A. Shield law statute
Alabama has a shield statute that provides for an absolute reporter’s privilege. Ala. Code § 12–21–142; Price v. Time, 416 F.3d 1327, 1335 (11th Cir. 2005). The persons covered by the privilege, however, are limited to those engaged in, connected with or employed on any newspaper, radio broadcasting station or television station, while engaged in a news-gathering capacity. The Eleventh Circuit has construed the Alabama shield law strictly, holding that it is “plain and apparent that in common usage ‘newspaper’ does not mean ‘newspaper and magazine.’” Price v. Time, 416 F.3d 1327, 1336, 1339 (11th Cir. 2005).
Florida’s evidence code contains a Reporter’s privilege at Fla. Stat. § 90.5015. Florida upheld a common law and First Amendment reporter’s privilege in State v. Davis, 720 So. 2d 220, 222 (Fla. 1998). In McCarty v. Bankers Ins. Co., the Northern District of Florida held that the test for piercing Florida’s journalist’s privilege was virtually identical to the federal test adopted by the Eleventh Circuit. See also United States v. Fountain View Apartments, Inc., 2009 WL 1905046, *2 n.5 (M.D. Fla. July 1, 2009).
Georgia's Reporter's Shield Law protects nonparty journalists from disclosing information obtained in preparation of news. O.C.G.A. § 24-9-30. 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 federal qualified common law reporter's privilege for non-confidential sources in civil cases, noting the standards for determining the limits of the privilege are virtually identical under the federal common law as they are under the Georgia statute.
“New York's Shield Law provides journalists an absolute privilege from testifying with regard to news obtained under a promise of confidentiality but only a qualified privilege with regard to news that is both unpublished and not obtained under a promise of confidentiality.” Baker v. Goldman Sachs & Co., 669 F.3d 105, 107 (2d Cir. 2012); see New York Civil Rights Law § 79-h. For more information, see New York Privilege Compendium, Section II.A.
The Second Circuit does not appear to have examined the Connecticut shield law statute, which came into law in 2006, and is codified at Conn. Gen. Stat. Ann. § 52-146t. For more information, see Connecticut Privilege Compendium, Section II.A.
The Second Circuit also does not appear to have examined the Vermont shield law statute, which came into law in 2017, and is codified at Vt. Stat. 12, § 1615. For more information, see Vermont Privilege Compendium, Section II.A.
There is no federal shield law statute. However, the Third Circuit has indicated that it may consider state law in evaluating a claim of privilege, even when its jurisdiction is based on a federal question. Riley, 612 F.2d at 715 ("In recognizing such privilege, we may consider also the applicable state law . . . .”); see also Downey, 2003 WL 23164082, at *5 n.6 (considering both federal common law and state law policies when assessing assertion of privilege in action presenting both federal and state law claims and observing that "more emphasis on state law policy is appropriate . . . where the federal . . . claims . . . are notably weak”). Additionally, pursuant to Federal Rule Evidence 501, in diversity actions, courts in the Third Circuit are bound to apply the applicable state law of privilege. See, e.g., Steaks Unlimited, Inc., 623 F.2d at 277 n.63.
As such, in the Third Circuit, the shield law statutes of New Jersey, N.J.S.A. 2A:84A-21, Pennsylvania, 42 Pa. C.S.A. § 5942, and Delaware, 10 Del. Code §§ 4320-26 may be considered.
Texas and Louisiana have shield law statutes that provide for a reporter’s privilege. Texas’s statute provides a qualified testimonial privilege in civil cases. See Tex. Civ. Prac. & Rem. Code §§ 22.021-22.027. There is also a criminal section which addresses confidential sources, unpublished work product and non-confidential sources, and published information. Tex. Code. Crim. P. §§ 38.11-38.111. Louisiana law applies to both civil and criminal proceedings, and protects reporters from having to disclose their sources, La. R.S. 45:1451-1459, and from having to disclose unpublished information. La. R.S. 45:1459. Mississippi does not have a shield law statute.
Nearly all states within the Ninth Circuit have enacted shield law statutes, which protect journalists from being held in contempt of court when they refuse to disclose their sources and/or unpublished information in their possession.
California’s shield law is set out in California Evidence Code section 1070, and it protects journalists (defined to include publishers, editors, reporters, or other persons employed by a journalistic organization, whether their work is in print, radio, or television) from being held in contempt for refusing to “disclose the source of any information” or for “refusing to disclose any unpublished information obtained or prepared in gathering, receiving, or processing of information for communication to the public.” However, the California Supreme Court has held that the shield law’s protection is not an absolute privilege, as it may yield to a criminal defendant’s right to a fair trial. Delaney v. Superior Court, 50 Cal. 3d 785, 805, 789 P.2d 934, 946 (1990); see also Herrera v. Hense, 2008 WL 4609978, at *21 (C.D. Cal. Oct. 10, 2008), aff’d sub nom. Herrera v. Harrington, 456 F. App’x 668 (9th Cir. 2011) (explaining that to overcome the shield law, a criminal defendant must show a reasonable possibility that the unpublished information will materially assist his defense, and if so, the trial court must “balance the interests of the newsperson against those of the defendant”).
Other states, including Arizona, Nevada, Oregon, and Alaska have shield laws that are more protective than California’s. Nevada’s, for example, confers an absolute privilege, providing that no journalist (broadly defined) may be required to disclose any unpublished information or information regarding his or her sources. Nev. Rev. Stat. Ann. § 49.275 (West). Oregon’s statute is of a piece with Nevada’s, except it adds that journalists may not be subject to searches by any government authority with the power to produce evidence, including by search warrants, except when “probable cause exists to believe” that the journalist has committed, is committing, or is about to commit a crime. Or. Rev. Stat. Ann. § 44.520 (West). Likewise, Arizona’s shield law protects journalists from having to disclose information regarding their sources (but not unpublished information) without qualification. Ariz. Rev. Stat. Ann. § 12-2237. Montana’s Media Confidentiality Act provides an absolute privilege as to unpublished information and information regarding sources, plus protection against findings of contempt for refusing to produce information requested in a subpoena. Mont. Code Ann. § 26-1-902 (West). Alaska’s statute protects only information regarding sources, and states that a “reporter may not be compelled to disclose the source of information procured or obtained while acting in the course of duties as a . . . reporter.” Alaska Stat. Ann. § 09.25.300 (West).
Finally, a number of states have shield laws that are similar to California’s but include some qualifications. Washington’s, for instance, prohibits a judicial, legislative, or administrative body from compelling the news media to “testify, produce, or otherwise disclose: (a) [t]he identity of a source of any news . . . or (b) [a]ny news or information obtained or prepared by the news media in its capacity in gathering, receiving, or processing news or information,” including outtakes, and excluding physical evidence of a crime. Wash. Rev. Code Ann. § 5.68.010 (West). The news media’s privilege with respect to information regarding its sources (in subsection “a”) is absolute, Republic of Kazakhstan v. Does 1-100, 192 Wash. App. 773, 786, 368 P.3d 524, 530 (2016), while its privilege as to other information (in subsection “b”) is qualified. Specifically, the party seeking information under subsection “a” must establish, inter alia, that the news or information is “highly material and relevant,” “critical or necessary” to a party’s legal claim, and that the party has “exhausted all reasonable and available means to obtain it from alternative sources.” Wash. Rev. Code Ann. § 5.68.010 (West).
Idaho does not have a shield law. Hawaii no longer has a state shield law, having repealed it on June 30, 2013.
When faced with cases that involve claims under both federal and state law, courts in the Ninth Circuit have taken varying approaches on whether federal or state privilege law applies. On reporter’s privilege specifically, one court has evaluated privilege issues related to federal claims under federal law and privilege issues related to state claims under state law. See L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 89 F.R.D. 489, 492 (C.D. Cal. 1981) (applying qualified common law reporter’s privilege to federal law claims and California’s shield law to state law claims).
Originally enacted in 1935, Alabama's shield statute provides an absolute privilege to persons engaged in a newsgathering capacity on behalf of a newspaper, radio station, or a television station. The shield statute prohibits those persons from being compelled to disclose "sources" of information provided that the information was obtained or procured by the reporter and published in a newspaper, broadcast on a broadcasting station, or televised by a television station. Specifically, the statute provides as follows:
No person engaged in, connected with or employed on any newspaper, radio broadcasting station or television station, while engaged in a news-gathering capacity, shall be compelled to disclose in any legal proceeding or trial, before any court or before a grand jury of any court, before the presiding officer of any tribunal or his agent or agents or before any committee of the legislature or elsewhere the sources of any information procured or obtained by him and published in the newspaper, broadcast by any broadcasting station, or televised by any television station on which he is engaged, connected with or employed.
Ala. Code § 12-21-142. As originally enacted, the privilege extended only to newspaper employees, but as the forms of news media expanded to include radio and television broadcasting, the privilege was extended to reporters working in those media as well.
Alaska has a shield law, presently codified as AS 09.25.300 - .390. (The shield law, which encompasses public officials as well as reporters, was codified as AS 09.25.150 - .220 until it was re-numbered in 1994.) The shield law was enacted in 1967. There is no significant legislative history, nor have there been significant amendments to it. The text of the statute is as follows:
Alaska Statutes, Title 09, Chapter 25.
Article 3. Privilege of Public Officials and Reporters
AS 09.25.300. Claiming of Privilege By Public Official or Reporter.
Except as provided in AS 09.25.300 - 09.25.390, a public official or reporter may not be compelled to disclose the source of information procured or obtained while acting in the course of duties as a public official or reporter.
AS 09.25.310. Challenge of Privilege Before Superior or Supreme Court.
(a) When a public official or reporter claims the privilege in a cause being heard before the supreme court or a superior court of this state, a person who has the right to question the public official or reporter in that proceeding, or the court on its own motion, may challenge the claim of privilege. The court shall make or cause to be made whatever inquiry the court thinks necessary to a determination of the issue. The inquiry may be made instanter by way of questions put to the witness claiming the privilege and a decision then rendered, or the court may require the presence of other witnesses or documentary showing or may order a special hearing for the determination of the issue of privilege.
(b) The court may deny the privilege and may order the public official or the reporter to testify, imposing whatever limits upon the testimony and upon the right of cross-examination of the witness as may be in the public interest or in the interest of a fair trial, if it finds the withholding of the testimony would
(1) result in a miscarriage of justice or the denial of a fair trial to those who challenge the privilege; or
(2) be contrary to the public interest.
AS 09.25.320. Challenge of Privilege Before Other Bodies.
(a) This section is applicable to a hearing held under the laws of this state
(1) before a court other than the supreme or a superior court;
(2) before a court commissioner, referee, or other court appointee;
(3) in the course of legislative proceedings or before a commission, agency, or committee created by the legislature;
(4) before an agency or representative of an agency of the state, borough, city or other municipal corporation, or other body; or
(5) before any other forum of this state.
(b) If, in a hearing, a public official or a reporter should refuse to divulge the source of information, the agency body, person, official, or party seeking the information may apply to the superior court for an order divesting the official or reporter of the privilege. When the issue is raised before the supreme or a superior court, the application must be made to that court.
(c) Application for an order shall be made by verified petition setting out the reasons why the disclosure is essential to the administration of justice, a fair trial in the instant proceeding, or the protection of the public interest. Upon application, the court shall determine the notice to be given to the public official or reporter and fix the time and place of hearing. The court shall make or cause to be made whatever inquiry the court thinks necessary, and make a determination of the issue as provided for in AS 09.25.310.
AS 09.25.330. Order Subject to Review.
An order of the superior court entered under AS 09.25.300 - 09.25.390 shall be subject to review by the supreme court, by appeal or by certiorari, as the rules of that court may provide. During the pendency of the appeal, the privilege shall remain in full force and effect.
AS 09.25.340. Extent of Privilege.
When a public official or reporter claims the privilege conferred by AS 09.25.300 - 09.25.390 and the public official or reporter has not been divested of the privilege by order of the supreme or superior court, neither the public official or reporter nor the news organization with which the reporter was associated may thereafter be permitted to plead or prove the sources of information withheld, unless the informant consents in writing or in open court.
AS 09.25.350. Application of Privilege in Other Courts.
AS 09.25.300 - 09.25.390 also apply to proceedings held under the laws of the United States or any other state where the law of this state is being applied.
AS 09.25.360. AS 09.25.300 - 09.25.390 Do Not Abridge Other Privileges.
AS 09.25.300 - 09.25.390 may not be construed to abridge any of the privileges recognized under the laws of this state, whether at common law or by statute.
AS 09.25.390. Definitions For AS 09.25.300 - 09.25.390.
In AS 09.25.300 - 09.25.390, unless the context otherwise requires,
(1) "news organization" means
(A) an individual, partnership, corporation, or other association regularly engaged in the business of
(i) publishing a newspaper or other periodical that reports news events, is issued at regular intervals, and has a general circulation;
(ii) providing newsreels or other motion picture news for public showing; or
(iii) broadcasting news to the public by wire, radio, television, or facsimile;
(B) a press association or other association of individuals, partnerships, corporations, or other associations described in (A)(i), (ii), or (iii) of this paragraph engaged in gathering news and disseminating it to its members for publication;
(2) "privilege" means the conditional privilege granted to public officials and reporters to refuse to testify as to a source of information;
(3) "public official" means a person elected to a public office created by the Constitution or laws of this state, whether executive, legislative, or judicial, and who was holding that office at the time of the communication for which privilege is claimed;
(4) "reporter" means a person regularly engaged in the business of collecting or writing news for publication, or presentation to the public, through a news organization; it includes persons who were reporters at the time of the communication, though not at the time of the claim of privilege.
Arizona has two statutes that protect reporters from third-party discovery. The Arizona Shield Law protects against compelled disclosure of information that could identify a confidential source. Entitled “Reporter and informant,” the statute states:
A person engaged in newspaper, radio, television or reportorial work, or connected with or employed by a newspaper, radio or television station, shall not be compelled to testify or disclose in a legal proceeding or trial or any proceeding whatever, or before any jury, inquisitorial body or commission, or before a committee of the legislature, or elsewhere, the source of information procured or obtained by him for publication in a newspaper or for broadcasting over a radio or television station with which he was associated or by which he is employed.
A.R.S. § 12-2237. The statute was enacted in 1937, and has remained largely unchanged. Matera v. Superior Court, 170 Ariz. 446, 449, 825 P.2d 971, 974 (Ct. App. 1992). It was re-codified under its own section in a 1960 amendment that broadened the scope of the privilege to cover broadcast as well as print media. Matera, 170 Ariz. at 449 n.2, 825 P.2d at 974 n.2.
In addition to the Arizona Shield Law, the Arizona Media Subpoena Law imposes a number of requirements on litigants seeking to compel discovery from the press. The Arizona Media Subpoena Law states:
- A subpoena for the attendance of a witness or for production of documentary evidence issued in a civil or criminal proceeding and directed to a person engaged in gathering, reporting, writing, editing, publishing or broadcasting news to the public, and which relates to matters within these news activities, shall have attached to it an affidavit of a person with a direct interest in the matters sought which states all of the following:
- Each item of documentary and evidentiary information sought from the person subpoenaed.
- That the affiant or his representative has attempted to obtain each item of information from all other available sources, specifying which items the affiant has been unable to obtain.
- The identity of the other sources from which the affiant or his representative has attempted to obtain the information.
- That the information sought is relevant and material to the affiant's cause of action or defense.
- That the information sought is not protected by any lawful privilege.
- That the subpoena is not intended to interfere with the gathering, writing, editing, publishing, broadcasting and disseminating of news to the public as protected by the first amendment, Constitution of the United States, or by article II, section 6, Constitution of Arizona.
- A subpoena served on a person described in subsection A without the required affidavit attached to it has no effect.
- If the affidavit is controverted or a motion to quash the subpoena or for a protective order is filed by the person subpoenaed, the command of the subpoena shall be postponed until a hearing is held and the court enters an order. After the hearing the command of the subpoena shall be carried out in accordance with the order of this court.
- This section does not apply to a subpoena for the attendance of a witness or the production of documentary evidence issued by or on behalf of a grand jury or a magistrate during an investigative criminal proceeding.
A.R.S. § 12-2214.
