B. Absolute or qualified privilege
State privilege defenses have full force and effect in federal court in diversity jurisdiction cases by virtue of Fed. R. Evid. 501. Price v. Time, 416 F.3d 1327, 1336, 1339 (11th Cir. 2005). Thus, for diversity cases, state law governs whether the privilege is absolute or qualified.
The federal privilege as recognized by the Eleventh Circuit is a qualified one. Price, 416 F. 3d at 1343. It may be pierced if the party seeking the reporter’s confidential source presents: “substantial evidence[:] that the challenged statement was published and is both factually untrue and defamatory;  that reasonable efforts to discover the information from alternative sources have been made and that no other reasonable source is available; and  that knowledge of the identity of the informant is necessary to proper preparation and presentation of the case.” Id.
The privilege is qualified for both confidential and non-confidential materials. United States v. Burke, 700 F.2d 70, 76-77 (2d Cir.) cert. denied, 464 U.S. 816 (1983) (recognizing qualified privilege for confidential materials); Gonzales v. National Broadcasting Co., 194 F.3d 29 (2d Cir. 1999) (recognizing qualified privilege for non-confidential materials).
The Third Circuit has repeatedly held that the First Amendment-based reporter's privilege is a qualified one, regardless of whether raised in a civil or criminal context. E.g., Cuthbertson I, 630 F.2d at 146-47; Riley, 612 F.2d at 715. In United States v. Criden, the Court of Appeals observed that, "[w]hen no countervailing constitutional concerns are at stake, it can be said that the privilege is absolute; when constitutional precepts collide, the absolute gives way to the qualified and a balancing process comes into play to determine its limits." 633 F.2d at 356. However, as another court has observed, in practice "every case has some constitutional element,” so “an absolute privilege is no longer recognized," and “reference to an ‘absolute’ privilege is an academic distinction.” Damiano, 168 F.R.D. at 495.
Both the Pennsylvania and New Jersey state shield laws have been said to create an absolute privilege at least as to the identity of confidential sources. See In re Subpoena to Barnard, No. Misc. 98-189, 27 Media L. Rep. (BNA) 1500, 1999 WL 38269, at *2 (E.D. Pa. Jan. 25, 1999) ("The Pennsylvania Shield Law provides journalists with an absolute privilege against the compelled disclosure of confidential sources of information."); Lal v. CBS, Inc., 551 F. Supp. 364, 365 (E.D. Pa. 1982) (the "privilege afforded by state law is broader than the constitutional privilege"), aff'd, 726 F.2d 97 (3d Cir. 1984); Damiano, 168 F.R.D. at 494 n.5 (noting that, although federal privilege is qualified, “the New Jersey privilege is still absolute”). However, there is a contrary suggestion in at least some federal court decisions within the Third Circuit. See, e.g., Smith, 516 F. App'x at 198 ("Pennsylvania state law and federal common law grant journalists a qualified privilege to refuse to disclose sources of information.").
The Fourth Circuit does not recognize an absolute privilege against disclosure. Even when a journalist is attempting to protect the identities of confidential sources — likely the strongest case for a reporter’s privilege — the courts of the Fourth Circuit balance the interests involved using the three-part test put forth in LaRouche: “(1) whether the information is relevant, (2) whether the information can be obtained by alternative means; and (3) whether there is a compelling interest in the information.” 780 F.2d at 1139. Notably, these factors are only applicable in a civil context, and have not been extended to recognize a privilege in a criminal proceeding. Sterling, 724 F.3d at 497. Though one district court recently maintained that a showing of confidentiality and harassment by the seeking party is a predicate for conducting a balancing analysis with respect to nonconfidential information, Church of Scientology provides a strong indication that the Fourth Circuit intends its LaRouche test to be used to evaluate requests for nonconfidential information as well. Church of Scientology, 992 F.2d at 1335; see also Food Lion Inc. v. Capital Cities/ABC Inc., 951 F. Supp. 1211, 1214, 25 Media L. Rep. 1182 (M.D.N.C. 1996) (applying a modified balancing test in permitting limited discovery of nonconfidential hidden camera investigations); Penland, 922 F. Supp. at 1084 (applying LaRouche test in granting motion to quash plaintiffs’ subpoena for nonconfidential information on interviews with defendant); contra United States v. Lindh, 210 F. Supp. 2d 780, 783 (E.D. Va. 2002) (holding there is no First Amendment privilege without a showing of confidentiality or harassment by the seeking party); United States v. King, 194 F.R.D. 569, 585 (E.D. Va. 2000) (same).
The reporter's privilege in the Fifth Circuit is a qualified privilege, where it exists at all. In civil cases, the Fifth Circuit recognizes a qualified privilege not to disclose the identity of confidential informants. Miller v. Transamerican Press, Inc., 621 F.2d 721, 725 (5th Cir. 1980), as modified, 628 F.2d 932 (5th Cir. 1980); In re Selcraig, 705 F.2d 789, 797 (5th Cir. 1983). Under the Fifth Circuit's reading of Branzburg v. Hayes, 408 U.S. 665 (1972), there is no privilege in criminal cases involving non-confidential sources and materials except to protect the newsperson from harassment, as where the grand jury does not conduct its investigation in good faith. See United States v. Smith, 135 F.3d 963, 969 (5th Cir. 1998).
To the extent that a privilege exists after McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), it must be considered qualified and courts follow the balancing test set forth in McKevitt.
However, the lower courts have continued to consider the interests of the media in deciding whether to quash subpoenas or compel disclosure. See, e.g., Hobley v. Burge, 223 F.R.D. 499 (N.D. Ill. 2004). "Given the important role that newsgathering plays in a free society, courts must be vigilant against attempts by civil litigants to turn non-party journalists or newspapers into their private discovery agents." Id. at 505.
