment reporter’s privilege in accordance with Third Circuit precedent. See Commonwealth v. Bowden, 838 A.2d 740, 753 n.10 (Pa. 2003) (explaining that “application of Third Circuit precedent in this matter is consistent with our general practice of deferring to the Third Circuit concerning federal questions”); see also Castellani v. Scranton Times, L.P., 956 A.2d 937, 950 n.11 (Pa. 2008) (Bowden court “acknowledg[ed] the Third Circuit’s recognition of a qualified reporter’s privilege”).
A member of the news media has a privilege against disclosing the source of any confidential information. R.I. Gen. Laws § 9-19.1-2. However, there are some specific qualifications to this privilege. See generally R.I. Gen. Laws § 9-19.1-3. For example, the privilege is inapplicable if the information is already public, if the information is defamatory and the defendant is relying on the information as part of a defense, or if the information should remain secret because of grand jury proceedings. Id.
The scope of the South Carolina privilege is broad and includes information, documents or items obtained or prepared in the gathering and dissemination of news. Since the most common subpoenas seek to compel the production of unpublished photographs of automobile accident scenes and the confirmation of published material, the shield law works to retard the annexation of reporters and photographers as investigators for the litigants.
In Hopewell v. Midcontinent Broadcasting Corp. a libel case, the South Dakota Supreme Court held a defendant journalist had a "qualified privilege [that] protects confidential news sources from disclosure under certain circumstances."
Adopting the Mitchell v. Superior Court, 690 P.2d 625 (Cal. 1984) test to determine whether the privilege applied, the court in Hopewell considered and balanced five factors:
1) nature of litigation ("disclosure is more appropriate if the news person is a party, particularly in libel cases");
2) relevance ("information must go to the heart of the lawsuit");
3) alternative sources (party seeking disclosure "must exhaust all alternative methods of getting the information");
4) importance of confidentiality ("in matters of great public importance where the risk of harm is substantial, the court should protect confidential informants, even if the plaintiff has no other way to obtain the information"); and
5) whether the statement is false ("must make prima facie showing that the statement is false").
The Tennessee shield law provides broad, though qualified, protection of "any information or the source of any information procured for publication or broadcast" by a journalist, and has been construed to cover journalists' sources, as well as all information gathered, whether the information is confidential or not, and whether the information is published or not. Tenn. Code Ann. § 24-1-208(a). The Tennessee Supreme Court has noted that "[t]he Legislature did not qualify 'any information' or the 'source of any information.' The non-specific adjective 'any' means 'all.'" Austin v. Memphis Publishing Co., 655 S.W.2d 146 (Tenn. 1983); see also State v. Kendrick, 178 S.W.3d 734, 738 (Tenn. Crim. App. 2005).
The bill that was originally proposed is a qualified privilege patterned in large part after the United States Department of Justice Guidelines. Proponents believe that the right balance has been struck in Texas’ reporter’s privilege – one in which the goal of increasing the free flow of information and preserving a free and active press has been balanced with protecting the right of the public to effective law enforcement and the fair administration of justice. The purpose of the statute is expressly set forth in the civil statute at Tex. Civ. Prac. & Rem. Code §22.022 and in the criminal statute at Tex. Code Crim. Proc. art. 38.11, §2.
With the adoption of Rule 509, the scope of protection afforded to journalists in Utah by the reporter's privilege has become relatively broad. Under this rule, a reporter may be compelled to disclose confidential source information only when “the person seeking the information demonstrates by clear and convincing evidence that disclosure is necessary to prevent substantial injury or death.” Utah R. Evid. 509(b). Unpublished information also is protected. If the unpublished information is confidential, then the person seeking that information must demonstrate a need “for that information that substantially outweighs the interest of a continued free flow of information to news reporters.” Id. 509(c). For nonconfidential unpublished news information, the person claiming the privilege must demonstrate “that the interest of a continued free flow of information to news reporters outweighs the need for disclosure.” Id. 509(d).
The Vermont Shield Law contains broad definitions of “journalist” and “journalism.” The statute applies to “journalists” and defines a journalist as “an individual or organization engaging in journalism or assisting an individual or organization engaging in journalism at the time the news or information sought to be compelled . . . was obtained” or “or any supervisor, employer, parent company, subsidiary, or affiliate of an individual or organization engaging in journalism . . . .” 12 V.S.A. § 1615(a)(1). The Shield Law then defines “journalism” as:
(a) investigating issues or events of public interest for the primary purpose of reporting, publishing, or distributing news or information to the public, whether or not the news or information is ultimately published or distributed; or
(b) preparing news or information concerning issues or events of public interest for publishing or distributing to the public, whether or not the news or information is ultimately published or distributed.
Id. at (a)(2).
It bears noting that the protection provided by the Shield Law for non-confidential information is greater than that afforded by the reporter’s privilege under the First Amendment even for confidential materials. See In re Inquest Subpoena (WCAX), 2005 VT 103, ¶ 17, 890 A.2d 1240 (Vt. 2005); Spooner v. Town of Topsham, 2007 VT 98, ¶¶ 18-19, 937 A.2d 641 (Vt. 2007).
The privilege is qualified. The scope of the privilege in criminal cases was clearly laid out in Brown v. Commonwealth, 214 Va. 755, 204 S.E.2d 429 (1974). The Supreme Court of Virginia has not addressed the scope of the privilege for civil cases. Lower state and federal courts, however, have applied a 3-part test adopted by the Fourth Circuit Court of Appeals. In recent decisions, federal courts have recognized that the privilege is more limited in criminal cases. See United States v. Sterling, 724 F.3d 482, 492 (4th Cir. 2013) (“There is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify by the prosecution or the defense in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his source.”).
In the three published cases that have specifically acknowledged a common law confidential source privilege, Washington courts have adopted a qualified privilege. See Senear, 97 Wn.2d at 155-56 (civil); Rinaldo, 102 Wn.2d at 755 (criminal); Clampitt, 98 Wn.2d at 642-43 (civil).
Also, please see the discussion of the shield statute, RCW 5.68.010. See Section II.A (Shield law statute) above.
The constitutional protection afforded reporters in West Virginia is good and fairly strong in civil cases, although the privilege is not absolute. As explained by the state Supreme Court in Hudok, in civil cases where the reporter is not a defendant, the burden on a party seeking to compel information or testimony from a reporter is very heavy: a party seeking to compel information from a reporter must show "clearly and specifically" that the information sought from the reporter is (1) "highly material and relevant, necessary or critical to the maintenance of the case"; and (2) "not obtainable from other available sources." 389 S.E.2d at 191. The constitutional privilege articulated in Hudok applies to any and all information acquired by the reporter in the news-gathering process. The application of the privilege is somewhat less strong in libel cases, especially where the reporter is a defendant, and also in criminal cases and grand jury investigations. (However, the reporter’s privilege in West Virginia is now stronger when the identity of a confidential source is sought.)
In regard to confidential sources and information that may identify confidential sources, the statutory Reporter’s Privilege, W.Va. Code § 57-3-10, applies very broadly, to any case, civil or criminal, to prevent compelled disclosure of a confidential source in any instance where the source has not consented to disclosure. The only exceptions to this statutory privilege are instances where the party seeking the information from a reporter can show the disclosure is necessary to prevent imminent death, serious bodily injury or unjust incarceration.