When the committees of the Senate and House of Representatives were contemplating the Arizona Media Subpoena Law, the only testifying witnesses were employees of Arizona's daily newspapers and television stations. Matera, 170 Ariz. at 448, 825 P.2d at 973. In Matera, the court held that A.R.S. § 12-2214 was intended to apply to persons who gather and disseminate news on a regular basis – not to the author of a work of non-fiction.
The Matera court observed that "the purpose of the Media Subpoena Law is to protect members of the media from 'fishing expeditions' that would interfere with the ongoing business of gathering and reporting news to the public. The statute balances the needs of media personnel against the needs of litigants, tipping the balance in favor of interference with newsgathering only upon a showing of need, proven by affidavit." 170 Ariz. at 448, 825 P.2d at 973. The court differentiated the statute from the Arizona Shield Law, and held that "the statute was not designed to protect the information collected, but rather was designed to aid a specific class of persons – members of the news media – in performing their jobs free from the inconvenience of being used as surrogate investigators for private litigants." Id. See also Bartlett v. Superior Court, 150 Ariz. 178, 183, 722 P.2d 346, 351 (Ct. App. 1986) ("[I]t was the intention of the legislature in enacting A.R.S. § 12-2214 to protect the media from being turned into 'litigation consultants' by lawyers who, though the use of a subpoena, are able to enlist the aid of the media in preparing their cases.")
The most recent development concerning the interpretation of the Media Subpoena Law occurred in 2016, when the Arizona Court of Appeals issued its decision in Phoenix Newspapers, Inc. v. Reinstein, 240 Ariz. 442, 381 P.3d 236 (App. 2016). That case involved a subpoena to a reporter demanding that he produce notes of interviews with the surviving victim of a brutal assault on two clergymen. Id. at 444, 381 P.3d at 238. Although the subpoena was supported by an affidavit of counsel, the reporter challenged its sufficiency under the statute, arguing that it failed to satisfy the exhaustion requirement and that the information was protected by statute and privileged under the First Amendment.
After discussing the scope and requirements of the Media Subpoena Law, the court concluded that the requesting party had failed to satisfy the exhaustion requirement because he never attempted to interview the surviving victim. Id. at 446-47, 381 P.3d at 240-41. The Court of Appeals rejected the requestor’s assertion that a new interview with the victim would not yield the same information because the prior interview occurred more than a year earlier. Id. Ultimately, the Court found that the information contained in the reporter’s notes were subject to the qualified privilege afforded under the First Amendment. Id. at 448-49, 381 P.3d at 242-43.
Arkansas's shield law is codified at Ark. Code Ann. § 16-85-510. The statute states in its entirety:
Before any editor, reporter, or other writer for any newspaper, periodical, radio station, television station, or internet news source, or publisher of any newspaper, periodical, or internet news source, or manager or owner of any radio station shall be required to disclose to any grand jury or to any other authority the source of information used as the basis for any article he or she may have written, published, or broadcast, it must be shown that the article was written, published, or broadcast in bad faith, with malice, and not in the interest of the public welfare.
The law was originally approved by Arkansas voters as Initiated Act No. 3 of 1936. The reporters' shield provision was part of a larger criminal procedure reform package initially proposed by the Arkansas Bar Association's Committee on Law and Law Reform. See Robert A. Leflar, The Criminal Procedure Reforms of 1936--Twenty Years After, 11 Ark. L. Rev. 117 (1957). In 1934, Governor J.M. Futrell appointed a committee to study and draft proposed changes to Arkansas's criminal law. In 1935, the blue-ribbon committee proposed an amendment to the Arkansas Constitution to the General Assembly. Id. at 118. After the Legislature made significant changes to the proposed amendment, the bar association proposed an initiated act to be placed directly before the voters, bypassing the Legislature. This initiative included the shield law. Id. at 126. The reporters' shield was seen as a necessary component to the criminal law reform effort in two distinct ways. First, the blue-ribbon panel was convinced that "undercover criminal activities [that] might have political or economic protection in a community were much more likely to be brought to light, and ultimately prosecuted, if news reporters were given the freedom" to protect confidential sources. Id. Secondly, and in a much more politically calculating vein, the drafters may have hoped that inclusion of the reporters' shield would help to ensure the newspapers' support for the act as a whole. See id. at 126 n.42. Voters passed the act overwhelmingly in November, 1936 by a vote of 121,310 votes in favor of the act to only 29,181 against. The act went into effect in January, 1937. As an act adopted by the voters, it can be amended or repealed only by a two-thirds vote of all of the members elected to each house of the Arkansas General Assembly. Ark. Const. amend. 7.
While the original version of the shield law covered only the print medium, the Legislature amended the act in 1949 to include radio broadcasters. In 2011, the Legislature amended the title of the act to “disclosure of media sources” and added television stations and internet news sources to the list of protected entities.
The only reported Arkansas case to address § 16-85-510 is Saxton v. Arkansas Gazette Co., 264 Ark. 133, 569 S.W.2d 115 (1978). In that case, the Arkansas Supreme Court made clear that, while the act specifically mentions protecting source disclosures before a grand jury in the course of a criminal proceeding, the language "or to any other authority" makes the statute applicable to civil cases as well. Id. at 136, 569 S.W.2d at 117. The court also stated that leading United States Supreme Court cases such as Branzburg v. Hayes, 408 U.S. 665 (1972), and others that have not found a constitutional right for a reporter to protect a source, are inapplicable in Arkansas courts because of the state's shield law. Saxton, 264 Ark. at 135-36, 569 S.W.2d at 116-17.
Two federal judges have held that the statute is not controlling in a federal proceeding based solely on federal law. See United States v. Hively, 202 F. Supp.2d 886 (E.D. Ark. 2002) (denying a motion to limit newspaper reporter's testimony); In re Grand Jury Subpoena Am. Broad. Co., Inc., 947 F. Supp. 1314 (E.D. Ark. 1996) (denying a motion to quash federal grand jury subpoena). Another federal judge in a diversity case governed by Arkansas law required a television broadcaster to turn over video outtakes to plaintiffs in a defamation and invasion of privacy lawsuit, noting that the Arkansas shield law did not apply because no sources of information would be revealed from that disclosure. See Williams, 96 F.R.D. at 658. Recently, a federal judge refused to force a reporter to disclose information about an alleged meeting between the reporter and the defendant on the basis that plaintiff could not show the information sought was unavailable from another source, in this case, the defendant. Singer v. Harris, 2016 WL 10459386, Case No. 4:15CV00408 BSM (E.D. Ark. May 16, 2016)
California Evidence Code § 1070 currently provides as follows:
1070. Newsmen’s Privilege—Unpublished Information.
(a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, 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 proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.
(b) Nor can a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.
(c) As used in this section, “unpublished information” includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.
Cal. Evid. Code § 1070.
California’s shield law was first adopted in 1935 as Code of Civil Procedure § 1881. Delaney v. Superior Court, 50 Cal. 3d 785, 795-96, 789 P.2d 934, 268 Cal. Rptr. 753 (1990). At that time, it provided immunity from contempt for a newspaper employee’s refusal to disclose source information, but it did not explicitly protect other unpublished information or other forms of media. Id. Amendments added employees of radio and television stations, press associations, and wire services to the shield law’s protection. Id. In 1965, the shield law was transferred to Evidence Code § 1070. Id. In 1972, apparently in response to the United States Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972) (which held that a newsperson did not have a qualified privilege against disclosing source information to a grand jury), the California Legislature amended Section 1070 to protect “unpublished information,” in addition to protecting the identity of confidential sources. Id.
The reporter’s privilege in the California Evidence Code is essentially identical to the provision of the California Constitution that was adopted in 1980, discussed below. Consequently, the cases applying the reporter’s privilege typically rely on the Constitution for support, rather than the statute.
The Colorado Press Shield Law, C.R.S. § 13-90-119 states:
(1) As used in this section, unless the context otherwise requires:
(a) "Mass medium" means any publisher of a newspaper or periodical; wire service; radio or television station or network; news or feature syndicate; or cable television system.
(b) "News information" means any knowledge, observation, notes, documents, photographs, films, recordings, videotapes, audiotapes, and reports, and the contents and sources thereof, obtained by a newsperson while engaged as such, regardless of whether such items have been provided to or obtained by such newsperson in confidence.
(c) "Newsperson" means any member of the mass media and any employee or independent contractor of a member of the mass media who is engaged to gather, receive, observe, process, prepare, write, or edit news information for dissemination to the public through the mass media.
(d) "Press conference" means any meeting or event called for the purpose of issuing a public statement to members of the mass media, and to which members of the mass media are invited in advance.
(e) "Proceeding" means any civil or criminal investigation, discovery procedure, hearing, trial, or other process for obtaining information conducted by, before, or under the authority of any judicial body of the state of Colorado. Such term shall not include any investigation, hearing, or other process for obtaining information conducted by, before, or under the authority of the general assembly.
(f) "Source" means any person from whom or any means by or through which news information is received or procured by a newsperson, while engaged as such, regardless of whether such newsperson was requested to hold confidential the identity of such person or means.
(2) Notwithstanding any other provision of law to the contrary and except as provided in subsection (3) of this section, no newsperson shall, without such newsperson's express consent, be compelled to disclose, be examined concerning refusal to disclose, be subjected to any legal presumption of any kind, or be cited, held in contempt, punished, or subjected to any sanction in any judicial proceedings for refusal to disclose any news information received, observed, procured, processed, prepared, written, or edited by a newsperson, while acting in the capacity of a newsperson; except that the privilege of nondisclosure shall not apply to the following:
(a) News information received at a press conference;
(b) News information which has actually been published or broadcast through a medium of mass communication;
(c) News information based on a newsperson's personal observation of the commission of a crime if substantially similar news information cannot reasonably be obtained by any other means;
(d) News information based on a newsperson's personal observation of the commission of a class 1, 2, or 3 felony.
(3) Notwithstanding the privilege of nondisclosure granted in subsection (2) of this section, any party to a proceeding who is otherwise authorized by law to issue or obtain subpoenas may subpoena a newsperson in order to obtain news information by establishing by a preponderance of the evidence, in opposition to a newsperson's motion to quash such subpoena:
(a) That the news information is directly relevant to a substantial issue involved in the proceeding;
(b) That the news information cannot be obtained by any other reasonable means; and
(c) That a strong interest of the party seeking to subpoena the newsperson outweighs the interests under the first amendment to the United States constitution of such newsperson in not responding to a subpoena and of the general public in receiving news information.
(4) The privilege of nondisclosure established by subsection (2) of this section may be waived only by the voluntary testimony or disclosure of a newsperson that directly addresses the news information or identifies the source of such news information sought. A publication or broadcast of a news report through the mass media concerning the subject area of the news information sought, but which does not directly address the specific news information sought, shall not be deemed a waiver of the privilege of nondisclosure as to such specific news information.
(5) In any trial to a jury in an action in which a newsperson is a party as a result of such person's activities as a newsperson and in which the newsperson has invoked the privilege created by subsection (2) of this section, the jury shall be neither informed nor allowed to learn that such newsperson invoked such privilege or has thereby declined to disclose any news information.
(6) Nothing in this section shall preclude the issuance of a search warrant in compliance with the federal "Privacy Protection Act of 1980", 42 U.S.C. sec. 2000aa.
Text and Statute Number
Section 52-146t of the Connecticut General Statutes, entitled "Protection From Compelled Disclosure of Information Obtained by New Media," (the “Shield Law”) provides as follows:
(a) As used in this section:
(1) "Information" has its ordinary meaning and includes, but is not limited to, any oral, written or pictorial material, whether or not recorded, including any notes, outtakes, photographs, video or sound tapes, film or other data of whatever sort in any medium; and
(2) "News media" means:
(A) Any newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite or other transmission system or carrier, or channel or programming service for such station, network, system or carrier, or audio or audiovisual production company that disseminates information to the public, whether by print, broadcast, photographic, mechanical, electronic or any other means or medium;
(B) Any person who is or has been an employee, agent or independent contractor of any entity specified in subparagraph (A) of this subdivision and is or has been engaged in gathering, preparing or disseminating information to the public for such entity, or any other person supervising or assisting such person with gathering, preparing or disseminating information; or
(C) Any parent, subsidiary, division or affiliate of any person or entity specified in subparagraph (A) or (B) of this subdivision to the extent the subpoena or other compulsory process seeks the identity of a source or the information described in subsection (b) of this section.
(b) No judicial, executive or legislative body with the power to issue a subpoena or other compulsory process may compel the news media to testify concerning, or to produce or otherwise disclose, 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, unless such judicial, executive or legislative body complies with the provisions of subsections (c) to (e), inclusive, of this section.
(c) Prior negotiations with the news media shall be pursued in all matters in which the issuance of a subpoena to, or the initiation of other compulsory process against, the news media is contemplated for information described in subsection (b) of this section or the identity of the source of such information, or any information that would tend to identify the source of any such information.
(d) If the news media and the party seeking to compel disclosure of information described in subsection (b) of this section or the identity of the source of any such information, or any information that would tend to identify the source of any such information, fail to reach a resolution, a court may compel disclosure of such information or the identity of the source of such information only if the court finds, after notice to and an opportunity to be heard by the news media, that the party seeking such information or the identity of the source of such information has established by clear and convincing evidence:
(1) That (A) in a criminal investigation or prosecution, based on information obtained from other sources than the news media, there are reasonable grounds to believe that a crime has occurred, or (B) in a civil action or proceeding, based on information obtained from other sources than the news media, there are reasonable grounds to sustain a cause of action; and
(2) That (A) the information or the identity of the source of such information is 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, (B) the information or the identity of the source of such information is not obtainable from any alternative source, and (C) there is an overriding public interest in the disclosure.
(e) A court of this state shall apply the procedures and standards specified by this section to any subpoena or other compulsory process whether it arises from or is associated with a proceeding under the laws of this state or any other jurisdiction, except that with respect to a proceeding arising under the laws of another jurisdiction, a court of this state shall not afford lesser protection to the news media than that afforded by such other jurisdiction. No subpoena or compulsory process arising from or associated with a proceeding under the laws of another jurisdiction shall be enforceable in this state unless a court in this state has personal jurisdiction over the person or entity against which enforcement is sought.
(f) The provisions of subsection (b) of this section protecting from compelled disclosure information described in said subsection and the identity of the source of any such information shall also apply if a subpoena is issued to, or other compulsory process is initiated against, a third party that seeks information concerning business transactions between such third party and the news media for the purpose of obtaining information described in said subsection or discovering the identity of a source of any such information. Whenever a subpoena is issued to, or other compulsory process is initiated against, a third party that seeks information concerning business transactions between such third party and the news media, the affected news media shall be given reasonable and timely notice of the subpoena or compulsory process before it is executed or initiated, as the case may be, and an opportunity to be heard.
(g) Publication or dissemination by the news media of information described in subsection (b) of this section, or a portion thereof, shall not constitute a waiver of the protection from compelled disclosure provided in said subsection with respect to any information that is not published or disseminated.
(h) Any information obtained in violation of the provisions of this section, and the identity of the source of such information, shall be inadmissible in any action, proceeding or hearing before any judicial, executive or legislative body.
(i) Whenever any person or entity seeks the disclosure from the news media of information that is not protected against compelled disclosure pursuant to subsection (b) of this section, such person or entity shall pay the actual cost that would be incurred by the news media in making a copy of such information if a subpoena or other compulsory process was not available, and may not use a subpoena or other compulsory process as a means to avoid paying such actual cost.
(j) Nothing in subsections (a) to (i), inclusive, of this section shall be construed to deny or infringe the rights of an accused in a criminal prosecution guaranteed under the sixth amendment to the Constitution of the United States and article twenty-ninth of the amendments to the Constitution of the state of Connecticut.
The Shield Law was enacted by Public Act 06-140 and signed into law by Gov. Jodi Rell (R) on July 27 2006. It took effect October 1, 2006. Sponsored by State Rep. James Spallone (D-Essex), the legislation creating the law was entitled "An Act Concerning Freedom of the Press." It was passed by the House of Representatives by a vote of 136-11, and by the Senate 36-0.
Among the bill's supporters were the Connecticut Broadcaster's Association and the Connecticut Daily Newspaper Association.