The District of Minnesota adopted a qualified privilege in J.J.C. v. Fridell, 165 F.R.D. 513 (D. Minn. 1995). The court applied a balancing test, as follows:
The reporter's privilege is defeated only where the information sought is: 1) critical to the maintenance or the heart of the claim; 2) highly material and relevant; and 3) is unobtainable from other sources.
The Eastern District of Missouri, Southern District of Iowa, and the Eastern District of Arkansas have similarly adopted a qualified privilege, applying the same balancing test as the court in Fridell. See Continental Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427 (E.D. Mo. 1984); Nelle v. WHO Television, LLC, No. 4:17-cv-107, 2017 WL 7049237 (S.D. Iowa Dec. 12, 2017); Richardson v. Sugg, 220 F.R.D. 343 (E.D. Ark. 2004).
The Ninth Circuit recognizes a qualified privilege against compelled disclosure when facts acquired by a reporter in the course of gathering the news become the target of discovery. See Shoen I, 5 F.3d at 1292. The same qualified privilege applies for maintaining the confidentiality of sources’ identities. See Farr v. Pitchess, 522 F.2d 464, 467 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976) (affirming denial of reporter’s habeas corpus petition, holding that the state court had a duty to enforce nondisclosure orders to protect accused person’s due process rights).
In grand jury cases, the Ninth Circuit, following Branzburg, subordinates the journalists’ right to keep a source of information secret to the more compelling requirement that a grand jury be able to secure factual data relating to its investigation of criminal conduct. Id. at 467-68; see also In re Grand Jury Subpoena, 875 F.3d 1179, 1185 (9th Cir. 2017) (“In Branzburg v. Hayes, the Supreme Court held that a reporter—even one who has promised his sources anonymity—must cooperate with a grand jury investigation unless there is evidence that the investigation is being conducted in bad faith.”); United States v. Curtin, 489 F.3d 935, 955 (9th Cir. 2007) (explaining that Branzburg “refused to create a First Amendment free speech and free press privilege for news reporters to protect their sources from grand jury inquiries”). There, the court applies “a limited balancing of First Amendment interests . . . only ‘where a grand jury inquiry is not conducted in good faith, or where the inquiry does not involve a legitimate need of law enforcement, or has only a remote and tenuous relationship to the subject of the investigation.’” In re Grand Jury Subpoena (Wolf v. United States), 201 Fed. App’x 430, 432 (9th Cir. 2006) (quoting In re Grand Jury Proceedings (Scarce v. United States), 5 F.3d 397, 401 (9th Cir. 1993)).
In non-grand jury cases, in keeping with Justice Powell’s concurrence in Branzburg, the Ninth Circuit requires that “the claimed First Amendment privilege and the opposing need for disclosure be judicially weighed in light of the surrounding facts and a balance struck to determine where lies the paramount interest.” Farr v. Pitchess, 522 F.2d 464, 468 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976).
The privilege provided by Alabama's shield statute, Ala. Code § 12-21-142, appears to be absolute. In State v. Powers, No.: CC-03-593-JMH, 34 Med. L. Rptr. 1062, 1063 (Colbert County, Ala. Cir. Ct., May 28, 2004), the court granted a reporter’s motion to quash a subpoena, holding that the Alabama shield statute "absolutely protects news reporters from disclosing any source of information." Similarly, when deciding whether to compel a reporter to answer questions that would require him to disclose a source of information, a federal court sitting in the state recognized the absolute nature of the privilege afforded by the statute. Ex parte Sparrow, 14 F.R.D. 351 (N.D. Ala. 1953). Although the federal court was not bound to apply the statute, the court stated that "it would not be justified in ignoring such a clear and unequivocal pronouncement of the public policy of the state in which it sits, merely to reach out and apply a rule against the asserted privilege established in a non-federal jurisdiction." Id. at 353. The Eleventh Circuit has also indicated that the privilege provided by the Alabama shield statute is absolute. See Price v. Time, Inc., 416 F.3d 1327, 1335 (11th Cir. 2005) (ruling that Alabama shield statute did not apply but stating that statute "bestows an absolute privilege").
With respect to the reporter's privilege under the First Amendment, the privilege is qualified, and to overcome the privilege, the subpoenaing party must meet the following test: 1) The reporter must have information highly relevant to a claim or a defense; 2) There must be a compelling need for disclosure sufficient to override the First Amendment privilege; and 3) The party seeking the information must have unsuccessfully attempted to obtain it from other sources less chilling of First Amendment freedoms. Norandal USA, Inc. v. Local Union No. 7468, No.: CV-86-136, 13 Med. L. Rptr. 2167 (Jackson County, Ala. Cir. Ct., Sept. 11, 1986).
No Alaska statute or court decision has recognized an absolute reporter's privilege. The 50-year-old shield law suggests that the statutory privilege could be overcome by a showing that disclosure is essential to the administration of justice, a fair trial in the instant proceeding, or the protection of the public interest. Because of the vague and broad standards qualifying the statutory privilege, the press in Alaska has principally relied instead on the qualified constitutional privilege, requiring a showing that the information sought is crucial or goes to the heart of the case and is not available from another source that does not enjoy a First Amendment privilege.
The Arizona Shield Law provides an absolute privilege for confidential information or sources. See Matera, 170 Ariz. at 450, 825 P.2d at 975 ("application of the privilege is appropriate only when the requisite confidentiality is present").
The Arizona Media Subpoena Law provides certain procedural protections to news organizations and reporters who are the subject of subpoenas for confidential and non-confidential information. Historically, the Arizona Media Subpoena Law provided little substantive protection. Matera, 170 Ariz. at 448, 825 P.2d at 973 ("The statute is not a 'shield' law" and "was not designed to protect the information collected, but rather was to designed to aid a specific class of persons -- members of the media -- in performing their jobs free from the inconvenience of being used as surrogate investigators for private litigants."). Following Reinstein, however, the Media Subpoena Law has gained significant strength, as the Court of Appeals there found that a journalist is entitled to a qualified First Amendment privilege. 240 Ariz. at 448-49, 381 P.3d at 242-43.
