B. State constitutional provision
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). Alabama, Florida, and Georgia are the states within the Eleventh Circuit.
Although each state in the Third Circuit has a provision in its state constitutions protecting the freedom of the press, see Del. Const. art. I, § 5; N.J. Const. art. I, § 6; Pa. Const. art. I, § 7, none of those states have recognized a newsperson’s privilege arising from those provisions.
California’s shield law is codified in its state constitution: Article I, section 2, subdivision (b) of the California Constitution mirrors California Evidence Code section 1070 discussed above. Shaklee Corp. v. Gunnell, 110 F.R.D. 190, 192 n.1 (N.D. Cal. 1986) (stating that the reporter’s privilege in article I, section 2(b) of the California Constitution is nearly identical to California’s shield law in California Evidence Code section 1070).
All other states within the Ninth Circuit do not contain shield provisions in their state constitutions. However, in Idaho, the most prominent decision acknowledging a qualified reporter’s privilege found a basis for that privilege in Article I, Section 9 of the Idaho Constitution, the state’s “free speech/free press” provision. In re Wright, 700 P.2d 40, 41 (Idaho 1985).
Alabama has not adopted a reporter's privilege based on the Alabama Constitution, but Article I, Section 4 provides a basis for the argument that the Alabama Constitution provides such a privilege. The preamble and Article I, Section 4 state:
That the great, general, and essential principles of liberty and free government may be recognized and established, we declare:
That no law shall ever be passed to curtail or restrain the liberty of speech or of the press; and any person may speak, write, and publish his sentiments on all subjects being responsible for the abuse of that liberty.
ALA. CONST. of 1901, art. I, § 4.
The Alaska Constitution has no express shield law provision, and the Alaska courts have not had occasion to construe article I, section 5 of the Alaska Constitution, the state's analogue to the First Amendment, or other constitutional provisions, in light of a reporter's privilege claim.
The Arizona Constitution does not have an express shield law provision, and one has not been implied from its free speech provision. That provision, Article II, § 6 of the Arizona Constitution, states: "Every person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right." On occasion, the Arizona Supreme Court has given broader scope to Article II, § 6 than to the First Amendment. See, e.g., Mountain States Telephone and Telegraph Co. v. Ariz. Corp. Commission, 160 Ariz. 350, 354, 773 P.2d 455, 469 (1989) (striking down under Article II, § 6 an administrative order that required a telephone company to limit access to "Scooplines" – the precursor to 1-900 numbers – only to customers who had pre-subscribed for such services); Phoenix Newspapers v. Superior Court, 101 Ariz. 257, 259, 418 P.2d 594, 596 (1966) (Article II, § 6 protected reporters from contempt proceedings arising from their violation of a gag order in a criminal murder case; "[t]he words of the Arizona Constitution are too plain for equivocation. The right of every person to freely speak, write, and publish may not be limited."). The Court has instructed that when both the Arizona and U.S. Constitutions apply to the facts of a case, and Article II of the Arizona Constitution is sufficient to resolve the dispute, there is no need to "reach the further question presented concerning the application of the First and Fourteenth Amendments." Phoenix Newspapers, 101 Ariz. at 259, 418 P.2d 596.
Nevertheless, no reported decision has applied Article II to a dispute involving the reporter's privilege. Indeed, in Reinstein, the Court of Appeals declined to consider this issue. 240 Ariz. at 448 n.2, 381 P.3d at 242 n.2 (“But because we resolve this issue on the narrow ground of the First Amendment, we need not reach the Arizona Constitution.”).
The Arkansas Constitution does not contain an express reporters' shield privilege. The Declaration of Rights, Ark. const., art 2, § 6, states in part:
The liberty of the press shall forever remain inviolate. The free communication of thoughts and opinions is one of the invaluable rights of man; and all persons may freely write and publish their sentiments on all subjects, being responsible for the abuse of such right.
The only reported case addressing the Arkansas constitutional free press provision in the context of a reporter's shield was a federal case applying federal law; the court held that Art. 2, § 6 did not shield a news organization from having to turn over video footage and transcripts to a federal grand jury. See In re Grand Jury Subpoena Am. Broad. Co. Inc., 947 F. Supp. 1314 (E.D. Ark. 1996) (holding that state law privileges do not apply to a federal grand jury subpoena).
Some state trial courts have recognized, under the state and federal constitutions, a qualified privilege in favor of the media engaged in the newsgathering process, which shields materials from subpoena absent a showing by the party seeking disclosure that 1) the materials are relevant to a claim or defense in the litigation, 2) there is a compelling need for disclosure necessary to override the constitutional protection, and 3) the information is unavailable from any other source that does not place the same chill on the freedom of the press. See Order, State v. Bernard, No. 94-2133 (Pulaski County Cir. Ct., 2d Div., Feb. 21, 1995); Order, First Commercial Trust v. Aldridge, No. 94-3006 (Pulaski County Cir. Ct., 2d Div., Dec. 12, 1994); Order, State v. Echols, No. CR 93-450A (Craighead County Cir. Ct., Mar. 11, 1994).