While the D.C. Circuit itself has not yet addressed the issue, decisions from the district court suggest that the D.C. Free Flow of Information Act, D.C. Code §§ 16-4701 et seq., does not apply in federal causes of action in federal court. Lee v. Dep’t of Justice, 287 F. Supp. 2d 15 (D.D.C. 2003) (“Evidentiary privileges in cases arising under federal substantive law in federal court are governed exclusively by the federal law of privilege.”); In re Special Counsel Investigation, 332 F. Supp. 2d 26, 32 (D.D.C. 2004) (same). The D.C. shield law’s protections may be available, however, in cases before the district court on diversity jurisdiction. Gray v. Hoffman-La Roche, Inc., 2002 WL 1801613, at *1 (D.D.C. Mar. 27, 2002) (applying D.C. shield law and granting motion to quash third party subpoena to journalist); Grunseth v. Marriott Corp., 868 F. Supp. 333, 336-37 (D.D.C. 1994) (same).
10 Del. C. § 4320-26
- 4320. Definitions
As used in this subchapter:
(1) "Adjudicative proceeding" means any judicial or quasi-judicial proceeding in which the rights of parties are determined but does not include any proceeding of a grand jury.
(2) "Information" means any oral, written or pictorial material and includes, but is not limited to, documents, electronic impulses, expressions of opinion, films, photographs, sound records, and statistical data.
(3) "Person" means individual, corporation, business trust, estate, trust, partnership or association, governmental body, or any other legal entity.
(4) "Reporter" means any journalist, scholar, educator, polemicist, or other individual who either:
- At the time he obtained the information that is sought was earning his or her principal livelihood by, or in each of the preceding 3 weeks or 4 of the preceding 8 weeks had spent at least 20 hours engaged in the practice of, obtaining or preparing information for dissemination with the aid of facilities for the mass reproduction of words, sounds, or images in a form available to the general public; or
- Obtained the information that is sought while serving in the capacity of an agent, assistant, employee, or supervisor of an individual who qualifies as a reporter under subparagraph a.
(5) "Source" means a person from whom a reporter obtained information by means of written or spoken communication or the transfer of physical objects, but does not include a person from whom a reporter obtained information by means of personal observation unaccompanied by any other form of communication and does not include a person from whom another person who is not a reporter obtained information, even if the information was ultimately obtained by a reporter.
(6) "Testify" means give testimony, provide tangible evidence, submit to a deposition, or answer interrogatories.
(7) "Within the scope of his or her professional activities" means any situation, including a social gathering, in which the reporter obtains information for the purpose of disseminating it to the public, but does not include any situation in which the reporter intentionally conceals from the source the fact that he or she is a reporter and does not include any situation in which the reporter is an eyewitness to or participant in an act involving physical violence or property damage.
- 4321. Privilege in nonadjudicative proceedings
A reporter is privileged in a nonadjudicative proceeding to decline to testify concerning either the source or content of information that he obtained within the scope of his professional activities.
- 4322. Privilege in adjudicative proceedings
A reporter is privileged in an adjudicative proceeding to decline to testify concerning the source or content of information that he or she obtained within the scope of his or her professional activities if the reporter states under oath that the disclosure of the information would violate an express or implied understanding with the source under which the information was originally obtained or would substantially hinder the reporter in the maintenance of existing source relationships or the development of new source relationships.
- 4323. Exceptions to the privilege in adjudicative proceedings
(a) Unless the disclosure of the content of the information would substantially increase the likelihood that the source of the information will be discovered, the privilege provided by § 4322 shall not prevent a reporter from being required in an adjudicative proceeding to testify concerning the content, but not the source, of information that the reporter obtained within the scope of his or her professional activities if the judge determines that the public interest in having the reporter's testimony outweighs the public interest in keeping the information confidential. In making this determination, the judge shall take into account the importance of the issue on which the information is relevant, the efforts that have been made by the subpoenaing party to acquire evidence on the issue from alternative sources, the sufficiency of the evidence available from alternative sources, the circumstances under which the reporter obtained the information, and the likely effect that disclosure of the information will have on the future flow of information to the public.
(b) The privilege provided by § 4322 shall not prevent a reporter from being required in an adjudicative proceeding to testify concerning either the source or the content of information that the reporter obtained within the scope of his or her professional activities if the party seeking to have the reporter testify proves by a preponderance of the evidence that the sworn statement submitted by the reporter as required by § 4322 is untruthful.
- 4324. Determination of privilege claim
A person who invokes the privilege provided by this subchapter may not be required to testify in any proceeding except by court order. If a person invokes the privilege in any proceeding other than a court proceeding, the body or party seeking to have the person testify may apply to the Superior Court for an order requiring the claimant of the privilege to testify. If the Court determines that the claimant does not qualify for the privilege under the provisions of this subchapter, it shall order him to testify.
- 4325. Waiver
If a reporter waives the privilege provided by this subchapter with respect to certain facts, he or she may be cross-examined on the testimony or other evidence he or she gives concerning those facts but not on other facts with respect to which the reporter claims the privilege. A reporter does not waive or forfeit the privilege by disclosing all or any part of the information protected by the privilege to any other person.
- 4326. Short title
This subchapter may be cited as the "Reporters' Privilege Act."
District of Columbia
In 1992, the District of Columbia’s City Council enacted (with Congress’s approval) the Free Flow of Information Act, D.C. Code §§ 16-4701 et seq. (Under the District’s Home Rule Act, the Council may pass legislation for the District with certain exceptions; an act of the Council becomes effective if Congress does not pass a joint resolution disapproving of the act within a specified time period, generally 30 or 60 days. See D.C. Code §§ 1-204.04, 1-206.02.)
In 1998, the Florida legislature passed Section 90.5015, Florida Statutes, which codified and expanded the existing common law qualified privilege. The statute became effective on May 12, 1998.
In passing Section 90.5015, the Florida House of Representatives specifically noted that the statute would both enhance the media's ability to collect news and impede the discovery of media-held evidence. The House also noted that the privilege would clarify the common law to provide protection for non-confidential information and that the privilege would not be waived by voluntary disclosure.
As set forth in the Florida Evidence Code, Section 90.5015 reads:
90.5015 Journalist's privilege.--
(1) DEFINITIONS.--For purposes of this section, the term:
(a) "Professional journalist" means a person regularly engaged in collecting, photographing, recording, writing, editing, reporting, or publishing news, for gain or livelihood, who obtained the information sought while working as a salaried employee of, or independent contractor for, a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine. Book authors and others who are not professional journalists, as defined in this paragraph, are not included in the provisions of this section.
(b) "News" means information of public concern relating to local, statewide, national, or worldwide issues or events.
(2) PRIVILEGE.--A professional journalist has a qualified privilege not to be a witness concerning, and not to disclose the information, including the identity of any source, that the professional journalist has obtained while actively gathering news. This privilege applies only to information or eyewitness observations obtained within the normal scope of employment and does not apply to physical evidence, eyewitness observations, or visual or audio recording of crimes. A party seeking to overcome this privilege must make a clear and specific showing that:
(a) The information is relevant and material to unresolved issues that have been raised in the proceeding for which the information is sought;
(b) The information cannot be obtained from alternative sources; and
(c) A compelling interest exists for requiring disclosure of the information.
(3) DISCLOSURE.--A court shall order disclosure pursuant to subsection (2) only of that portion of the information for which the showing under subsection (2) has been made and shall support such order with clear and specific findings made after a hearing.
(4) WAIVER.--A professional journalist does not waive the privilege by publishing or broadcasting information.
(5) CONSTRUCTION.--This section must not be construed to limit any privilege or right provided to a professional journalist under law.
(6) AUTHENTICATION.--Photographs, diagrams, video recordings, audio recordings, computer records, or other business records maintained, disclosed, provided, or produced by a professional journalist, or by the employer or principal of a professional journalist, may be authenticated for admission in evidence upon a showing, by affidavit of the professional journalist, or other individual with personal knowledge, that the photograph, diagram, video recording, audio recording, computer record, or other business record is a true and accurate copy of the original, and that the copy truly and accurately reflects the observations and facts contained therein.
(7) ACCURACY OF EVIDENCE.--If the affidavit of authenticity and accuracy, or other relevant factual circumstance, causes the court to have clear and convincing doubts as to the authenticity or accuracy of the proferred evidence, the court may decline to admit such evidence.
(8) SEVERABILITY.--If any provision of this section or its application to any particular person or circumstance is held invalid, that provision or its application is severable and does not affect the validity of other provisions or applications of this section.
- 90.5015, Fla. Stat. (2016).
The privilege is qualified and extends to both confidential and non-confidential sources and information. Muhammad v. State, 132 So. 3d 176, 190 (Fla. 2013); State v. Davis, 720 So. 2d 220, 222 (Fla. 1998). In 1993, the Florida legislature passed a similar reporter's privilege bill that would have created an absolute privilege not to reveal information obtained from confidential sources. The bill was vetoed by the Governor.
In Georgia, the reporter's privilege is recognized by statute, which states:
Any person, company, or other entity engaged in the gathering and dissemination of news for the public through any newspaper, book, magazine, radio or television broadcast, or electronic means shall have a qualified privilege against disclosure of any information, document, or item obtained or prepared in the gathering or dissemination of news in any proceeding where the one asserting the privilege is not a party, unless it is shown that this privilege has been waived or that what is sought:
(1) Is material and relevant;
(2) Cannot be reasonably obtained by alternative means; and
(3) Is necessary to the proper preparation or presentation of the case of a party seeking the information, document, or item.
O.C.G.A. § 24-5-508.
The privilege was originally codified in 1990, as O.C.G.A. § 24-9-30, by the Georgia General Assembly after the Georgia Supreme Court ruled that Georgia law afforded no special relief to subpoenaed reporters. See generally Vaughn v. State, 259 Ga. 325 (1989); Howard v. Savannah College of Art and Design, Inc., 259 Ga. 795 (1990).
In oral argument in Howard, Justice Charles L. Weltner suggested that a reporter's privilege would have to come from the state legislature. The following legislative session the Georgia Press Association lobbied for a statutory privilege, which resulted in the adoption of O.C.G.A. § 24-9-30.
In 2011, as part of a general overhaul of Georgia’s evidence code that went into effect in 2013, the privilege was recodified as O.C.G.A. § 24-5-508 with a change making clear that it protected electronic media.
Hawai'i currently has no shield statute. Although Hawai‘i previously had enacted a shield statute in 2008, Act 210, HB2557 (Jul. 2, 2008), the law had a sunset provision that would repeal the statute on June 30, 2011 unless the legislature reauthorized its extension before that time, id. In 2011, the legislature extended the life of the shield statute for two additional years, but in June 2013, the statute was allowed to lapse and therefore was automatically repealed. A subsequent legislative effort in 2015 to re-enact a similar shield statute failed, leaving Hawai‘i without a shield statute.
Effective July 1, 1982, the Illinois legislature enacted a reporter’s privilege statute incorporating it into the state’s Code of Civil Procedure, 735 ILCS 5/8-901 to 8-909. The Statute did not alter the then current protections afforded reporters. The Statute shields the anonymity of sources, whether confidential or nonconfidential. An order divesting the reporter of the privilege is granted only if the court finds that “all other available sources of information have been exhausted and disclosure of the information is essential to the protection of the public interest involved.” 735 ILCS 5/8-907.
The Illinois legislature subsequently amended the reporter’s privilege on September 16, 1985, by extending the application of the Statute to libel and slander cases, and by specifying requirements for seeking disclosure in such cases.
The Statute provides as follows:
Sec. 8-901. Source of Information. No court may compel any person to disclose the source of any information obtained by a reporter except as provided in Part 9 of Article VIII of this Act [735 ILCS 5/8-901 et seq.].
Sec. 8-902. Definitions. As used in this Act:
(a) “reporter” means any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full-time or part-time basis; and includes any person who was a reporter at the time the information sought was procured or obtained.
(b) “news medium” means any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation; a news service whether in print or electronic format; a radio station; a television station; a television network; a community antenna television service; and any person or corporation engaged in the making of news reels or other motion picture news for public showing.
(c) “source” means the person or means from or through which the news or information was obtained.
Sec. 8-903. Application to court.
(a) In any case, except a libel or slander case, where a person claims the privilege conferred by Part 9 of Article VIII of this Act, the person or party, body or officer seeking the information so privileged may apply in writing to the circuit court serving the county where the hearing, action or proceeding in which the information is sought for an order divesting the person named therein of such privilege and ordering him or her to disclose his or her source of the information.
(b) In libel or slander cases where a person claims the privilege conferred by Part 9 of Article VIII of this Act, the plaintiff may apply in writing to the court for an order divesting the person named therein of such privilege and ordering him or her to disclose his or her source of information.
Sec. 8-904. Contents of application. The application provided in Section 8-903 of this Act shall allege: the name of the reporter and of the news medium with which he or she was connected at the time the information sought was obtained; the specific information sought and its relevancy to the proceedings; and, either, a specific public interest which would be adversely affected if the factual information sought were not disclosed, or, in libel or slander cases, the necessity of disclosure of the information sought to the proof of plaintiff’s case. Additionally, in libel or slander cases, the plaintiff must include in the application provided in Section 8-903 a prima facie showing of falsity of the alleged defamation and actual harm or injury due to the alleged defamation.
Sec. 8-905. Civil Proceeding. All proceedings in connection with obtaining an adjudication upon the application not otherwise provided in Part 9 of Article VIII of this Act shall be as in other civil cases.
Sec. 8-906. Consideration by court. In granting or denying divestiture of the privilege provided in Part 9 of Article VIII of this Act the court shall have due regard to the nature of the proceedings, the merits of the claim or defense, the adequacy of the remedy otherwise available, if any, the relevancy of the source, and the possibility of establishing by other means that which it is alleged the source requested will tend to prove.
Sec. 8-907. Court’s findings. An order granting divestiture of the privilege provided in Part 9 of Article VIII of this Act shall be granted only if the court, after hearing the parties, finds:
(1) that the information sought does not concern matters, or details in any proceeding, required to be kept secret under the laws of this State or of the Federal government; and
(2) that all other available sources of information have been exhausted and, either, disclosure of the information sought is essential to the protection of the public interest involved or, in libel or slander cases, the plaintiff’s need for disclosure of the information sought outweighs the public interest in protecting the confidentiality of sources of information used by a reporter as part of the news gathering process under the particular facts and circumstances of each particular case.
If the court enters an order divesting the person of the privilege granted in Part 9 of Article VIII of this Act it shall also order the person to disclose the information it has determined should be disclosed, subject to any protective conditions as the court may deem necessary or appropriate.
Sec. 8-908. Privilege continues during pendency of appeal. In case of an appeal the privilege conferred by Part 9 of Article VIII of this Act remains in full force and effect during the pendency of such appeal.
Sec. 8-909. Contempt. A person refusing to testify or otherwise comply with the order to disclose the source of the information as specified in such order, after such order becomes final, may be adjudged in contempt of court and punished accordingly.
Indiana’s shield law provides an absolute privilege regarding state matters and reads as follows:
§ 34-46-4-1 Applicability of chapter:
Sec. 1. This chapter applies to the following persons:
(1) any person connected with, or any person who has been connected with or employed by:
(A) a newspaper or other periodical issued at regular intervals and having a general circulation; or
(B) a recognized press association or wire service;
as a bona fide owner, editorial or reportorial employee, who receives or has received income from legitimate gathering, writing, editing and interpretation of news; and
(2) any person connected with a licensed radio or television station as owner, official, or as an editorial or reportorial employee who receives or has received income from legitimate gathering, writing, editing, interpreting, announcing or broadcasting of news.
§34-46-4-2 Privilege against disclosure of source of information:
Sec. 2. A person described in section 1 of this chapter shall not be compelled to disclose in any legal proceedings or elsewhere the source of any information procured or obtained in the course of the person's employment or representation of a newspaper, periodical, press association, radio station, television station, or wire service, whether:
(1) published or not published:
(A) in the newspaper or periodical; or
(B) by the press association or wire service; or
(2) broadcast or not broadcast by the radio station or television station;
by which the person is employed.