The privilege is a qualified privilege. The manner in which the statute is drafted seems to presume, by the dependent clause at the beginning of the text, that a reporter can be made to divulge a source under certain circumstances. Ark. Code Ann. § 16-85-510. However, before a reporter or others protected by the statute can be made to divulge a source of information, the party seeking such disclosure must show that the article containing the information was "written, published, or broadcast in bad faith, with malice, and not in the interest of the public welfare." Thus, the privilege applies unless an article was written, published or broadcast under the circumstances exceeding the "actual malice" standard adopted by the U.S. Supreme Court. See New York Times v. Sullivan, 376 U.S. 254 (1964). In routine circumstances, a local prosecutor could not require a reporter to divulge the name of a source relating to a case the prosecutor was investigating. Similarly, a civil litigant could not compel discovery of a confidential source.
It should be noted that the federal judge in Williams, supra, a diversity case applying Arkansas law and decided five years after Saxton, in predicting how the Arkansas Supreme Court might construe the statute in a future libel lawsuit, stated that he was "persuaded that the Arkansas courts would be guided by precedent in which other courts have held that the newsman's privilege . . . must give way, even as to confidential sources, in a libel case where such is necessary for a plaintiff to establish actual malice or reckless disregard for the truth on a given defendant's part." Williams, 96 F.R.D. at 665. That prediction has yet to be put to the test before the Arkansas Supreme Court. In Williams, the court granted the plaintiffs' motion in a libel and invasion of privacy case against a television network to compel discovery of videotape outtakes for an investigative story on unnecessary surgery and malpractice. Id. at 660-61. The court held that outtakes were not protected under the Arkansas shield law because they did not involve disclosure of a source. Id. at 665 (emphasis supplied). The court held that disclosure was necessary to enable the plaintiffs to try to prove actual malice or reckless disregard of the truth and that a qualified privilege did not extend to the outtakes. Id.
California’s reporter’s privilege only prevents a finding of contempt for refusal to comply with a subpoena; consequently, it provides virtually no protection to reporters who are parties to the litigation. See Mitchell v. Superior Court, 37 Cal. 3d 268, 274, 690 P.2d 625, 208 Cal. Rptr. 152 (1984). However, in civil cases in which the reporter is not a party, the privilege provides essentially absolute protection, regardless of the type of information sought. See New York Times Co. v. Superior Court, 51 Cal. 3d 453, 456, 796 P.2d 811, 273 Cal. Rptr. 98 (1990).
In criminal cases, the privilege must be balanced against the criminal defendant’s right to a fair trial. See Delaney v. Superior Court, 50 Cal. 3d 785, 805-06, 789 P.2d 934, 268 Cal. Rptr. 753 (1990). The California Supreme Court also has held, however, that the prosecution in a criminal case has no constitutional or other rights sufficient to overcome the reporter’s privilege. See Miller v. Superior Court, 21 Cal. 4th 883, 901, 986 P.2d 170, 89 Cal. Rptr. 2d 834 (1999); see also People v. Vasco, 131 Cal. App. 4th 137, 158, 31 Cal. Rptr. 3d 643 (2005) (“The prosecution has no due process right to overcome a newsperson’s shield law immunity and force disclosure of unpublished information, even if the undisclosed information is crucial to the prosecution’s case.”); People v. Ault, 33 Cal. 4th 1250, 1269, 95 P.3d 523, 17 Cal. Rptr. 3d 302 (2004) (“People’s state constitutional right to due process does not ‘trump’ provisions of [the] state Constitution’s ‘newsperson’s shield’ provisions.”); Fost v. Superior Court, 80 Cal. App. 4th 724, 731, 95 Cal. Rptr. 2d 620 (2000) (“[T]he virtually absolute protection provided under the shield law need never yield to any superior constitutional right of the People.”) (quotation omitted).
The Colorado Press Shield Law is a qualified privilege. Gordon v. Boyles, 9 P.3d 1106 (Colo. 2000). The law states that "no newsperson shall, without such newsperson's express consent, be compelled to disclose, be examined concerning refusal to disclose, be subject to any legal presumption of any kind, or be cited, held in contempt punished, or subjected to any sanction" for refusing to disclose information obtained while "acting in the capacity of a newsperson." C.R.S. § 13-90-119(2). The Shield Law does not apply where the news information: a) was received at a press conference; (b) has actually been published or broadcast through a medium of mass communication; (c) was based on a news person's personal observation of the commission of a crime if substantially similar news information cannot reasonably be obtained by any other means; and (d) was based on a news person's personal observation of the commission of a class 1, 2, or 3 felony. Id.
The qualified privilege can be defeated where the person seeking the information can prove by a preponderance of the evidence: "(a) That the news information is directly relevant to a substantial issue involved in the proceedings; (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 news person outweighs the interests under the first amendment to the United States Constitution of such news person in not responding to a subpoena and of the general public in receiving news information." C.R.S. § 13-90-119(3). See Brokers’ Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1142-43 (10th Cir. 2014) (discussing that the qualified privilege protects confidential information, but it is a shield and not a sword).
The privilege can be asserted regarding both confidential and non-confidential information in both civil and criminal cases. C.R.S. § 13-90-119(1)(b), (e). The corollary statute addressing governmental and administrative proceedings also applies to both confidential and non-confidential information. See generally, C.R.S. § 24-72.5-101, et seq.