Ind. Code §§ 34-46-4-1, 34-46-4-2. Indiana’s shield law has been around since 1941. The law was originally codified as Indiana Code § 34-3-5-1. It was recodified into the two separate sections quoted above in 1998. The last significant change to the shield law was in 1973, when the legislature broadened its description of persons to whom the privilege applies.
In discussing the legislature’s reasons for protecting the press through a shield law, the Indiana Court of Appeals has said that "the legislature, in balancing the conflicting interests of the alleged defamed public figure and the press, simply concluded that the journalist’s privilege should prevail." Jamerson v. Anderson Newspapers, Inc., 469 N.E.2d 1243, 1247 (Ind. App. 1984).
Iowa has not adopted a shield law statute. News organizations that would participate in drafting and supporting such legislation include the Iowa Freedom of Information Council, the Iowa Newspaper Association, the Iowa Broadcasters Association, and the Iowa Broadcast News Association. The courts’ strong protections for reporters likely contributes to the lack of significant and concentrated effort toward adoption of a shield statute. These organizations are mindful that a statutory shield may be needed in light of federal case law threatening the scope of the reporter’s privilege.
K.S.A. 60-480, et seq. 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.”
The reporter’s shield law in Kentucky is codified at KRS 421.100. The statute states:
No person shall be compelled to disclose in any legal proceeding or trial before any court, or before any grand or petit jury, or before the presiding officer of any tribunal, or his agent or agents, or before the General Assembly, or any committee thereof, or before any city or county legislative body, or any committee thereof, or elsewhere, the source of any information procured or obtained by him, and published in a newspaper or by a radio or television broadcasting station by which he is engaged or employed, or with which he is connected.
The statute originally dealt with newspaper reporters, but it was amended in 1952 to add radio and television stations to the list of protected media. Despite the statute’s longevity, very few Kentucky appellate cases have addressed the statute.
Louisiana has enacted two shield laws. The first statute dates from 1964 and protects reporters from being forced to disclose their sources. La. R.S. 45:1451-1454. "No reporter shall be compelled to disclose in any administrative, judicial or legislative proceeding or anywhere else the identity of any informant or any source of information obtained by him from another person while acting as a reporter." La. R.S. 45:1452. Reporter is defined broadly as "any person regularly engaged in the business of collecting, writing or editing news for publication through a news media." La. R.S. 45:1451.
Once the reporter claims the privilege, the party seeking the information may seek a judicial order to revoke the privilege by setting forth in writing why disclosure is essential to the "protection of the public interest." After a hearing with both the party seeking the order and the reporter, the court may only grant such an order if "the disclosure is essential to the public interest." La. R.S. 45:1453.
The second statute, enacted in 1989, provides protections for reporters refusing to disclose unpublished information. La. R.S. 45:1459. The party seeking the information must make a "clear and specific showing" that the news is (1) highly material and relevant; (2) critical or necessary to the maintenance of the party's claim, defense or proof of an issue material thereto; and (3) not obtainable from any alternative source. La. R.S. 45:1459.
No reported Louisiana state appellate case has ordered a reporter to disclose information under the state shield laws. See In re Grand Jury Proceedings (Ronald Ridenhour), 520 So. 2d 372 (La. 1988); In re Burns, 484 So.2d 658 (La. 1986); Becnel v. Lucia, 420 So.2d 1172 (La. App. 5th Cir. 1982).
The intent of the shield law is to "encourage divulgence of news by informants who might otherwise hesitate to disclose matters of public import for fear of unfavorable publicity or the possibility of retribution." Dumez v. Houma Municipal Fire and Police Civil Service Bd., 341 So.2d 1206, 1208 (La. App. 1st Cir. 1976).
The confidential source shield law, La. R.S. 45:1451 - 1454, was created by Act 211 of 1964; the subpoena rules, La. R.S. 45:1455 - 1458 were created by Act 803 of 1987; the non-confidential privilege, La. R.S. 45:1459, was created by Act 705 of 1989.
The Louisiana Press Association was a major proponent of the state shield law.
Maine's shield law, 16 M.R.S.A. § 61, provides a qualified privilege against compelled disclosure of confidential sources of information, information that identifies confidential sources, and confidential information obtained from a source. The statute does not include any protection for non-confidential information.
Although the issue has been brought before the legislature, as of the time of this writing, Massachusetts does not have an express shield statute.
In 1985, the Supreme Judicial Court dismissed a petition by the Governor's Press Shield Law Task Force for the adoption of rules establishing a qualified privilege protecting newsgatherers from compelled disclosure of confidential sources and unpublished information. See Petition for the Promulgation of Rules, 479 N.E.2d 154 (Mass. 1985). The court asserted that a common law approach to this area of law would be better than rulemaking by the court. Id. The court's decision not to adopt privilege rules was motivated in part by the fact that the various media entities petitioning for a privilege could not agree on the exact contours of such a proposed privilege. Id.
Michigan has two statutory provisions or shield laws which limit the use of subpoenas on journalists. One is for Grand Jury proceedings MCL 767.5a and the other is with respect to subpoenas issued by Prosecutors under MCL 767A.6.
The Grand Jury statute provides as follows:
"a reporter or other person who is involved in the gathering or preparation of news for broadcast or publication shall not be required to disclose the identity of an informant, any unpublished information obtained from an informant, or any unpublished matter or documentation, in whatever manner recorded, relating to a communication with an informant, in any inquiry authorized by this act, except an inquiry for a crime punishable by imprisonment for life when it has been established that the information which is sought is essential to the purpose of the proceeding and that other available sources of the information have been exhausted." MCL 767.5a.
Prosecutors may apply to a Circuit Court Judge for a subpoena in order to compel testimony of witnesses to investigations of criminal conduct. That statute likewise provides a privilege to reporters. It provides:
"A reporter or other person who is involved in the gathering or preparation of news for broadcast or publication is not required to disclose the identity of an informant, any unpublished information obtained from an informant, or any unpublished matter or documentation, in whatever manner recorded, relating to a communication with an informant, in any inquiry conducted under this chapter. A reporter or other person who is involved in the gathering or preparation of news for broadcast or publication is subject to an inquiry under this chapter only under the following circumstances:
(a) to obtain information that has been disseminated to the public by media broadcast or print publication.
(b) If the reporter or other person is the subject of the inquiry." MCL 767A.6(6).
Like many other states, Minnesota reacted to the U.S. Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665 (1972), by enacting a shield statute. Early proponents of the legislation included John Finnegan (editor of the St. Paul Pioneer Press, chair of the Freedom of Information Committee of the Associated Press Managing Editors Association, and a founding member of the Minnesota Joint Media Committee), Don Gillmor (Silha Professor of Media Ethics and Law, University of Minnesota), and Peter Popovich (at the time an attorney in private practice representing the St. Paul Pioneer Press and other organizations, who later served as the first chief judge of the Minnesota Court of Appeals and as chief justice of the Minnesota Supreme Court). For more than twenty years, the statute was regarded as one of the strongest in the country in terms of protecting journalists, and was applied by the state's district courts to protect unpublished information in all forms, as well as to protect confidential sources. See N. Mate, Piercing the Shield: Reporter Privilege in Minnesota Following State v. Turner, 82 Minn. L. Rev. 1563, 1564, 1591ñ95 (1998).
That changed for a few years in the mid-1990s. In 1994, the Minnesota Court of Appeals narrowly read the statutory language as protecting only confidential sources and unpublished information "which would tend to identify the person or means through which the information was obtained." Heaslip v. Freeman, 511 N.W.2d 21, 23 (Minn. App. 1994). Under this interpretation, the court held that the statute did not protect unpublished photographs of an automobile accident that one party was seeking from a newspaper (the newspaper was not a party to this civil lawsuit). The court acknowledged that its interpretation of the statute was "finely tuned." 511 N.W.2d at 23. Despite this setback under the statute, reporters continued to receive protection under other legal bases. See, e.g., State v. Ross, 22 Media L. Rep. 2509 (Ramsey Cty., Minn., Dist. Ct. 1994) (undue burden).
The court of appeals followed its narrow view of the shield law--and extended its result to a narrow view of the First Amendment privilege--in a criminal prosecution growing out of an assault during a college campus rally. State v. Knutson, 523 N.W.2d 909 (Minn. App. 1994) (holding that reporter who witnessed assault could be compelled to testify); State v. Knutson, 539 N.W.2d 254 (Minn. App. 1996) (refusing protection to unpublished photographs of the rally if no confidential source would be disclosed).
The Minnesota Supreme Court further eroded any reporter’s privilege for unpublished information in State v. Turner, 550 N.W.2d 622 (Minn. 1996). The case arose after police charged Steven Allen Turner with felony possession of three bags of crack cocaine that they found when they searched him after he tried to evade them in his car. A newspaper photographer had been riding with the police as part of a study on crime in the community, and took pictures of the arrest. Turner wanted evidence from the photographer as "the only neutral disinterested eyewitness." The lower courts held that the photographer did not have to provide information after Turner subpoenaed him, but the supreme court reversed. The supreme court interpreted Branzburg as declaring "that no qualified constitutional privilege exists under the First Amendment that would protect reporters from compelled testimony in a criminal case." Turner, 550 N.W.2d at 628. It stated that the Minnesota shield law "was clearly intended to protect the confidential relationship which exists between a reporter and his or her sources of information," 550 N.W.2d at 631, and "rejected the argument that the Act applies to reporters who personally witness crimes, and to unpublished, nonconfidential information possessed by a newspaper," 550 N.W.2d at 630. However, it held that district courts should review unpublished material in camera to be sure that it was relevant to the case before compelling its disclosure to parties in the case. 550 N.W.2d at 629.
Media organizations and their attorneys viewed Turner as poor policy and a misreading of the statute, and lobbied for corrective legislation, which became law on April 6, 1998. The amendments added the words "whether or not it" after the words "other reportorial data" and before "would tend to identify the person or means" in the section prohibiting disclosure of information. It also modified the situations in which courts could order disclosure of unpublished information, requiring a showing that "the specific information sought" was clearly relevant to a felony or gross misdemeanor, or clearly relevant to a misdemeanor if the information sought would not reveal a confidential source or means of information. The prior law had allowed disclosure only in situations where the information sought was "clearly relevant to a specific violation of the law other than a misdemeanor."
The Minnesota Newspaper Association, the Minnesota Broadcasters Association, and the Minnesota Society of Professional Journalists strongly supported the bill. Rick Kupchella, then president of Minnesota SPJ, and media attorneys Mark Anfinson, John Borger, and Lucy Dalglish testified in favor of the bill. During one committee hearing, State Senator Allen Spear commented that he had pushed for the original law in 1973 intending that it protect all unpublished information in addition to the identity of confidential sources. The legislation passed by wide margins in both the Senate and the House of Representatives. Although the governor objected to the new legislation and issued a public statement explaining his reasons for refusing to sign it, he allowed it to become law without his signature.
The U.S. District Court for the District of Minnesota apparently overlooked the 1998 amendments when it stated that the shield law "simply does not apply" to information that does not involve a confidential relationship. Berglund v. City of Maplewood, 173 F.Supp.2d 935, 950 (D. Minn. 2001), aff'd sub nom. Zick v. City of Maplewood, 50 Fed. App'x 805, 806 (8th Cir. 2002) (unpublished). Similarly, attorneys representing parties seeking reportorial data sometimes rely upon Heaslip, Knutson, or Turner, overlooking the later changes to the statute that render those cases obsolete. See, e.g., In re Mahtani, No. 27-CV-17-11589, 45 Med. L. Rptr. 2408, 2412 (Minn. Dist. Ct., Hennepin Cty., Sept. 25, 2017).
In 2003, the Minnesota Supreme Court interpreted the defamation exception to the shield statute, holding that a nonparty reporter had to disclose which defendants named in a libel action were confidential sources for an article he wrote about a high school football coach. Weinberger v. Maplewood Rev., 668 N.W.2d 667 (Minn. 2003). The court found that the coach had satisfied the exception's three requirements: (1) that disclosure of the source's identity would lead to relevant evidence on the issue of actual malice, (2) that there was probable cause to believe that the source had information clearly relevant to the issue of defamation, and (3) that the information could not be obtained by alternative means. 668 N.W.2d at 672ñ73. The court stressed that the test of relevance is whether evidence has "any tendency" to make a consequential fact more or less probable. 668 N.W.2d at 673. Therefore, where
the plaintiff has alleged that the defendant is the source of the allegedly defamatory statements, relevant evidence constitutes not only evidence on the source's knowledge, but also the source's identity. . . . [W]hen the identity of the speaker is hidden under the cloak of anonymity . . . it is self-evident that the identity of the speaker will lead to relevant evidence on the issue of actual malice.
668 N.W.2d at 673ñ74. The court further held that the probable cause requirement was satisfied because the district court's narrow order only required disclosure of those sources named as defendants, thereby ensuring that disclosure would lead to relevant information. 668 N.W.2d at 674. Even after this decision, the reporter refused to disclose his sources. The district court imposed financial sanctions for that refusal; local journalists contributed to a defense fund to pay those sanctions. The parties to the lawsuit settled, and the reporter was released from the disclosure order without ever revealing his sources.
In 2006, a Blue Earth County judge held that a newspaper reporter had to disclose unpublished information obtained from a telephone interview with a suicidal man during a police standoff (the man ultimately killed himself). Order Re: MS 595.024 MN Free Flow of Information Act, In re Death Investigation of Jeffrey Alan Skjervold, No. CV 07 168, Blue Earth Cty., Minn., Dist. Ct., dated Feb. 13, 2007. Because the man held his wife hostage and shot at least two police officers, the court found that that he had committed felony violations and that there was "no doubt" that information obtained by the reporter "would be clearly relevant to such crimes." In so holding, it rejected the newspaper's argument that the exception only applies where a defendant faces actual prosecution. Because the man killed himself, the court held that the information could not be obtained through alternative means. Finally, the district court held that there was a compelling and overriding interest requiring disclosure, stating, "[t]he right claimed by the [newspaper] to seek the 'truth' must never be allowed to take precedent over the compelling and overriding interest of law enforcement authority to maintain human life." The Court of Appeals reversed, holding that the county attorney had not established the third factor: “Essentially, the county attorney argues that it needs to conduct discovery to find an injustice, but declines to connect the discovery to a particular injustice. We conclude that the statute requires that the particular injustice be identified.” In re Death Investigation of Skjervold, 742 N.W.2d 686, 690 (Minn. App. 2008).
In construing the defamation-action exception to the statutory privilege after the 1998 amendments, the Minnesota Court of Appeals held that the exception applied to the privilege regarding the identity of a source, but not to the privilege for unpublished materials. Ducklow v. KSTP-TV, LLC, 42 Med. L. Rep. 1431, 1434 (Minn. App. March 3, 2014) (unpublished); see also In re Mahtani, No. 27-CV-17-11589, 45 Med. L. Rptr. 2408, 2412-13 (Minn. Dist. Ct., Hennepin Cty., Sept. 25, 2017) (finding Ducklow persuasive, although unpublished decisions of the Minnesota Court of Appeals are not binding precedent).
In Range Development Co. of Chisholm v. Star Tribune, 885 N.W.2d 500 (Minn. App. 2016), plaintiff sought to compel disclosure of the identity of a confidential source who had provided a reporter with a copy of a government document from which the reporter wrote an article. The Court of Appeals reversed a district court order compelling disclosure. In a defamation action, the appellate court held §595.025 “requires an affirmative showing, with concrete evidence, that disclosure of the source will lead to persuasive evidence on the elements of a defamation claim. District courts, when conducting this analysis, must necessarily review the merits of the defamation claim, but will not . . . impose a prima-facie-case requirement.” Id. at 505; see also id. at 511 (“the act puts the burden on [plaintiff], not [the reporter] to demonstrate that the source has relevant information and to establish probable cause that this information is clearly relevant to falsity or actual malice. . . . While this demonstration need not rise to the level of establishing a prima facie case, it does require an affirmative showing. And the burden of that showing falls on [plaintiff], not [the reporter].”); id. at 509 (“when examining whether a party has affirmatively shown that disclosure of the source will lead to persuasive evidence, we conclude that a district court should objectively assess the proffered evidence.”).
Conjecture that the reporter might have discussed something of substance with the source beyond mere receipt of the government report would not suffice. Id. at 510-12. The appellate court held that the district court erred by ordering disclosure, and explained:
[Plaintiff] has not made the affirmative showing required to merit an exception to the act's general rule that a court may not require a reporter to disclose confidential sources. See Minn.Stat. § 595.023 (2014) (stating that general rule). It has neither demonstrated that the source's identity will lead to relevant evidence nor established probable cause that the source has information clearly relevant to the issues of defamation. Both showings require concrete evidence that discovery of the source will lead to persuasive evidence. And while [the reporter] may have embellished the report in this article, because there has been no showing that the source supplied him with information other than the report, there has been no demonstration that learning the source's identity would lead to persuasive evidence on the issues of falsity or malice.
Id. at 511-12.
Text of statute
Following its most recent amendments in 1998, the Minnesota Free Flow of Information Act provides:
595.021 News media; protection of sources; citation.
Sections 595.021 to 595.025 may be cited as the "Minnesota free flow of information act."
595.022 Public policy.
In order to protect the public interest and the free flow of information, the news media should have the benefit of a substantial privilege not to reveal sources of information or to disclose unpublished information. To this end, the freedom of press requires protection of the confidential relationship between the news gatherer and the source of information. The purpose of sections 595.021 to 595.025 is to insure and perpetuate, consistent with the public interest, the confidential relationship between the news media and its sources.
595.023 Disclosure prohibited.
Except as provided in section 595.024, no person who is or has been directly engaged in the gathering, procuring, compiling, editing, or publishing of information for the purpose of transmission, dissemination or publication to the public shall be required by any court, grand jury, agency, department or branch of the state, or any of its political subdivisions or other public body, or by either house of the legislature or any committee, officer, member, or employee thereof, to disclose in any proceeding the person or means from or through which information was obtained, or to disclose any unpublished information procured by the person in the course of work or any of the person's notes, memoranda, recording tapes, film or other reportorial data whether or not it would tend to identify the person or means through which the information was obtained.
595.024 Exception and procedure.
Subdivision 1. Disclosure; application. A person seeking disclosure may apply to the district court of the county where the person employed by or associated with a news media resides, has a principal place of business or where the proceeding in which the information sought is pending.
Subd. 2. Disclosure allowed; conditions. The application shall be granted only if the court determines after hearing the parties that the person making application, by clear and convincing evidence, has met all three of the following conditions:
(1) that there is probable cause to believe that the specific information sought (i) is clearly relevant to a gross misdemeanor or felony, or (ii) is clearly relevant to a misdemeanor so long as the information would not tend to identify the source of the information or the means through which it was obtained,
(2) that the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights, and
(3) that there is a compelling and overriding interest requiring the disclosure of the information where the disclosure is necessary to prevent injustice.
Subd. 3. Determination; appeal. The district court shall consider the nature of the proceedings, the merits of the claims and defenses, the adequacies of alternative remedies, the relevancy of the information sought, and the possibility of establishing by other means that which the source is expected or may tend to prove. The court shall make its appropriate order after making findings of fact. The order may be appealed directly to the court of appeals according to the rules of appellate procedure. The order is stayed and nondisclosure shall remain in full force and effect during the pendency of the appeal. Where the court finds that the information sought has been published or broadcast, there shall be no automatic stay unless an appeal is filed within two days after the order is issued. Either party may request expedited consideration.
Subdivision 1. Disclosure prohibition; applicability. The prohibition of disclosure provided in section 595.023 shall not apply in any defamation action where the person seeking disclosure can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice.
Subd. 2. Disclosure conditions. Notwithstanding the provisions of subdivision 1, the identity of the source of information shall not be ordered disclosed unless the following conditions are met:
(a) that there is probable cause to believe that the source has information clearly relevant to the issue of defamation;
(b) that the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights.
Subd. 3. Determination; appeal. The court shall make its order on the issue of disclosure after making findings of fact, which order may be appealed to the court of appeals according to the rules of appellate procedure. During the appeal the order is stayed and nondisclosure shall remain in full force and effect.
Montana's law is entitled the "Media Confidentiality Act" and presently reads as follows:
26-1-902. Extent of privilege. (1) Without a person’s consent, a person, including any newspaper, magazine, press association, news agency, news service, radio station, television station, or community antenna television service or any person connected with or employed by any of these for the purpose of gathering, writing, editing, or disseminating news, may not be examined as to or may not be required to disclose any information obtained or prepared or the source of that information in any legal proceeding if the information was gathered, received, or processed in the course of the person’s employment or business.
(2) A person described in subsection (1) or an electronic communication service used by that person may not be adjudged in contempt by a judicial, legislative, administrative, or any other body having the power to issue subpoenas for refusing to disclose or produce the source of any information or for refusing to disclose any information obtained or prepared in gathering, receiving, or processing information in the course of the person’s business.
(3) A judicial, legislative, administrative, or other governmental body may not request or require the disclosure of information otherwise protected under subsection (1) from an electronic communication service.
(4) For the purposes of this section, “electronic communication service” means a service used to send, receive, transmit, store, or facilitate electronic communications.
26-1-903. Waiver of privilege. (1) Except as provided in subsection (2), dissemination in whole or in part does not constitute a waiver of provisions of 26-1-902.
(2) If the person claiming the privilege testifies, with or without having been subpoenaed or ordered to testify or produce the source, before a judicial, legislative, administrative, or other body having the power to issue subpoenas or judicially enforceable orders, the person does not waive the provisions of 26-1-902 unless the person voluntarily agrees to waive the privilege or voluntarily discloses the source in the course of the person’s testimony. Except as provided in this subsection, the provisions of 26-1-902 may not be waived.
The predecessor of this law was first enacted in 1943 as the "Reporters Confidence Act." It protected from disclosure only the sources of information. The privilege was granted to persons identified in a list of categories similar to that of the present law. In 1951 this list was expanded to include radio and television news.
In the Adams case, supra, a reporter was ordered to produce for in camera inspection by a judge a letter that had been written to him by a criminal defendant, and of which the reporter had published portions. Following that case, the law was amended to protect information as well as sources, and to make waiver more difficult. Organizations that appeared before the legislature to support those changes included the Montana Press Association, the Montana Broadcasters Association, and some newspapers.
In 1979 the law was broadened again by liberalizing when persons were protected by it. The waiver language was also adjusted.
In 1987 the Court decided the Sible case, supra. Part of its holding in this defamation action was that when the reporter testified, he waived his privilege to keep his notes confidential. The legislature then in 1989 amended the law to its present form, which prevents waiver by journalism except as a voluntary choice.
The law was most recently amended in 2015 to extend the source protection privilege to third-party communications service providers that hold electronic records. The amendment was a proactive and unique measure meant to prevent the government from demanding privileged news media such as emails and other communications from entities where the communications are stored, such as Google, Yahoo, Outlook, or Facebook.
Nebraska's shield law, Neb. Rev. Stat. §§ 20-144 through 147 (Reissue 2012), provides:
(d) FREE FLOW OF INFORMATION ACT
20-144. Finding by Legislature. The Legislature finds:
(1) That the policy of the State of Nebraska is to insure the free flow of news and other information to the public, and that those who gather, write, or edit information for the public or disseminate information to the public may perform these vital functions only in a free and unfettered atmosphere;
(2) That such persons shall not be inhibited, directly or indirectly, by governmental restraint or sanction imposed by governmental process, but rather that they shall be encouraged to gather, write, edit, or disseminate news or other information vigorously so that the public may be fully informed;
(3) That compelling such persons to disclose a source of information or disclose unpublished information is contrary to the public interest and inhibits the free flow of information to the public;
(4) That there is an urgent need to provide effective measures to halt and prevent this inhibition;
(5) That the obstruction of the free flow of information through any medium of communication to the public affects interstate commerce; and
(6) That sections 20-144 to 20-147 are necessary to insure the free flow of information and to implement the first and fourteenth amendments and Article I, section 5, of the United States Constitution, and the Nebraska Constitution.
20-145. Terms, defined. For purposes of the Free Flow of Information Act, unless the context otherwise requires:
(1) Federal or state proceeding shall include any proceeding or investigation before or by any federal or state judicial, legislative, executive, or administrative body;
(2) Medium of communication shall include, but not be limited to, any newspaper, magazine, other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system;
(3) Information shall include any written, audio, oral, or pictorial news or other material;
(4) Published or broadcast information shall mean any information disseminated to the public by the person from whom disclosure is sought;
(5) Unpublished or nonbroadcast information shall include information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and shall include, but not be limited to, all notes, outtakes, photographs, film, tapes, or other date of whatever sort not itself disseminated to the public through a medium of communication, whether or not published or broadcast information based upon or related to such material has been disseminated.
(6) Processing shall include compiling, storing, transferring, handling, and editing of information; and
(7) Person shall mean any individual, partnership, limited liability company, corporation, association, or other legal entity existing under or authorized by the law of the United States, any state or possession of the United States, the District of Columbia, the Commonwealth of Puerto Rico, or any foreign country.
20-146. Procuring, gathering, writing, editing, or disseminating news or other information; not required to disclose to courts or public. No person engaged in procuring, gathering, writing, editing, or disseminating news or other information to the public shall be required to disclose in any federal or state proceeding:
(1) The source of any published or unpublished, broadcast or nonbroadcast information obtained in the gathering, receiving, or processing of information for any medium of communication to the public;
(2) Any published or nonbroadcast information obtained or prepared in gathering, receiving, or processing of information for any medium of communication to the public.
20-147. Act, how cited. Sections 20-144 to 20-147 shall be known and may be cited as the Free Flow of Information Act.
Nevada’s news shield law is located at NRS 49.275:
No reporter, former reporter or editorial employee of any newspaper, periodical or press association or employee of any radio or television station may be required to disclose any published or unpublished information obtained or prepared by such person in such person's professional capacity in gathering, receiving or processing information for communication to the public, or the source of any information procured or obtained by such person, in any legal proceedings, trial or investigation:
1. Before any court, grand jury, coroner's inquest, jury or any officer thereof.
2. Before the legislature or any committee thereof.
3. Before any department, agency or commission of the state.
4. Before any local governing body or committee thereof, or any officer of a local government.
The Legislative history of this statute was explained in Las Vegas Sun v. Eighth Judicial District Court, 104 Nev. 508, 511-12, 761 P.2d 849, 851-52 (1988), overruled on other grounds, Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50 (2000):
The legislative history behind the current shield law illustrates the legislators' concern with protecting confidentiality during and after the news gathering process. The legislature enacted the first shield law in 1969. It protected news media representatives from forced disclosure of their sources. Members of the press argued that confidential sources had to be protected from exposure to insure the free flow of information, particularly information about government corruption or mismanagement. The public, they claimed, had a right to know about such occurrences, but if sources were afraid to talk to reporters, the public's access to this valuable information would be severely restricted. Supporters of the legislation argued that if reporters could promise sources that their identities would not be revealed, sources would be more likely to give reporters information, and this would benefit the public.
The shield law was extended in 1975 to provide for former newsmen and for unpublished information . . . . The underlying rationale was the same as in 1969: serve the public interest by protecting reporters in their news gathering efforts.
(internal citations omitted).
NRS 49.385 provides for a waiver of certain statutory privileges by voluntary disclosure of confidential matters:
1. A person upon whom these rules confer a privilege against disclosure of a confidential matter waives the privilege if he or his predecessor while holder of the privilege voluntarily discloses or consents to disclosure of any significant part of the matter.
2. This section does not apply if the disclosure is:
(a) Itself a privileged communication; or
(b) Made to an interpreter employed merely to facilitate communications.
This statute does not apply, however, to the news shield law because the statute concerns confidential communications and the shield law in NRS 49.275 protects both published and unpublished materials. Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50 (2000). In distinguishing the shield law from other types of confidential communications that are waivable, the Nevada Supreme Court found that confidentiality is not the defining factor in whether the shield law exists, nor does confidentiality play a role in determining whether a reporter has waived the privilege. Rather, the news shield statute is distinguishable because it protects all information, not just confidential information, which is obtained by a reporter in his or her capacity as a journalist and which is intended for dissemination. Id. at 100, 58.
(a) N.J.S.A. 2A:84A-21 provides:
Subject to Rule 37 [N.J.R.E. 530], a person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated has a privilege to refuse to disclose, in any legal or quasi-legal proceeding or before any investigative body, including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative committee, or elsewhere:
a. The source, author, means, agency or person from or through whom any information was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated, or delivered; and
b. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated.
The provisions of this rule insofar as it relates to radio or television stations shall not apply unless the radio or television station maintains and keeps open for inspection, for a period of at least 1 year from the date of an actual broadcast or telecast, an exact recording, transcription, kinescopic film or certified written transcript of the actual broadcast or telecast.
(b) N.J.S.A. 2A:84A-21a provides:
Unless a different meaning clearly appears from the context of this act, as used in this act:
a. "News media" means newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public.
b. "News" means any written, oral or pictorial information gathered, procured, transmitted, compiled, edited or disseminated by, or on behalf of any person engaged in, engaged on, connected with or employed by a news media and so procured or obtained while such required relationship is in effect.
c. "Newspaper" means a paper that is printed and distributed ordinarily not less frequently than once a week and that contains news, articles of opinion, editorials, features, advertising, or other matter regarded as of current interest, has a paid circulation and has been entered at a United States post office as second class matter.
d. "Magazine" means a publication containing news which is published and distributed periodically, has a paid circulation and has been entered at a United States post office as second class matter.
e. "News agency" means a commercial organization that collects and supplies news to subscribing newspapers, magazines, periodicals and news broadcasters.
f. "Press association" means an association of newspapers or magazines formed to gather and distribute news to its members.
g. "Wire service" means a news agency that sends out syndicated news copy by wire to subscribing newspapers, magazines, periodicals or news broadcasters.
h. "In the course of pursuing his professional activities" means any situation, including a social gathering, in which a reporter obtains information for the purpose of disseminating it to the public, but does not include any situation in which a reporter intentionally conceals from the source the fact that he is a reporter, and does not include any situation in which a reporter is an eyewitness to, or participant in, any act involving physical violence or property damage.
(c) N.J.S.A. 2A:84A-21.1 provides:
Where a newsperson is required to disclose information pursuant to a subpoena issued by or on behalf of a defendant in a criminal proceeding, not including proceedings before administrative or investigative bodies, grand juries, or legislative committees or commissions, the provisions and procedures in this act are applicable to the claim and exercise of the newsperson's privilege under Rule 27 (C. 2A:84A-21).
(d) N.J.S.A. 2A:84A-21.2 provides:
Proceedings pursuant to this act shall take place before the trial, except that the court may allow a motion to institute proceedings pursuant to this act to be made during trial if the court determines that the evidence sought is newly discovered and could not have been discovered earlier through the exercise of due diligence.
(e) N.J.S.A. 2A:84A-21.3 provides:
a. To sustain a claim of the newsperson's privilege under Rule 27 [Rule 508(a) ] the claimant shall make a prima facie showing that he is engaged in, connected with or employed by a news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated, and that the subpoenaed materials were obtained in the course of pursuing his professional activities.
b. To overcome a finding by the court that the claimant has made a prima facie showing under a. above, the party seeking enforcement of the subpoena shall show by clear and convincing evidence that the privilege has been waived under Rule 37 [Rule 530] (C. 2A:84A-29) or by a preponderance of the evidence that there is a reasonable probability that the subpoenaed materials are relevant, material and necessary to the defense, that they could not be secured from any less intrusive source, that the value of the material sought as it bears upon the issue of guilt or innocence outweighs the privilege against disclosure, and that the request is not overbroad, oppressive, or unreasonably burdensome which may be overcome by evidence that all or part of the information sought is irrelevant, immaterial, unnecessary to the defense, or that it can be secured from another source. Publication shall constitute a waiver only as to the specific material published.
c. The determinations to be made by the court pursuant to this section shall be made only after a hearing in which the party claiming the privilege and the party seeking enforcement of the subpoena shall have a full opportunity to present evidence and argument with respect to each of the materials or items sought to be subpoenaed.