The protection against disclosure of sources and news or information is a qualified privilege under D.C. federal case law. E.g., Hutira v. Islamic Republic of Iran, 211 F. Supp. 2d 115, 118 (D.D.C. 2002) (qualified First Amendment privilege may be overcome by a sufficient showing from the party seeking the information). The D.C. Circuit has stated that if a federal common law privilege were to exist, it would be similarly qualified. In re Miller, 397 F.3d 964 (D.C. Cir. 2005), opinion superseded by 438 F.3d 1141 (D.C. Cir. 2006).
The First Amendment privilege afforded to reporters is a qualified privilege; it is not absolute.
The statutory privilege is limited to information obtained within the scope of the reporter's professional activities. 10 Del. C. §§ 4321, 4322. "Professional activities" may include social gatherings, § 4320 (7), but do not include instances of intentional concealment of the reporter's identity as a reporter, or instances wherein the reporter personally witnesses or participates in acts of physical violence or property damage. Id.
A claim of privilege may be successfully challenged in several ways:
- If the reporter concealed her identity, or was eyewitness to or participant in the act, the privilege does not apply. Id. But see, e.g., Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376, 2378 (Del. Super. 1994) (applying the privilege to "out takes" of television news camera footage of a live event); State v. Hall, 16 Med. L. Rptr. 1414 (Del. Mun. Ct. Mar. 8, 1989) (quashing subpoena ad testificandum when reporters attended a rally in their official capacities and personally witnessed the disorderly conduct in question); State v. Cordrey, C.A. No. 88-07-0000A, Barbiarz, J. (Del. Super. Sept. 28, 1988) (Transcript) (finding a qualified privilege attaches "[e]ven though no confidential sources are involved").
- In nonadjudicative hearings, both content and source are unequivocally protected, so long as they were obtained within the scope of professional activities. See 10 Del. C. §§ 4321, 4320 (7).
- In an adjudicative context, a reporter may be required to testify to the content of information, while the sources themselves remain protected. 10 Del. C. § 4323 (a). The threshold issue is whether disclosing the content would reveal the source of the information. This appears to be the case whether the information would directly or implicitly identify the source of the information. If disclosure would not reveal the source, the judge uses a balancing test to determine whether that the public interest in disclosure outweighs the public interest in confidentiality. § 4323 (a).
- If the untruthfulness of the reporter's claim is demonstrated by a preponderance of the evidence in an adjudicative hearing, the reporter must testify, disclosing both source and content. 10 Del. C. § 4323 (b); see also §§ 4322 (noting the adjudicative context and oath requirement), 4320 (6) (defining "testimony" as giving testimony, providing tangible evidence, submitting to a deposition, or answering interrogatories).
District of Columbia
The privilege against compelled disclosure for news media sources is absolute, regardless of whether the source was promised confidentiality. D.C. Code § 16-4702(1). The privilege against compelled disclosure of news or information is qualified and may only be compelled if the person seeking the news or information can prove, by clear and convincing evidence, that: (1) the news or information is relevant to a significant legal issue before a judicial, legislative, administrative, or other body that has the power to issue a subpoena; (2) the news or information could not, with due diligence, be obtained by any alternative means; and (3) there is an overriding public interest in disclosure. D.C. Code § 4703; see also Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2381 (D.C. Super. Ct. 1999).
The statutory privilege in Florida is qualified in all cases. The privilege is qualified because it 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 recordings of crimes." § 90.5015(2), Fla. Stat. (2016). The Fifth District Court of Appeal of Florida has held that the words "of crimes" in the statute modify "physical evidence," "eyewitness observations" and "visual or audio recordings." See News-Journal Corp. v. Carson, 741 So. 2d 572, 574 (Fla. 5th DCA 1999); see also Smoliak v. Greyhound Lines, Inc., 33 Media L. Rep. 2452 (N.D. Fla. 2005) (applying Florida law) (privilege applies to journalist’s eyewitness observations because there was no indication that journalist observed commission of crime). Thus, the privilege should be read not to apply to physical evidence of crimes, eyewitness observations of crimes, or visual or audio recordings of crimes. The privilege does apply to information concerning crimes, and such information is subject to the balancing test. See id. The privilege is further qualified by the three-part test that allows litigants to defeat the privilege in certain circumstances. See § 90.5015(2), Fla. Stat..
Illinois reporters are entitled to a qualified privilege of confidentiality for any source of information utilized. People v. Pawlaczyk, 189 Ill. 2d 177, 724 N.E.2d 901 (2000). The Statute provides that “no court may compel any person to disclose the source of any information obtained by a reporter” except after application to the court for an order divesting the reporter of the qualified privilege. 735 ILCS 5/8-901; see, e.g., Simon v. Northwestern Univ., 321 F.R.D. 328, 330, 45 Media L. Rep. 1961 (N.D. Ill. 2017). The court will not order access to the information unless all other sources for obtaining the information have been exhausted and disclosure of the information sought is essential to the protection of the public interest. 735 ILCS 5/8-907(2).
Although the plain language of Section 8-907 reflects an intent to protect reporters, the Statute does not constitute an absolute or automatic ban on calling reporters to testify even if the trial court has complied with the divestment procedures set forth in Sections 8-904 and 8-907. People v. Palacio, 240 Ill. App. 3d 1078, 607 N.E.2d 135 (1993). For example, a reporter cannot claim the benefits of the reporter’s privilege if he was subpoenaed to testify in his own divorce case or in a civil case unconnected to his employment in which he was a party. Id.; see also Desai v. Hersh, 954 F.2d 1408, 1412 (7th Cir. 1992) (“granting an absolute privilege to journalists to maintain the confidentiality of their sources in a libel case is neither required or authorized”) (citing Herbert v. Lando, 441 U.S. 153, 170, 99 S.Ct. 1635, 1645 (1979)).
In Palacio, the court rejected the argument that mere assertion of the privilege made the procedural aspects of the reporter’s privilege statute applicable. 240 Ill. App. 3d 1078, 607 N.E.2d 135 (1993). The Statute “is not without its limits; it applies in circumstances in which someone seeks to compel a reporter to disclose the source of any information obtained by the reporter.” Id. at 1093-94, 607 N.E.2d at 1384. The court noted the appropriate concern was “about harassment of the press and efforts to disrupt a reporter’s relationship with its news sources.” Id., 607 N.E.2d at 1384.
As written, the Kentucky reporter’s shield statute, KRS 421.100, provides absolute protection against compelled disclosure of a reporter’s source. Branzburg v. Pound, 461 S.W.2d 345 (Ky. 1971), aff'd sub nom. 408 U.S. 665 (1972). In an unpublished decision, the Kentucky Court of Appeals held that the statute “grants immunity to news reporters who decline to disclose the source of information procured,” which presents “the legal impossibility of discovering the source of the information.” Jones v. Hannah, No. 2013-CA-000359-MR, 2015 Ky. App. Unpub. LEXIS 1, at *5 (Ky. App. Jan. 9, 2015). However, in a case concerning a criminal defendant’s access to evidence under “compulsory process” clause of the Sixth Amendment to the United States Constitution, Kentucky’s Supreme Court suggested (but did not hold) that, in certain circumstances, the protections of the reporter’s shield law may yield to a criminal defendant’s rights. Commonwealth v. Barroso, 122 S.W.3d 554, 561 (Ky. 2003).
The protection of Kentucky’s shield law, however, does not prevent a reporter from being compelled to disclose other information which would not identify a source. See KRS 421.100.
The reporter's privilege as recognized by the Louisiana federal and state courts is not absolute. See, e.g., Miller, 621 F.2d at 725; Selcraig, 705 F.2d at 792. According to the federal courts, the privilege at least as to confidential sources in civil cases may be overcome if the party seeking disclosure shows that the information is relevant, not available by alternative means and that the party has a compelling interest in the information. Miller, 621 F.2d at 726.
The Louisiana shield law defines a broader reporter's privilege, but one that is still conditional or qualified. See La. R.S. 45:1452, 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. When applying the constitutional standard, state courts must balance the "public interest in having all relevant testimony with the possible 'chilling effect' the disclosure will have on the freedom of the press and the ability to gather the news" when determining whether to require disclosure. Ridenhour, 520 So.2d at 376.
When confidential source information is requested, the court may grant an order requiring disclosure only if "the disclosure is essential to the public interest." La. R.S. 45:1453. While not absolute, this standard is stronger than the qualified privilege for unpublished information generally.
The privilege is qualified. The shield law, 16 M.R.S.A. § 61, provides that a judicial, legislative, administrative or other body with the power to issue a subpoena may not compel a journalist to testify about, produce or otherwise disclose or adjudge the journalist in contempt for refusal to testify about, produce or disclose:
A. The identity of a confidential source of any information;
B. Any information that could be used to identify a confidential source; or
C. Any information obtained or received in confidence by the journalist acting in the journalistic capacity of gathering, receiving, transcribing or processing news or information for potential dissemination to the public.
Notably, the statutory privilege only applies to confidential sources. A court may compel disclosure of the identity of a confidential source or information if the court finds, after the journalist has been provided notice and the opportunity to be heard, that the party seeking the identity of the source or the information has established by a preponderance of the evidence, in all matters, whether criminal or civil, that:
- The identity of the source or the information is material and relevant;
- The identity of the source or the information is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material to the claim or defense;
- The identity of the source or the information is not obtainable from any alternative source or cannot be obtained by alternative means or remedies less destructive of First Amendment rights; and
- There is an overriding public interest in the disclosure.
In addition, in a criminal investigation, there must be reasonable grounds to believe that a crime has occurred; and in a civil action or proceeding, there must be a prima facie cause of action. 61 M.R.S.A. 16(2).
With regard to non-confidential sources and information, the Maine Supreme Court has adopted the balancing test set forth in Justice Powell’s concurrence in Branzburg v. Hayes, 408 U.S. 665 (1972). See Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 596 (1st. Cir. 1980) (“[C]ourts must balance the potential harm to the free flow of information that might result against the asserted need for the requested information.”). In In re Letellier, 578 A.2d 722, 17 Media L. Rep. 2169 (Me. 1990), a criminal case, the Court stated it must strike "a proper balance" on a case-by-case basis "between freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct." Id. at 726 (deferring to the First Circuit’s analysis). The Court acknowledged that the assessment could be different in civil cases. Id. at 725 n.7.
Absolute -- Md. Cts. & Jud. Proc. Code Ann. § 9-112(c)(1) -- The reporter's statutory privilege is absolute in precluding the compelled disclosure of "the source of any news or information procured by the person while employed by the news media or while enrolled as a student, whether or not the source has been promised confidentiality."
Qualified -- Md. Cts. & Jud. Proc. Code Ann. § 9-112(d)(1) -- Pursuant to state statute, a court may compel disclosure of news or information listed under § 9-112(c)(2) if the court finds that the party seeking disclosure "has established by clear and convincing evidence that (i) [t]he news or information is relevant to a significant legal issue before any judicial, legislative, or administrative body, or anybody that has the power to issue subpoenas; (ii) [t]he news or information could not, with due diligence, be obtained by any alternate means; and (iii) [t]here is an overriding public interest in disclosure."
As interpreted in Michigan law, there is a qualified privilege for some unpublished information. The Michigan Court of Appeals has held that the material must be confidential to be eligible for the qualified privilege. In re Photo Mktg. Ass’n Int’l, 120 Mich. App. at 531. However, the statutory privilege given to journalists to resist grand jury and prosecutor's investigatory subpoenas is nearly absolute. MCL 767.5a; MCL 767A.6(6).
In line with the opinions from the Fifth Circuit Court of Appeals and federal district courts in Mississippi, trial courts recognize a qualified privilege for reporters. "This privilege is not absolute." Brinston v. Dunn, 919 F. Supp. 240, 242 (S.D. Miss. 1996). No order has been found which recognizes an absolute privilege in the context of reporting.