(f) N.J.S.A. 2A:84A-21.4 provides:
Upon a finding by the court that there has been a waiver as to any of the materials sought or that any of the materials sought meet the criteria set forth in subsection 3.b., the court shall order the production of such materials, and such materials only, for in camera inspection and determination as to its probable admissibility in the trial. The party claiming the privilege and the party seeking enforcement of the subpoena shall be entitled to a hearing in connection with the in camera inspection of such materials by the court, during which hearing each party shall have a full opportunity to be heard. If the court, after its in camera review of the materials, determines that such materials are admissible according to the standards set forth in subsection 3.b., the court shall direct production of such materials, and such materials only.
(g) N.J.S.A. 2A:84A-21.5 provides:
After any hearing conducted by the court pursuant to section 3 or 4 hereof, the court shall make specific findings of fact and conclusions of law with respect to its rulings, which findings shall be in writing or set forth on the record.
(h) N.J.S.A. 2A:84A-21.6 provides:
An interlocutory appeal taken from a decision to uphold or quash a subpoena shall act as a stay of all penalties which may have been imposed for failure to comply with the court's order. The record on appeal shall be kept under seal until such time as appeals are exhausted. In the event that all material or any part thereof is found to be privileged, the record as to that privileged material shall remain permanently sealed. Any subpoenaed materials which shall, upon exhaustion and determination of such appeals, be found to be privileged, shall be returned to the party claiming the privilege.
(i) N.J.S.A. 2A:84A-21.7 provides:
Where proceedings are instituted hereunder by one of several co-defendants in a criminal trial, notice shall be provided to all of the co-defendants. Any co-defendant shall have the right to intervene if the co-defendant can demonstrate, pursuant to section 3, that the materials sought by the issuance of the subpoena bear upon his guilt or innocence. Where such intervention is sought by a co-defendant, that co-defendant shall be required, prior to being permitted to participate in any in camera proceeding, to make that showing required of a defendant in section 3.
(j) N.J.S.A. 2A:84A-21.8 provides:
If the court finds no reasonable basis for requesting the information has been shown, costs, including counsel fee, may be assessed against the party seeking enforcement of the subpoena. Where an application for costs or counsel fee is made, the judge shall set forth his reasons for awarding or denying same.
The 1933 statute protected only a source. In 1960 the original act was repealed and the new statute adopted that added an information privilege and retained the source privilege. The statute was again amended in 1977 to:
(1) add a provision that the information was privileged "whether or not disseminated". This was in direct response to an appellate court decision which held that a disclosure of the source and a partial disclosure of the information in a published newspaper article was a total waiver of the privilege, even as to unpublished materials In re Bridge, 120 N.J. Super. 460 (1972); and
(2) broaden the privilege to make it applicable to all media instead of merely print media.
In 1979 the statute was amended again to establish a procedure for a criminal defendant to pierce the privilege and to specifically prohibit the use of search warrants to obtain reporters' materials except in very limited circumstances.
A detailed discussion of the history of the privilege and the expansive shield provided by the privilege was set forth by the New Jersey Supreme Court in In re Schuman, 114 N.J. 14 (1989).
The New Mexico legislature first enacted a reporter’s privilege in 1967. See Act of Mar. 28, 1967, ch. 168, 1967 N.M. Laws 978. The original statute took the form of a declaration of “the public policy of New Mexico.” Id. § 1(A), 1967 N.M. Laws at 978. It created a privilege limited to “source[s] of information.” Id. It made the privilege subject to an exception for disclosures “essential to prevent injustice,” and it instructed courts to “have due regard” for “the nature of the proceeding, the merits of the claim or defense, the adequacy of the remedy otherwise available, the relevancy of the source, and the possibility of establishing by other means that which the source is offered as tending to prove.” Id. It provided that “[a]n order compelling disclosure shall be appealable, and subject to stay.” Id.
In 1973, the legislature repealed the original statute and replaced it with a more elaborate enactment. See Act of Mar. 10, 1973, ch. 31, 1973 N.M. Laws 137. The new and improved statute offered explicit protection from disclosure, instead of merely articulating the state’s “public policy.” It continued to make the privilege subject to suspension when disclosure was “essential to prevent injustice,” but it deleted the laundry list of factors for which the previous statute had directed courts to have “due regard.” And it extended the protection beyond sources of information to the information itself, provided that the information was “unpublished.” The 1973 statute also itemized additional media and additional categories of media representatives who could avail themselves of the privilege. Finally, the new statute required district courts ordering disclosure to “stat[e] the reasons why”; it provided for an “extraordinary” appeal to the supreme court, which would be “heard de novo and within twenty days from date of docketing”; and it made a stay of disclosure automatic upon the taking of an appeal.
Three years later, in Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976), the New Mexico Supreme Court held the statute unconstitutional to the extent that it purported to create “a testimonial privilege in a judicial proceeding.” Id. at 310, 551 P.2d at 1357; see id. at 312, 551 P.2d at 1359. “[U]nder our Constitution,” the court explained, “the Legislature lacks power to prescribe by statute rules of evidence and procedure, this constitutional power is vested exclusively in this court, and statutes purporting to regulate practice and procedure in the courts cannot be binding.” Id. But the court left open the possibility that the statutory privilege might “properly be asserted in a proceeding or investigation before, or by[,] a legislative, executive or administrative body or person.” Id.
The statute remains on the books today as NMSA 1978, § 38-6-7 (1973). Given the supreme court’s decision in Ammerman, as well as its promulgation of a rule of evidence designed to codify the reporter’s privilege in a constitutional manner, see infra pt. II(D), the statute’s current significance is largely historical. But the statute presumably retains most of its effectiveness when a journalist faces a request to divulge confidential sources or information “in a proceeding or investigation before, or by[,] a legislative, executive or administrative body or person.” Ammerman, 89 N.M. at 312, 551 P.2d at 1359. In such situations, the only portion of the statute invalidated by Ammerman is the subsection providing that the supreme court will hear an appeal from an order of disclosure “de novo and within twenty days from date of docketing.” NMSA 1978, § 38-6-7(C) (1973); see Ammerman, 89 N.M. at 312-13, 551 P.2d at 1359-60.
New York’s Shield Law provides absolute protection from forced disclosure of materials received in confidence by a “professional journalist,” including the identity of a source, and qualified protection for unpublished nonconfidential information. N.Y. Civ. Rights § 79-h, available here: https://law.justia.com/codes/new-york/2013/cvr/article-7/79-h.
The bill (L. 1970, c. 615, § 2) containing what became Civil Rights Law § 79-h was signed into law, effective May 12, 1970, by Governor Rockefeller. Several news publishers, broadcasters and other media organizations expressed support for the bill, including the State Reporters Association, the Association of Managing Editors, the New York Society of Newspaper Editors, the American Newspaper Publishers Association, and the Magazine Publishers Association. Columbia Broadcasting System, Inc. (CBS) submitted perhaps the most detailed comments in favor of the bill, which included its amicus brief in In re Caldwell, 311 F. Supp. 358 (N.D. Ca. 1970), a California case decided in April 1970. CBS's amicus brief included affidavits from such luminaries as Walter Cronkite, Mike Wallace, and Dan Rather. At the time, several of the bill's supporters expressed the concern that the bill was not broad enough and that reporters' resource materials, in addition to the identities of confidential sources, should be protected.
While the New York Attorney General, Louis J. Lefkowitz, had no objections to the bill, the New York Civil Liberties Union opposed it, citing its concern that a blanket privilege could "lead to instances in which the reporter, if for no other reason than his own convenience, can defeat a public or private right of access to due process." Governor's Bill Jacket, L 1970, ch. 615, p. 10.
In his memorandum approving the bill, Governor Rockefeller stated:
This "Freedom of Information Bill for Newsman" will make New York State -- the Nation's principal center of news gathering and dissemination -- the only state that clearly protects the public's right to know and the First Amendment rights of all legitimate newspapermen, reporters and television and radio broadcasters.
The bill protects journalists and newscasters from charges of contempt in any proceeding brought under State law for refusing or failing to disclose information or sources of information obtained in the course of gathering news for publication.
Freedom of the press is one of the foundations upon which our form of government is based. A representative democracy, such as ours, cannot exist unless there is a free press both willing and able to keep the public informed of all the news.
The threat to a newsman of being charged with contempt and of being imprisoned for failing to disclose his information or its sources can significantly reduce his ability to gather vital information. That this real and imminent threat has been demonstrated by the statements of several prominent reporters that valuable sources of information have been cut off because of recent attempts by the Federal government to require the disclosure of information obtained by reporters in confidence.
At the present time, fifteen states have enacted legislation extending the testimonial privilege to newsmen. This measure affords a stronger safeguard of the free channels of news communication than most existing legislation, by protecting newsmen from being compelled to disclose the information they gather, as well as the identity of their informants.
Memorandum of Gov. Nelson A. Rockefeller, Governor's Bill Jacket, L 1970, ch. 615, p. 91-92.
As originally enacted in 1970, the Shield Law only protected from disclosure information obtained by a professional journalist "under the cloak of confidentiality," and it only applied to professional journalists employed by traditional media outlets, such as newspapers, magazines and broadcast media. In addition, the original statute made no mention whether grand juries were included among the "other bodies" precluded from using their contempt powers against journalists. In 1975, Civil Rights Law § 79-h was, with the support of the New York Attorney General, the New York Civil Liberties Union (reversing its former position) and others, amended to make clear that the statute prohibited grand juries from seeking to hold reporters in contempt for failing to disclose information obtained in confidence.
The 1981 Amendment
In 1981, the statute was again amended in response to judicial decisions that, in the words of one of the sponsors of the bill containing the amendments, failed "to follow the letter or even the spirit of the existing law." Memorandum of Assemblyman Steven Sanders, Governor's Bill Jacket, L 1981, ch. 468, p. 1 ("Sanders Memorandum"). This was an apparent reference to the decision in People v. LeGrand, 67 A.D.2d 446, 415 N.Y.S.2d 252 (2d Dep't 1979), in which a criminal defendant succeeded in obtaining the notes of an author who was writing an investigative book on a notorious crime family to be published by a subsidiary of Harper & Row, Inc. The LeGrand court reasoned that the Shield Law did not extend to "authors," despite the fact that the writer in question previously worked for national and local broadcasters and had written, produced and directed numerous documentary films and news broadcasts. Id. at 448. See Sanders Memorandum at 2 ("But the highly absurd situation of Mr. Smith who writes news stories for the New York Times being covered while that same Mr. Smith six months later leaving the Times and beginning work on an investigative book of non-fiction intended for sale to a Harper & Row is not covered, is corrected in this bill. Thus the new bill will protect the journalistic process wherever that process is being professionally undertaken.")
The purpose of the amendment was to fill the "gaps and loopholes not perceived and not intended in the original legislation, such inadequacies that have allowed the courts to pierce the Shield Law time after time, leaving it in a state of legal impotency, with defense attorneys engaging in frequent and increasingly popular fishing expeditions for reporters' notes, and with judges becoming ever more creative in finding limitless reasons to violate the statute and ignore the intent of the Legislature in its 1970 adoption of 79-h." Sanders Memorandum at 1. This amendment to the Shield Law, however, was not without its detractors. Despite some opposition, the bill was passed and signed into law.
The 1981 amendment broadened the definitions of the terms "news" and "professional journalist" in the statute, so that all persons "professionally engaged in a journalistic capacity" could claim its protection, including freelance journalists. Sanders Memorandum at 2. Accordingly, as of 1981, the Shield Law protects traditional, mainstream journalists and media entities, as well as those working for any "other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public." Civ. Rights § 79-h(a)(6), (b), (c).
The 1990 Amendment
In 1988, the New York Court of Appeals recognized a constitutional privilege, under both Article I, § 8 of the New York State Constitution and under the First Amendment, for nonconfidential information gathered by reporters. See O'Neill, 71 N.Y.2d 521 (privilege extends to nonconfidential photographs sought in a civil action). The decision in O'Neill, however, left open the question whether the qualified privilege would apply in the criminal context, and it came less than a year after the same court held that the Shield Law, as then written, did not protect from disclosure to a grand jury nonconfidential outtakes of an interview conducted of a suspect in a homicide investigation. Knight-Ridder Broad., Inc. v. Greenberg, 70 N.Y.2d 151, 518 N.Y.S.2d 595 (1987); see also People v. Korkala, 99 A.D.2d 161, 472 N.Y.S.2d 310 (1st Dep't 1984) (nonconfidential outtakes ordered produced for in camera inspection).
In the wake of O'Neill and Knight-Ridder, the Legislature again amended Civil Rights Law § 79-h (effective November 1, 1990) to settle conflicting interpretations of the Shield Law. The 1990 amendment extended the qualified privilege to nonconfidential information obtained by reporters in the course of newsgathering and made clear that the privilege applies in both criminal and civil proceedings. The amendment codified the three-part test enunciated in O'Neill, which provides that the qualified privilege can only be overcome by a "clear and specific" showing by the party seeking to discover a reporter's resource materials that the materials sought are: (a) highly material and relevant; (b) critical or necessary to the maintenance of a party's claim or defense; and (c) not obtainable from any alternative source.
Other changes to Civil Rights Law § 79-h included provisions requiring that an order overcoming the qualified privilege could be no broader than necessary, and the order must be supported by clear and specific findings made after a hearing. Civ. Rights § 79-h(c). In addition, subsection (g) was also added to the statute, which provides that the privilege for both confidential and nonconfidential information may be waived by voluntary disclosure to a non-journalist of the specific information sought.
While the media supported the 1990 amendments, the New York Defenders Association, Inc. opposed extending the qualified privilege to nonconfidential news on the grounds that it conflicted with criminal defendants' Sixth Amendment rights and gave the press alone the power to decide whether and when to disclose information relevant to prosecutors and criminal defendants. Governor's Bill Jacket, L 1990, ch. 33 (pages not numbered). In order to address these concerns, the Defenders Association proposed that the privilege be limited to civil proceedings only, a position advocated by state Senator Gold and others in the floor debates over the bill. New York State Senate Debates, 1990, ch. 33 at p. 1834-35, 1849-50. However, Governor Cuomo signed the bill into law on March 23, 1990, stating:
Significantly, this qualified privilege will apply in both civil and criminal cases. Indeed, the need for protection of nonconfidential information and sources is especially strong in criminal cases where journalists are all too often drawn into the criminal justice system merely because they have reported on a crime.
In applying this standard to criminal proceedings, the bill does not override the right to a fair trial guaranteed to defendants in criminal proceedings by the United States and New York State Constitution. To the contrary, the bill strikes an appropriate balance between the principle of a free press embodied in the First Amendment and a defendant's right to a fair trial.
Memorandum of Governor Mario Cuomo filed with Assembly Bill No. 3226-B, Governor's Bill Jacket, 1990 ch. 33.
North Carolina's "reporter's privilege" or "shield law" is codified at N.C. Gen. Stat. § 8-53.11. This statute provides as follows:
Persons, companies, or other entities engaged in gathering or dissemination of news.
(a) Definitions. - The following definitions apply in this section:
(1) Journalist. - Any person, company, or entity, or the employees, independent contractors, or agents of that person, company, or entity, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium.
(2) Legal proceeding. - Any grand jury proceeding or grand jury investigation; any criminal prosecution, civil suit, or related proceeding in any court; and any judicial or quasi-judicial proceeding before any administrative, legislative, or regulatory board, agency, or tribunal.
(3) News medium. - Any entity regularly engaged in the business of publication or distribution of news via print, broadcast, or other electronic means accessible to the general public.
(b) A journalist has a qualified privilege against disclosure in any legal proceeding of any confidential or non-confidential information, document, or item obtained or prepared while acting as a journalist.
(c) In order to overcome the qualified privilege provided by subsection (b) of this section, any person seeking to compel a journalist to testify or produce information must establish by the greater weight of the evidence that the testimony or production sought:
(1) Is relevant and material to the proper administration of the legal proceeding for which the testimony or production is sought;
(2) Cannot be obtained from alternate sources; and
(3) Is essential to the maintenance of a claim or defense of the person on whose behalf the testimony or production is sought.
Any order to compel any testimony or production as to which the qualified privilege has been asserted shall be issued only after notice to the journalist and a hearing and shall include clear and specific findings as to the showing made by the person seeking the testimony or production.
(d) Notwithstanding subsections (b) and (c) of this section, a journalist has no privilege against disclosure of any information, document, or item obtained as the result of the journalist's eyewitness observations of criminal or tortious conduct, including any physical evidence or visual or audio recording of the observed conduct.
The shield law became effective October 1, 1999, and applies only to information or documents prepared while acting as a journalist on or after that date. See An Act to Promote the Free Flow of Information to the People of North Carolina by Codifying the Journalists' Testimonial Privilege, ch. 267, 1999 N.C. Sess. Laws 359, s. 2. Although it may be unlikely that information gathered before October 1, 1999 would be the subject of a subpoena, it is important to remember that the statutory privilege would not apply to such information, and any motion to quash a subpoena issued for such information would have to be argued on the basis of the common law privilege arising from the federal or state constitutions. Similarly, should a judge determine that the shield law does not apply to any other particular situation, a journalist could still assert a constitutional privilege.
In summary, the shield law grants journalists a broad but qualified privilege against disclosure of newsgathering information. The protection extends to virtually everyone connected with the publication or distribution of news information, including, but not limited to, reporters, photographers, stringers, and freelance reporters. All newsgathering activity is protected, so long as the activity is related to the business of publication or distribution of news via print, broadcast, or other electronic means. In addition, the statute protects all newsgathering information, regardless of whether the information is confidential or non-confidential. Finally, the protection extends to all legal proceedings, including criminal, civil, grand jury and quasi-judicial (i.e., administrative) proceedings.
To overcome the privilege, the party seeking the information must show: (1) that it is relevant and material to the proper administration of the legal proceeding; (2) that it cannot be obtained from alternative sources; and (3) that it is essential to the maintenance of a claim or defense. An order compelling the production of newsgathering information can only be made after notice and a hearing and upon "clear and specific" findings as to the showing made by the person seeking the information. However, no privilege exists for information or documents that result from a journalist's eyewitness observations of criminal or tortious conduct, including any recordings of the observed conduct.
As noted above, the North Carolina shield law statute was introduced and enacted in response to a decision of the North Carolina Court of Appeals refusing to recognize the reporter's privilege with respect to non-confidential information obtained from non-confidential sources in a criminal case. In re Owens, 128 N.C. App. 577, 496 S.E.2d 592, 26 Media L. Rep. 1953 (1998). In that case, television reporter Sarah Owens had taped an interview with the attorney of a murder suspect, and the prosecutor in the case issued a subpoena demanding that she testify about the tape. She appeared at a hearing, but refused to testify, claiming that her testimony was privileged. The trial court judge held the reporter in contempt of court and sentenced her to 30 days in jail, which was later reduced to 2 hours. The reporter appealed the contempt order to the Court of Appeals, which issued a decision on February 17, 1998, affirming the trial court's decision, albeit on the narrow ground that in a criminal case a reporter enjoys no privilege for non-confidential information obtained from non-confidential sources.
A few days after the Court of Appeals decision in Owens, a reporter for the Raleigh News & Observer, Andy Curliss, received a subpoena in another capital murder case. The prosecution sought Mr. Curliss' notes from a jailhouse interview with the defendant, Derrick Allen. The trial court undertook an in camera review of the notes in issue and, without clearly ruling whether it recognized a privilege at all, ruled that the reporter must turn over his notes. The court granted the newspaper's motion for a stay of this ruling and, acting under a provision allowing matters ancillary to capital murder cases to go directly to the North Carolina Supreme Court, the newspaper petitioned the Supreme Court for certiorari. The court granted certiorari, and oral argument was heard in the end of May 1998 after an expedited briefing schedule.
The North Carolina Supreme Court also granted review in Owens and heard oral argument in September 1998. After months went by without a decision from the Supreme Court in either Owens or Curliss, the North Carolina Press Association and the North Carolina Association of Broadcasters worked with key legislators to craft legislation to overrule the Owens decision and codify the journalist's testimonial privilege. The result of this effort was the enactment of the shield law, which was ratified by the legislature on June 30, 1999, and signed into law by the Governor on July 9, 1999.
Immediately after enactment of the shield law, on July 23, 1999, the Supreme Court issued a one sentence decision affirming Owens but noting the enactment of the shield law. See In re Owens, 350 N.C. 656, 517 S.E.2d 605, 27 Media L. Rep. 2340 (July 23, 1999) (the lower's court's decision in Owens was affirmed, despite the passage of the shield law, because the reporter's material in Owens was gathered before the shield law's October 1, 1999 effective date). On the same day, the Supreme Court entered an order in Curliss holding that certiorari had been improvidently granted, therefore sending the matter back to the trial court. See In re Curliss, 350 N.C. 655, 517 S.E.2d 381 (1999).
No formal legislative history exists to provide additional context and explanation of the shield law. However, some guidance concerning the legislature's intent may be obtained by comparing the Bill that was ultimately enacted, Senate Bill 1009, with the companion House Bill 1200 that was passed by the House but ultimately rejected in favor of the Senate version. There were three principal substantive differences between these Bills:
(1) In the House Bill, the definition of "journalist" lacked the phrase: "or the employees, independent contractors or agents of that person, company or entity;"
(2) The House Bill lacked a provision specifying that a journalist has no privilege against disclosure of the journalist's eyewitness observations of criminal or tortious conduct; and
(3) The House Bill had a provision allowing the award of reasonable attorneys' fees and expenses to the prevailing party.
There have been no substantive amendments to the shield law statute since it was enacted in 1999, although the statute was initially codified as G.S. § 8-53.9 and subsequently was recodified as G.S. § 8-53.11.
North Dakota adopted the shield law statute in 1973, in apparent response to the Branzburg decision. The statute is codified in N.D.C.C. § 31-01-06.2:
Disclosure of news sources and information required only on court order. No person shall be required in any proceeding or hearing to disclose any information or the source of any information procured or obtained while the person was engaged in gathering, writing, photographing, or editing news and was employed by or acting for any organization engaged in publishing or broadcasting news, unless directed by an order of a district court of this state which, after hearing, finds that the failure of disclosure of such evidence will cause a miscarriage of justice.
The North Dakota Supreme Court examined the legislative history behind the statute in Grand Forks Herald v. Dist. Court in and for Grand Forks Cnty., 322 N.W.2d 850 (N.D. 1982). The purpose behind the statute was to protect confidential sources, although the plain language of the text does not make that distinction.
Ohio Revised Code § 2739.04 (broadcasters)
No person engaged in the work of, or connected with, or employed by any noncommercial educational or commercial radio broadcasting station, or any noncommercial educational or commercial television broadcasting station, or network of such stations, for the purpose of gathering, procuring, compiling, editing, disseminating, publishing, or broadcasting news shall be required to disclose the source of any information procured or obtained by such person in the course of his employment, in any legal proceeding, trial, or investigation before any court, grand jury, petit jury, or any officer thereof, before the presiding officer of any tribunal, or his agent, or before any commission, department, division, or bureau of this state, or before any county or municipal body, officer, or committee thereof. . . .
Ohio Revised Code § 2739.12 (newspapers)
No person engaged in the work of, or connected with, or employed by any newspaper or any press association for the purpose of gathering, procuring, compiling, editing, disseminating, or publishing news shall be required to disclose the source of any information procured or obtained by such person in the course of his employment, in any legal proceeding, trial, or investigation before any court, grand jury, petit jury, or any officer thereof, before the presiding officer of any tribunal, or his agent, or before any commission, department, division, or bureau of this state, or before any county or municipal body, officer or committee thereof.
One court has described the legislative intent behind the shield statutes as protecting the relationship between a source, who desires to give information to a newsperson but who fears publicity or the possible retribution arising from the discovery that he is the source of the information that has been broadcast/published, and a newsperson. Such a relationship is to be fostered in order to protect the free flow of information from the source to the reporter. See State v. Geis, 2 Ohio App.3d 258, 441 N.E.2d 803 (10th Dist. 1981).
Oklahoma's shield law is found at Okla. Stat. tit. 12, § 2506. The text of the statute is as follows:
A. As used in this section:
1. “State proceeding” includes any proceeding or investigation before or by any judicial, legislative, executive or administrative body in this state;
2. “Medium of communication” includes any newspaper, magazine, other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, cable television system, or record;
3. “Information” includes any written, oral or pictorial news or other record;
4. “Published information” means any information disseminated to the public by the person from whom disclosure is sought;
5. “Unpublished information” includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated, and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated;
6. “Processing” includes compiling, storing and editing of information; and
7. “Journalist” means any person who is a reporter, photographer, editor, commentator, journalist, correspondent, announcer, or other individual regularly engaged in obtaining, writing, reviewing, editing, or otherwise preparing news for any newspaper, periodical, press association, newspaper syndicate, wire service, radio or television station, or other news service. Any individual employed by any such news service in the performance of any of the above-mentioned activities shall be deemed to be regularly engaged in such activities. However, journalist shall not include any governmental entity or individual employed thereby engaged in official governmental information activities.
B. No journalist shall be required to disclose in a state proceeding either:
1. The source of any published or unpublished information obtained in the gathering, receiving or processing of information for any medium of communication to the public; or
2. Any unpublished information obtained or prepared in gathering, receiving or processing of information for any medium of communication to the public; unless the court finds that the party seeking the information or identity has established by clear and convincing evidence that such information or identity is relevant to a significant issue in the action and could not with due diligence be obtained by alternate means.
This subsection does not apply with respect to the content or source of allegedly defamatory information, in a civil action for defamation wherein the defendant asserts a defense based on the content or source of such information.
The journalist’s privilege statute was originally adopted in 1974, 1974 Okla. Sess. Laws, c. 123, §§ 1–3, and codified as Okla. Stat. tit. 12, §§ 385.1–385.3. A privilege for journalists was not incorporated in the initial draft of the Oklahoma Evidence Code when it was proposed in 1978 by the Subcommittee on Evidence of the Oklahoma Bar Association's Code Procedure––Civil Committee, but the Oklahoma legislature inserted the privilege without change in substance from the then–current statutory version. Although the legislative history of the privilege is scant, it is believed that the Oklahoma Press Association was instrumental in persuading legislators of the value of a privilege statute. The privilege statute was amended in 2002 to change the term “newsman” to “journalist” and otherwise to make the statute gender–neutral, but there have been no substantive amendments since its adoption in 1978.
- ORS 44.510: Definitions for ORS 44.510 to ORS 44.540.
As used in ORS 44.510 to 44.540, unless the context requires otherwise:
(1) "Information" has its ordinary meaning and includes, but is not limited to, any written, oral, pictorial or electronically recorded news or other data.
(2) "Medium of communication" has its ordinary meaning and includes, but is not limited to, any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system. Any information which is a portion of a governmental utterance made by an official or employee of government within the scope of the official's or employee's governmental function, or any political publication subject to ORS 260.532 (False publication relating to candidate or measure), is not included within the meaning of "medium of communication."
(3) "Processing" has its ordinary meaning and includes, but is not limited to, the compiling, storing and editing of information.
(4) "Published information" means any information disseminated to the public.
(5) "Unpublished information" means any information not disseminated to the public, whether or not related information has been disseminated. "Unpublished information" includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not themselves disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.
2. ORS 44.520: Limitation on compellable testimony from media persons; search of media persons' papers, effects or work premises prohibited; exception.
(1) No person connected with, employed by or engaged in any medium of communication to the public shall be required by a legislative, executive or judicial officer or body, or any other authority having power to compel testimony or the production of evidence, to disclose, by subpoena or otherwise:
(a) The source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public; or
(b) Any unpublished information obtained or prepared by the person in the course of gathering, receiving or processing information for any medium of communication to the public.
(2) No papers, effects or work premises of a person connected with, employed by or engaged in any medium of communication to the public shall be subject to a search by a legislative, executive or judicial officer or body, or any other authority having power to compel the production of evidence, by search warrant or otherwise. The provisions of this subsection, however, shall not apply where probable cause exists to believe that the person has committed, is committing or is about to commit a crime.
3. ORS 44.530: Application of ORS 44.520
(1) ORS 44.520 (Limitation on compellable testimony from media persons) applies regardless of whether a person has disclosed elsewhere any of the information or source thereof, or any of the related information.
(2) ORS 44.520 (Limitation on compellable testimony from media persons) continues to apply in relation to any of the information, or source thereof, or any related information, even in the event of subsequent termination of a person's connection with, employment by or engagement in any medium of communication to the public.
(3) The provisions of ORS 44.520 (1) (Limitation on compellable testimony from media persons) do not apply with respect to the content or source of allegedly defamatory information, in civil action for defamation wherein the defendant asserts a defense based on the content or source of such information.
4. ORS 44.540: Effect of informant as a witness
If the informant offers the informant as a witness, it is deemed a consent to the examination also of a person described in ORS 44.520 (Limitation on compellable testimony from media persons) on the same subject.
The Pennsylvania Shield Law, 42 Pa. Cons. Stat. § 5942(a), provides:
No person engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news, shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit.
Pennsylvania enacted its Shield Law in 1937. See Act of June 25, 1937, No. 433, 1937 Pa. Laws 2123. The original statute protected people working on behalf of “any newspaper of general circulation” and “any press association for the purpose of gathering, procuring, compiling, editing or publishing news.” Id. The Shield Law has been amended twice since then. First, in 1959, the Law was extended to protect radio and television stations, but only if they maintain copies or transcripts of their broadcasts for at least one year. See Act of Dec. 1, 1959, No. 612, 1959 Pa. Laws 1669-70. Nine years later, the statute was amended again to add magazines to the list of protected entities. See Act of July 31, 1968, No. 255, 1968 Pa. Laws 858-59.
In 1976, the Law was recodified as part of the General Assembly’s recodification of the entire Judicial Code. See Judiciary Act of 1976, No. 142, sec. 2, ch. 59, subch. A, § 5942, 1976 Pa. Laws 586, 725-26. The recodification did not change the substance of the Shield Law.
By enacting the Shield Law, the Pennsylvania General Assembly intended to protect the freedom of the press and the free flow of information. In the Assembly’s deliberations preceding passage of the 1959 amendment, legislators expressed their concern that people would not share news with reporters if “they knew that the sources would be disclosed.” 1959 Legis. J. 4197, 4198 (Oct. 15, 1959) (statement of Rep. Bell). The legislators lauded the Shield Law for eliminating this concern by barring courts and government agencies from requiring reporters to “divulg[e] the information that comes to the hands of newspaper reporters.” Id. (statement of Rep. Steckel).
In 2008, the Pennsylvania Supreme Court reaffirmed the policy basis for the Shield Law, stating that the privilege “was enacted to protect the free flow of information to the news media in their role as information providers to the general public.” Castellani v. Scranton Times, L.P., 956 A.2d 937, 951 (Pa. 2008).
The Rhode Island Shield Law, known as the "Newsman's Privilege Act", is found in Rhode Island General Laws § 9-19.1-1 through § 9-19.1-3. It was enacted in 1971 and subsequently amended in 1997.
The statute provides:
Except as provided in § 9-19.1-3, no person shall be required by any court, grand jury, agency, department, or commission of the state to reveal confidential association, to disclose any confidential information, or to disclose the source of any confidential information received or obtained by him or her in his or her capacity as a reporter, editor, commentator, journalist, writer, correspondent, news photographer, or other person directly engaged in the gathering or presentation of news for any accredited newspaper, periodical, press association, newspaper syndicate, wire service, or radio or television station.
R.I. Gen. Laws § 9-19.1-2. The Act further explains that:
(a) The privilege conferred by § 9-19.1-2 shall not apply to any information which has at any time been published, broadcast, or otherwise made public by the person claiming the privilege.
(b) The privilege conferred by § 9-19.1-2 shall not apply:
(1) To the source of any allegedly defamatory information in any case where the defendant, in a civil action for defamation, asserts a defense based on the source of the information; or
(2) To the source of any information concerning the details of any grand jury or other proceeding which was required to be secret under the laws of the state.
(c) In any case where a person claims a privilege conferred by this statute, the person seeking the information or the source of the information may apply to the superior court for an order divesting the privilege. If the court, after hearing the parties, shall find that there is substantial evidence that disclosure of the information or of the source of the information is necessary to permit a criminal prosecution for the commission of a specific felony, or to prevent a threat to human life, and that the information or the source of the information is not available from other prospective witnesses, the court may make such order as may be proper under the circumstance. Any such order shall be appealable under the provisions of chapter 24 of title 9.