NRS 49.275 provides for an absolute privilege, for both published and unpublished information. The news shield statute is not limited to confidential sources, but includes any source. The statute protects both the information obtained and the source of the information. However, the Nevada Supreme Court has stated that "although the news shield statute provides an absolute privilege to reporters engaged in the newsgathering process, there may be certain situations, e.g., when a defendant's countervailing constitutional rights are at issue, in which the news shield statute might have to yield so that justice may be served." Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 (2000); Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 129 Nev. 878, 313 P.3d 875, 879-80 (2013).
Although Opinion of the Justices declined to decide whether the privilege was absolute or qualified, 117 N.H. at 389, subsequent cases have established that the privilege is a qualified one. Siel, 122 N.H. at 259 (the New Hampshire Constitution "provides a qualified privilege for reporters").
The privilege is absolute in civil proceedings. Absent waiver a party to civil litigation may not obtain materials or testimony from a newsperson.
In criminal proceedings the privilege is not absolute, it may be overcome by a criminal defendant upon a showing of relevance, materiality, necessity, and unavailability from any other source.
The privilege embodied by Rule 11-514 is qualified in several ways. First, a radio station cannot take advantage of it unless the station “maintains and keeps open for inspection by a person affected by the broadcast, for a period of at least ... 180 ... days from the date of an actual broadcast, an exact recording, transcription, or certified written transcript of the actual broadcast.” Likewise, a television station seeking to qualify for the privilege must maintain for a full year – and must make available for inspection by any affected person during that time – “an exact recording or written transcript of the actual telecast.” Rule 11-514(B) NMRA.
More generally, “[t]here is no privilege under th[e] rule in any action in which the party seeking the evidence shows by a preponderance of evidence, including all reasonable inferences,” that
"(1) a reasonable probability exists that a news media person has confidential information or sources that are material and relevant to the action;
(2) the party seeking disclosure has reasonably exhausted alternative means of discovering the confidential information or sources sought to be disclosed;
(3) the confidential information or source is crucial to the case of the party seeking disclosure; and
(4) the need of the party seeking the confidential source or information is of such importance that it clearly outweighs the public interest in protecting the news media’s confidential information and sources."
Rule 11-514(C) NMRA.
As for the statutory privilege that apparently continues to govern nonjudicial proceedings, see supra pt. II(A), it gives way whenever “disclosure is essential to prevent injustice.” NMSA 1978, § 38-6-7(A), (C) (1973). In only one limited circumstance – requests for “film, videotape, still photographs or audio reproductions developed during or by virtue of coverage of a judicial proceeding” – do the media appear to enjoy an absolute privilege against disclosure, or at least against admission of the materials into evidence. See Rule 23-107(H) NMRA.
Subsection (b) of Civil Rights Law § 79-h provides an absolute privilege with respect to any information, including the identity of a source, conveyed to a reporter in confidence. The privilege applies with equal force in criminal and civil actions and in responding to grand jury subpoenas. Knight-Ridder Broad., Inc. v. Greenberg, 70 N.Y.2d 151, 518 N.Y.S.2d 595 (1987) (criminal investigation); Beach, 62 N.Y.2d 241 (grand jury subpoena); Flynn v. NYP Holdings, Inc., 235 A.D.2d 907, 652 N.Y.S.2d 833 (3d Dep't 1997) (reporters have unqualified protection from having to divulge confidential information and qualified privilege for nonconfidential information). A reporter may invoke the privilege regardless of whether he or she receives the information "passively" or receives it as a result of newsgathering efforts. See Civ. Rights § 79-h(b), (c); In re WBAI-FM, 42 A.D.2d 5, 8, 344 N.Y.S.2d 393, 395-396 (3d Dep't 1973) (Cook, J., dissenting).
Subsection (c) of the statute provides a qualified privilege for nonconfidential news, which can only be overcome by a "clear and specific" showing by the party seeking disclosure that the material sought (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source. See, e.g., O'Neill v. Oakgrove Const., Inc., 71 N.Y.2d 521, 527 (1988). The privilege applies with equal force to journalists' testimony and the production of materials. See Guice-Mills v. Forbes, 12 Misc.3d 852, 819 N.Y.S.2d 432 (N.Y. Sup. Ct. N.Y. Cty. 2006).
In any legal or quasi-judicial proceeding in North Carolina, a journalist has a qualified privilege against disclosure of any confidential or non-confidential information, document or item obtained or prepared while working as a journalist. N.C. Gen. Stat. § 8-53.11(b). This privilege is not absolute, but 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. N.C. Gen. Stat. § 8-53.11(c). However, no privilege exists for information or documents which result from a journalist's eyewitness observations of criminal or tortious conduct, including any recordings of the observed conduct. N.C. Gen. Stat. § 8-53.11(d).
The privilege is a qualified one. The only qualifying factor is whether nondisclosure of the protected information would result in a miscarriage of justice. Factors such as confidentiality, civil or criminal matter, etc., are to be weighed in order to determine whether disclosure is appropriate.
The statutory protection, while "absolute" in its terms, may potentially be overridden by a criminal defendant's Sixth Amendment rights.
A journalist’s right to protect the confidentiality of his confidential sources is a qualified right. In determining whether a journalist must divulge the name of a confidential source of information in a criminal proceeding, a court must balance the journalist’s First Amendment right against the defendant's Sixth Amendment right to a fair trial on a case-by-case basis. In re McAuley, 63 Ohio App.2d 5, 408 N.E.2d 97 (8th Dist. 1979); State v. Geis, 2 Ohio App.3d 258, 441 N.E.2d 803 (10th Dist. 1981). These cases generally frame the scope of the qualified constitutional protection in terms broader than those provided by the statutory shield law protection. In dicta, the Ohio Supreme Court discussed the qualified constitutional privilege in the context of a murder case and a trial court’s order to television stations to preserve broadcast tapes and outtakes. See State ex rel. National Broadcasting Company, Inc. v. Lake County Court of Common Pleas, 52 Ohio St.3d 104, 110-11, 556 N.E.2d 1120 (1990). The Ohio Supreme Court reasoned that Branzburg stands for the proposition that a court may enforce a subpoena in a criminal case over a reporter’s claim of privilege as long as the subpoena is issued for a legitimate purpose, and not for harassment. Id. at 110. The Court noted that if the subpoena is overbroad, the remedy is a motion to quash. Id. Despite the dicta in NBC, some Ohio courts continue to apply a balancing test. For example, in In re April 7, 1999 Grand Jury Proceedings, 140 Ohio App.3d 755, 760-61, 2000-Ohio-2552, 749 N.E.2d 325 (7th Dist.), the Seventh District Court of Appeals interpreted NBC as stating that “[b]y implication, the subpoena would be overbroad and violative of the statute if it threatens the disclosure of confidential sources.” The Seventh District held that “[a] balancing of these competing interests is necessary as reporters do not possess an absolute First Amendment right or an absolute statutory right to withhold or otherwise conceal the identity of confidential sources of information in light of ongoing criminal proceedings.” Id. at 761-62; see also State v. Anaga, Montgomery C.P. No. 90-CR-2578, 1991 WL 17185,18 Med.L.Rptr. 1527 (Jan. 3, 1991) (applying three-part test); State v. Daniel, 11th Dist. Trumbull No. 89-T-4214, 1990 WL 237188, (Dec. 31, 1990) (same).
The privilege under the statute is qualified. The privilege may be overcome by a clear and convincing showing that the identity of the source or the content of unpublished information is relevant to a significant issues in the action and cannot be obtained by alternative means. In Taylor v. Miskovsky, the court treated the statute as embracing the three-prong test outlined in Garland v. Torre, 259 F.2d 545 (2nd Cir.), cert. denied, 358 U.S. 910 (1958): The person seeking information from a journalist must demonstrate that the information is relevant to a significant issue in the case, goes to the heart of the claim or defense of the person seeking disclosure, and is not available through alternative means.
The reporter's privilege in Oregon is absolute except: a) with respect to the content or source of allegedly defamatory information in a civil action in which the defendant asserts a defense based on the content or source of such information; and b) in cases where criminal defendants have the right under Article 1, Section 11 of the Oregon Constitution to evidence that is material and favorable.
- Shield Law
Pennsylvania’s Shield Law sets forth an absolute privilege against compelled disclosure of the identity of a confidential source and information that would reveal a confidential source’s identity. See Castellani v. Scranton Times, L.P., 956 A.2d 937 (Pa. 2008); Commonwealth v. Bowden, 838 A.2d 740 (Pa. 2003).
- First Amendment privilege
The First Amendment reporter’s privilege is qualified. See Commonwealth v. Bowden, 838 A.2d 740 (Pa. 2003).
The privilege is qualified. See R.I. Gen. Laws § 9-19.1-3. The privilege does not apply if the information is already public, if the information is defamatory and the defendant is relying on the information as part of a defense, or if the information should remain secret because of grand jury proceedings. Id.
The privilege afforded by the Tennessee shield law is qualified. The privilege can be overcome by a showing, by clear and convincing evidence, that: (A) there is probable cause that the information sought is clearly relevant to a specific probably violation of law; (B) the information sought cannot be obtained by alternative means; and (C) there is a compelling and overriding public interest in the information. Tenn. Code Ann. § 24-1-208(c)(2). All three of these elements must be proven "by clear and convincing evidence" by the party seeking to obtain testimony from the journalist. Id.
The Texas Free Flow of Information Act (also known as a reporter’s privilege) is a qualified privilege as to civil subpoenas. The civil section 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 the following:
(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, is separated into three parts with different tests applying to different matters. See Tex. Code. Crim. Proc. art. 38.11. 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. Tex. Code Crim. Proc. art. 38.11, §§4(a)(1)-(3). 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. Id. Further, a journalist can be compelled to give up his or her confidential source if disclosure is reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm. Tex. Code Crim. Proc. art. 38.11, §4(a)(4).
With regard to unpublished materials (i.e., work product) and non-confidential sources in the criminal setting, the subpoenaing party must make a clear and specific showing that: (1) all reasonable efforts have been exhausted to obtain the information from alternative sources; (2) the information sought is relevant and material to the proper administration of the official proceeding and is essential to the maintenance of a claim or defense of the person seeking the information; and (3) the information sought is 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 has occurred. Tex. Code Crim. Proc. art. 38.11, §5(a). The court should also consider several other factors including the reasonableness, timely notice, the balancing of interests involved and the speculative nature of the subpoena when considering an order to compel testimony. Tex. Code Crim. Proc. art. 38.11, §5(b).
Published materials are not covered by the statute so one would look to common law with regard to those materials. Tex. Code Crim. Proc. art. 38.11, §8.
Under Rule 509, the reporter’s privilege is nearly absolute with regard to confidential source information, and a court can compel a reporter to disclose such 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). A qualified privilege protects unpublished information.