R.I. Gen. Laws § 9-19.1-3. For the purposes of these sections, a newspaper is defined as "one that is issued at regular intervals and ha[s] a paid circulation." R.I. Gen. Laws § 9-19.1-1.
The South Carolina General Assembly adopted a shield law as Act No. 138 of 1993. The Act became effective upon the signature of the governor on June 14, 1993. The enactment is codified as S.C. Code Ann. §19-11-100 (Supp. 2001) and provides:
(A) A person, company, or entity engaged in or that has been engaged in the gathering and dissemination of news for the public through a newspaper, book, magazine, radio, television, news or wire service, or other medium has a qualified privilege against disclosure of any information, document, or item obtained or prepared in the gathering or dissemination of news in any judicial, legislative, or administrative proceeding in which the compelled disclosure is sought and where the one asserting the privilege is not a party in interest to the proceeding.
(B) The person, company, or other entity may not be compelled to disclose any information or document or produce any item obtained or prepared in the gathering or dissemination of news unless the party seeking to compel the production or testimony establishes by clear and convincing evidence that this privilege has been knowingly waived or that the testimony or production sought:
(1) is material and relevant to the controversy for which the testimony or production is sought;
(2) cannot be reasonably obtained by alternative means; and,
(3) is necessary to the proper preparation or presentation of the case of a party seeking the information, document, or item.
(C) Publication of any information, document, or item obtained in the gathering and dissemination of news does not constitute a waiver of the qualified privilege against compelled disclosure provided for in this section.
The push for a shield law grew out of a federal court prosecutions of members of the state's General Assembly for corruption. The U.S. Attorney called four reporters to the stand in the trial of a state senator. When each reporter declined to testify the court held them in contempt and confined them over the course of three days until the government withdrew the subpoenas. The contempt citations were appealed to the Fourth Circuit and resulted in a majority opinion which declined to recognize a privilege in the absence of bad faith on the part of the government. A concurring judge rejected the majority's rationale and characterized it as "a one-dimensional look at a two-dimensional problem." In re Shain, 978 F.2d 850 (4th Cir. 1992).
The shield law is not generally known to the bench and bar, and each subpoena directed at a reporter or news organization is in the first instance an educational exercise. Many lawyers and some judges are incredulous that the legislature would impose such a barrier to the quest for evidence. There have been no efforts since 1993 to amend the law.
Tennessee's shield law was enacted in 1974, in the wake of the 1972 U.S. Supreme Court decision in Branzburg v. Hayes.
The Tennessee shield law provides:
§ 24-1-208. Persons gathering information for publication or broadcast Disclosure.
(a) A person engaged in gathering information for publication or broadcast connected with or employed by the news media or press, or who is independently engaged in gathering information for publication or broadcast, shall not be required by a court, a grand jury, the general assembly, or any administrative body, to disclose before the general assembly or any Tennessee court, grand jury, agency, department, or commission any information or the source of any information procured for publication or broadcast.
(b) Subsection (a) shall not apply with respect to the source of any allegedly defamatory information in any case where the defendant in a civil action for defamation asserts a defense based on the source of such information.
(1) Any person seeking information or the source thereof protected under this section may apply for an order divesting such protection. Such application shall be made to the judge of the court having jurisdiction over the hearing, action or other proceeding in which the information sought is pending.
(2) The application shall be granted only if the court after hearing the parties determines that the person seeking the information has shown by clear and convincing evidence that:
(A) There is probable cause to believe that the person from whom the information is sought has information which is clearly relevant to a specific probable violation of law;
(B) The person has demonstrated that the information sought cannot reasonably be obtained by alternative means; and
(C) The person has demonstrated a compelling and overriding public interest of the people of the state of Tennessee in the information.
(A) Any order of the trial court may be appealed to the court of appeals in the same manner as other civil cases. The court of appeals shall make an independent determination of the applicability of the standards in this subsection to the facts in the record and shall not accord a presumption of correctness to the trial court's findings.
(B) The execution of or any proceeding to enforce a judgment divesting the protection of this section shall be stayed pending appeal upon the timely filing of a notice of appeal in accordance with Rule 3 of the Tennessee Rules of Appellate Procedure, and the appeal shall be expedited upon the docket of the court of appeals upon the application of either party.
(C) Any order of the court of appeals may be appealed to the supreme court of Tennessee as provided by law.
Tenn. Code Ann. § 24-1-208.
- Shield law statute
The Texas Free Flow of Information Act (also known as a reporter’s privilege) is a qualified privilege with separate civil and criminal sections. The civil section, codified at Texas Civil Practice & Remedies Code §§22.021-22.027, applies to confidential and non-confidential sources, journalist’s work product, and published and unpublished materials. In order to require a reporter to testify or produce materials, the party who issued the subpoena must show by clear and specific evidence that they have satisfied the following six-part test:
(1) all reasonable efforts have been exhausted to obtain the information from alternative sources;
(2) the subpoena is not overbroad, unreasonable, or oppressive and, when appropriate, will be limited to the verification of published information and the surrounding circumstances relating to the accuracy of the published information;
(3) reasonable and timely notice was given of the demand for the information, document, or item;
(4) in this instance, the interest of the party subpoenaing the information outweighs the public interest in gathering and dissemination of news, including the concerns of the journalist;
(5) the subpoena or compulsory process is not being used to obtain peripheral, nonessential, or speculative information; and
(6) the information, document, or item is relevant and material to the proper administration of the official proceeding for which the testimony, production, or disclosure is sought and is essential to the maintenance of a claim or defense of the person seeking the testimony, production, or disclosure.
Tex. Civ. Prac. & Rem. Code §22.024.
The criminal section, on the other hand, codified at Texas Code of Criminal Procedure arts. 38.11 and 38.111, is separated into three parts with different tests applying to different matters. The first part deals with confidential sources, the next with unpublished work product and non-confidential sources, and the third with published information. When a confidential source is involved, there is a privilege except to the extent that (1) the journalist was an eye witness to a felony, (2) the journalist received a confession of the commission of a felony, or, (3) probable cause exists that the source committed a felony. In those three scenarios, the only hurdle one must overcome before calling the journalist to testify is establishing by clear and specific evidence that they have exhausted all reasonable efforts to get the information elsewhere. Further, a journalist can be compelled to give up his confidential source if disclosure is reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm. With regard to unpublished materials (i.e., work product) in the criminal setting, the requesting party must first show through clear and convincing evidence that “all reasonable efforts have been exhausted to obtain the information from alternative sources” and that the requested materials are “relevant and material to the proper administration of the official proceeding for which the testimony, production, or disclosure is sought and is essential to the maintenance of a claim or defense of the person seeking the testimony, production or disclosure;” or “central to the investigation or prosecution of a criminal case and based on something other than the assertion of the person requesting the subpoena, reasonable grounds exist to believe that a crime occurred.” Tex. Code Crim. Proc. art. 38.11 § 5(a). The Court should also consider whether the nature of the subpoena, the timing of the notice of the demand and whether the interest of the requesting party outweighs “the public interest in gathering and dissemination of news.” Tex. Code Crim. Proc. art. 38.11 § 5(b). Published materials are not covered by the criminal statute so one would look to common law with regard to those materials.
The bill that was proposed in the 2005 and 2007 and ultimately passed in the 2009 legislative session is a qualified privilege patterned in large part after the Department of Justice Guidelines. In 2007, there were two chief opponents to the legislation – law enforcement and the business community. During the 2007 session, the proponents of the law were able to negotiate with the business community to alleviate their concerns about disclosure of trade secrets and other information they deemed to be “private” or “proprietary” in nature. Ultimately, the business community groups signed a letter to the Legislature indicating they no longer opposed the bill. Despite repeated efforts, there were no fruitful negotiations with the prosecutors in either 2005 or 2007. In 2007, the bill passed out of the Texas Senate and the House Judiciary Committee but was killed on a technical point of order during the last days of the 80th regular legislative session.
In the 2009 legislative session, long-time sponsors in the Senate – Senator Rodney Ellis (D-Houston) and Senator Robert Duncan (R-Lubbock) – continued as steadfast supporters of the legislation. Having lost the prior House sponsor in a primary election, a new House sponsor was needed. San Antonio Representative Trey Martinez-Fischer signed up to sponsor the legislation and was key in its passage. HB 670 (the Texas Free Flow of Information Act) was heard by the newly-reconstituted House Judiciary and Civil Jurisprudence committee in 2009. There were only three returning members of the committee who had heard the issue in previous sessions. Proponents were concerned that the learning curve would be detrimental to the cause, but this proved not to be a problem, in large part, because of the strength of the new chairman of the committee – Chairman Todd Hunter (R-Corpus Christi).
From the beginning, Chairman Hunter worked to have the bill heard early, and he put tremendous pressure on the prosecutorial community to sit down and have a meaningful discussion and negotiate with the media on the bill. As a result of Chairman Hunter’s tenacity and dedication, those advocating for the bill had four different negotiation sessions with the prosecutors – the final one lasting more than thirteen hours. In the end, everyone agreed upon the language in the bill; prosecutors testified before the House and Senate committees that they no longer had opposition to the bill, and the bill sailed through the House and the Senate with unanimous votes on third reading.
The Utah Legislature has not enacted a statutory shield law. Under the Utah Constitution, the Utah Supreme Court – not the Legislature – is given primary authority for enacting rules of evidence, including evidentiary privileges. See Utah Const. art. VIII, § 4. Accordingly, in January 2008, the Utah Supreme Court adopted Utah Rule of Evidence 509—a rule which created a reporter’s privilege for Utah. This rule was the culmination of two-and-one-half years of study and debate by the Utah Supreme Court Advisory Committee—a committee of lawyers and judges. Media Counsel representing nearly every journalism and news organization in Utah petitioned the Committee to create a reporter’s privilege rule and were intensely involved in the drafting and comment process. The Advisory Committee Note indicates that the purpose of this rule is “to address any uncertainty that may exist under Utah Law and to provide for uniformity in the recognition of the privilege by Utah courts.” Utah R. Evid. 509 advisory committee note (2008).
Under Rule 509, which provides an expansive privilege to news reporters, 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 the 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 Advisory Committee Note provides guidance on how courts should apply this rule. See Utah R. Evid. 509 advisory committee note (2008). Specifically, a court should “consider the interests of the person seeking disclosure and the interests of the free flow of information to news reporters.” Id. In balancing the various interests of the parties, courts should consider those factors set forth in Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977), including “(1) whether the party seeking the information has attempted independently to obtain the information, (2) whether the information being sought goes to the heart of the matter, (3) whether the information is of certain relevance, and (4) the type of controversy.” Utah R. Evid. 509 advisory committee note (2008). The Note also emphasizes that “[a]s the law in this area continues to develop, the court should consider other factors found to influence the open and free flow of information that is vital to our culture and form of government.” Id.
The privileges provided under this rule may “be claimed, as applicable, by the news reporter, the organization or entity on whose behalf the news reporter was acting, the confidential source, the news reporter’s or confidential source’s guardian or conservator or the personal representative of a deceased news reporter or confidential source.” Utah R. Evid. 509(e). Significantly, the definition of news reporter is broad and flexible. It provides, “‘News reporter’ means a publisher, editor, reporter or other similar person gathering information for the primary purpose of disseminating news to the public and any newspaper, magazine, or other periodical publication, press association or wire service, radio station, television station, satellite broadcast, cable system or other organization with whom that person is connected.” Id. 509(a)(1). The Advisory Committee Note explains that “[t]he rule incorporates a relatively broad and flexible definition of news reporter to accommodate the ever-changing methods of expression and publication. While there are not many ‘lone pamphleteers’ still functioning, they may have modern-day counterparts on the internet.” Id. 509 advisory committee note (2008).
Finally, subparagraph (f) gives reporters an additional layer of protection. It provides that once a court makes an initial determination that information claimed to be published should be disclosed, “the court shall conduct an in camera review of that information before making a final determination requiring disclosure.” Utah R. Evid. 509(f).
In 2017, the General Assembly enacted a Shield Law to protect journalists and their sources. See 12 V.S.A. § 1615. The law creates two privileges. The first provides an absolute privilege “to a journalist to disclose news or information obtained or received in confidence.” 12 V.S.A. § 1615(b)(1). The second creates a qualified privilege to “a journalist to disclose news or information that was not obtained or received in confidence unless it finds that the party seeking the news or information establishes by clear and convincing evidence” that the information is: (1) highly material to a significant legal issue before the court; (2) the news or information could not, with due diligence, be obtained by alternative means; and (3) there is a compelling need for disclosure. 12 V.S.A. § 1615(b)(2). The act contains broad definitions of “journalist” and “journalism.”
Washington’s reporter shield statute was signed into law on April 27, 2007, and is codified at RCW 5.68.010. The statute provides the "news media" (as defined therein) with absolute protection for confidential sources and qualified protection for other journalistic materials and information. The statute clarifies and expands the scope of protection for reporters from compelled testimony and disclosure.
Though frequently invoked by the press in response to subpoenas, the statute has been cited in just one published appellate decision, in a case that did not involve a media litigant. In Republic of Kazakhstan v. Does 1-100, 192 Wash. App. 773, 368 P.3d 524 (2016), the Court of Appeals interpreted the shield law broadly and quashed a subpoena seeking to force an internet domain registry to disclose information that would have enabled the government of Kazakhstan to identify hackers who allegedly stole confidential information and supplied it to an opposition newspaper. The court recognized the shield statute prevents not only “disclosure of the identity of a source of any news or information,” but also “disclosure of any information that would tend to identify a source.” Id., 192 Wash. App. at 786.
West Virginia’s Reporter’s Privilege statute, W.Va. Code § 57-3-10, states:
(a) "Reporter" means a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns matters of public interest for dissemination to the public for a substantial portion of the person's livelihood, or a supervisor, or employer of that person in that capacity: Provided, That a student reporter at an accredited educational institution who meets all of the requirements of this definition, except that his or her reporting may not provide a portion of his or her livelihood, meets the definition of reporter for purposes of this section.
(b) No reporter may be compelled to:
(1) Testify in any civil, criminal, administrative or grand jury proceeding in any court in this state concerning the confidential source of any published or unpublished information obtained by the reporter in the course of the above described activities without the consent of the confidential source, unless such testimony is necessary to prevent imminent death, serious bodily injury or unjust incarceration; or
(2) Produce any information or testimony that would identify a confidential source, without the consent of the confidential source, unless such testimony or information is necessary to prevent imminent death, serious bodily injury or unjust incarceration.
(c) Nothing in this section shall be read to limit any existing Constitutional protections afforded any person under the United States or West Virginia Constitutions.
As of the date this Compendium was published, there have been no reported decisions applying the Reporter’s Privilege statute. One unreported case discusses this statute in the context of a trial court decision construing broadly the definition of a “reporter” as used in the statute and applying it to the author of an independent online news story. Ramezan v. Hough, 2015 WL 5331810, at *1 (W. Va. 2015) (“[T]he circuit court first determined that petitioner’s tax records were irrelevant to the determination of whether petitioner could exercise the statutory privilege West Virginia Code § 57–3–10 affords to news reporters and, therefore, petitioner did not have to produce those records. Second, the circuit court found that petitioner was a “reporter” within the meaning of West Virginia Code § 57–3–10 and was able to exercise the privilege and protect the identity of his source.”).
Subpart (c) of W.Va. Code § 57-3-10 is significant because it makes clear that the shield law may not be read “to limit any existing constitutional protections” from compelled disclosure of information for reporters in West Virginia. This can only be understood to be a reference to the constitutional reporters’ privilege articulated in Hudok. It is clear then that subpart (c) only expands the scope of protections for reporters, and the shield law should not be interpreted as limiting or narrowing in any way the scope of the West Virginia reporters’ privilege previously articulated in Hudok.
Wisconsin’s shield law statute appears at Wis. Stat. § 885.14. The shield law establishes an absolute privilege for confidential sources and information, and a qualified privilege for all other newsgathering material. Any party seeking to subpoena a “news person” must make a rigorous showing before a court will issue such a subpoena.