The privilege is qualified. Courts have adopted a three-part test to determine when the qualified privilege attaches. The test balances (1) whether the information is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information. Marathon Res. Mgmt. Grp., LLC v. Fresh Cuts Lawn Care, Inc., No. CL19-5973, 104 Va. Cir. 266 (Richmond Feb. 21, 2020); In re Multi-Jurisdictional Grand Jury, 64 Va. Cir. 423 (Chesterfield 2004); Clemente v. Clemente, 56 Va. Cir. 530 (Arlington 2001); Philip Morris Cos. v. Am. Broad. Co., 36 Va. Cir. 1, 18 (Richmond 1994); Horne v. WTVR, LLC, 893 F.3d 201 (4th Cir. 2018); Ashcraft v. Conoco, Inc., 218 F.3d 282 (4th Cir. 2000); Church of Scientology Int’l v. Daniels, 992 F.2d 1329 (4th Cir. 1993); LaRouche v. Nat’l Broad. Co., 780 F.2d 1134 (4th Cir. 1986); Alexis v. Kamras, No. 3:19CV543, 2020 WL 2616705 (E.D. Va. May 22, 2020); Gilbertson v. Jones, Civil No. 3:16cv255 (REP), 2016 WL 6518659 (E.D. Va. Sept. 22, 2016); Federico v. Lincoln Military Hous., LLC, No. 2:12-CV-80, 2014 WL 3962823 (E.D. Va. Aug. 13, 2014); Hatfill v. N.Y. Times Co., 459 F. Supp. 2d 462, 466-67 (E.D. Va. 2006); Hatfill v. N.Y. Times Co., 242 F.R.D. 353 (E.D. Va. 2006).
In Washington State, under the common law, a party seeking to compel discovery of confidential information from a journalist in a civil action must show that (1) the claim is meritorious; (2) the information sought is necessary or critical to the cause of action or defense pleaded; and (3) he or she made a reasonable effort to obtain the information by other means. Senear, 97 Wn.2d at 155; Clampitt, 98 Wn.2d at 642. A similar test pertained to criminal cases. Rinaldo, 102 Wn.2d at 755.
Trial courts in Washington, at least one unpublished decision by the Court of Appeals, and a federal district court have recognized a similar, conditional privilege for a journalist's non-confidential materials, consistent with the Ninth Circuit's tests as articulated in Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993), and Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995). Citing Shoen, a court in the Western District of Washington denied a motion to compel production of communications between a newspaper and the plaintiffs, despite the defendants' assertion that the reporter had "overstepped the bounds of journalism" when he provided information to the plaintiffs, finding that the privilege still applied and the defendants failed to fully pursue information from alternative sources. Wright v. Fred Hutchinson Cancer Research Ctr., 206 F.R.D. 679, 680-82 (W.D. Wash. 2002).
Section 1(a) of the shield statute provides for absolute protection for confidential source information, and Section 1(b) provides for a qualified privilege for other "news or information obtained or prepared by the news media." See RCW 5.68.010(1).
The reporters' privilege is a qualified one in West Virginia, under both the constitutional protections articulated in Hudok and the protections of the Reporter’s Privilege statute, W.Va. Code § 57-3-10. However, the standard for overcoming the statutory privilege from compelled disclosure of the identity of a confidential source (or information that would identify a confidential source) is different from the constitutional and common law privilege applied to all other information acquired by the reporter in the news-gathering process. If the information sought from a reporter concerns a confidential source, the statutory reporter’s privilege applies and may be overcome only upon a showing that such testimony or information is necessary to prevent imminent death, serious bodily injury or unjust incarceration. Thus, although the privilege in West Virginia against compelled disclosure of the identity of a confidential source is not absolute, the qualified protection afforded such information in civil cases under the reporters’ privilege statute, W.Va. Code § 57-3-10, is extremely strong.
Apart from the identity of confidential sources, under Hudok the level of protection for a reporter’s news-gathering information, whether the information was published or unpublished, generally is high. It can be overcome only upon a showing, made "clearly and specifically," that the information sought from the reporter is (1) "highly material and relevant, necessary or critical to the maintenance of the case"; and (2) "not obtainable from other available sources." 389 S.E.2d at 191. Thus, the general burden on a party in a civil case seeking information from a non-party reporter is very high.
Under Hudok, the reporter’s privilege protection is somewhat less strong where the reporter is named as a defendant in a civil case and is alleged to have committed libel.
Also pursuant to Hudok, unlike the strong protections in most civil cases, the reporter’s privilege protection is lower in a criminal proceeding if unpublished, nonconfidential information is sought. While there is no West Virginia caselaw directly on point, language in the Hudok case suggests reporters have very little, if any, protection from compelled disclosure of such information when subpoenaed to testify before a grand jury, at least in instances, "where the reporter has personal knowledge or is aware of confidential sources that bear on the criminal investigation[.]" 389 S.E.2d at 193. Nevertheless, because the West Virginia Supreme Court of Appeals never has been presented that issue directly, the level of protection afforded reporters in West Virginia grand jury proceedings (where information other than that related to a confidential source is concerned) still may be an open question.
The shield law prohibits the issuance of any subpoena compelling a “news person” to testify about, produce, or disclose confidential information obtained or prepared through his or her newsgathering activities. Wis. Stat. § 885.14(2)(a). This absolute protection applies to three categories of confidential information: “The identity of a confidential source of any news or information,” “[a]ny information that would tend to identify the confidential source of any news or information,” or “[a]ny news or information obtained or prepared in confidence by the news person.” Wis. Stat. § 885.14(2)(a)1.–3.
All other newsgathering information enjoys a qualified—but still very strong—protection. Specifically, the shield law strictly limits the circumstances under which a subpoena can be issued for any “news” or “information,” or the “identity of any source of any news or information,” that falls outside the statute’s three categories of confidential information. Wis. Stat. § 885.14(2)(a)(4). Such a subpoena can be issued only by a court following notice and an opportunity to be heard by the news person and the satisfaction of a rigorous multi-part test by the person requesting the subpoena. Wis. Stat. § 885.14(2)(b)–(c).
Wyoming has no state shield law or reported case decisions establishing a reporter’s privilege under the state constitution or statutory law. Under federal law, as established by the Tenth Circuit, a news person has a qualified privilege for confidential information in a civil case. Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1997). The privilege in regard to non-confidential information in a civil case is unclear.