In 1980, California voters elevated the reporter’s privilege to the state Constitution. “The proposition incorporated language virtually identical to section 1070 into the California Constitution, article I, section 2, subdivision (b).” Delaney v. Superior Court, 50 Cal. 3d 785, 796, 789 P.2d 934, 268 Cal. Rptr. 753 (1990). It provides:
(b) 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, shall not be adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for refusing to disclose 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.
Nor shall 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.
As used in this subdivision, “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. Const. art. I, § 2(b). This provision was enacted by an overwhelming majority of California voters (4,340,108 to 1,575,486). The pamphlet that accompanied this proposed amendment explained:
The free flow of information to the public is one of the most fundamental cornerstones assuring freedom in America. Guarantees must be provided so that information to the people is not inhibited. However, that flow is currently being threatened by actions of some members of the California Judiciary. They have created exceptions to the current Newsman’s Shield Law, which protects the confidentiality of reporters’ news sources. And the use of confidential sources is critical to the gathering of news. Unfortunately, if this right is not protected, the real losers will be all Californians who rely on the unrestrained dissemination of information by the news media.
This amendment merely places into the state’s Constitution protection already afforded journalists by statute. That law, enacted in 1935, in clear and straightforward language, provides that reporters cannot be held in contempt of court for refusing to reveal confidential sources of information. At least six reporters in California in recent years have spent time in jail rather than disclose their sources to a judge. By giving existing law constitutional status, judges will have to give the protection greater weight before attempting to compel reporters to breach their pledges of confidentiality.
A reporter’s job, of course, is not to withhold information, but to convey it to the public. In most cases, a reporter is able to reveal corruption and malfeasance within government only with the help of an honest employee. If such an individual feels that a reporters’ pledge of confidentiality may be broken under the threat of jail, that person simply will not come forward with his or her information.
If our democratic form of government – of the people, by the people, for the people – is to survive, citizens must be informed. A free press protects our basic liberties by serving as the watchdogs of our nation. Citizens may agree or disagree with reports in the media, but they have been informed, and the final choice is made by the individual.
To jail a journalist because he protected his source is an assault not only on the press but on all Californians as well.
Ballot Pamp., Proposed Amends. to Cal. Const. with arguments to voters, Primary Elec. (June 3, 1980) p. 19 (italics in original). Some California courts have explained that the amendment was intended to overrule Rosato v. Superior Court, 51 Cal. App. 3d 190, 124 Cal. Rptr. 427 (1975) and Farr v. Superior Court, 22 Cal. App. 3d 60, 99 Cal. Rptr. 342 (1971), both of which affirmed orders compelling reporters to divulge sources of information regarding pending criminal trials. E.g., Liggett v. Superior Court, 260 Cal. Rptr. 161, 168 (Cal. Ct. App. 1989) (unpub. dec.); Delaney v. Superior Court, 249 Cal. Rptr. 60, 65 (Cal. Ct. App. 1988) (unpub. dec.).
California courts have recognized the significance of elevating the privilege from a statute to the Constitution. As one court explained:
The elevation to constitutional status must be viewed as an intention to favor the interest of the press in confidentiality over the general and fundamental interest of the state in having civil actions determined upon a full development of material facts.
[ ¶ ... ]
It has long been acknowledged that our state Constitution is the highest expression of the will of the people acting in their sovereign capacity as to matters of state law. When the Constitution speaks plainly on a particular matter, it must be given effect as the paramount law of the state.
Playboy Enters., Inc. v. Superior Court, 154 Cal. App. 3d 14, 27-28, 201 Cal. Rptr. 207 (1984).
California cases reflect a deference to the shield law as a result of its constitutional status. For example, in New York Times Co. v. Superior Court, 51 Cal. 3d 453, 796 P.2d 811, 273 Cal. Rptr. 98 (1990), the California Supreme Court held that a civil litigant seeking information from a non-party journalist has no interests sufficient to overcome the constitutional reporter’s privilege. Id. at 456. Similarly, in Miller v. Superior Court, 21 Cal. 4th 883, 986 P.2d 170, 89 Cal. Rptr. 834 (1999), the state Supreme Court held that a prosecutor in a criminal action has no interests sufficient to overcome the reporter’s privilege. Id. at 901. As the Court explained in Miller, “the absoluteness of the immunity embodied in the shield law only yields to a conflicting federal or, perhaps, state constitutional right.” Id.
Colorado Courts have acknowledged that the Colorado constitution provides more protection for free speech rights than the First Amendment to the U.S. Constitution. See, e.g., Brock v. Westminster Mall Co., 819 P.2d 55, 59 (Colo. 1991); People v. Seven Thirty-Five East Colfax, Inc., 697 P.2d 348, 356 (Colo. 1985).
Article II, Section 10 of the Colorado constitution provides that "[n]o law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty . . . "
The expanded free speech rights of the Colorado constitution, however, did not yield additional shield law privileges for the media. See Colorado Criminal Practice and Procedure, Vol. 15 (1996), Dieter, § 19.25. Prior to enactment of the Shield Law, the Colorado Supreme Court declined to recognize a privilege implicit in the constitution. Gagnon v. District Court In & For Cty. Of Fremont, 632 P.2d 567, 569 (Colo. 1981): Pankratz v. District Court In & For City & Cty. Of Denver, 609 P.2d 1101, 1103 (Colo. 1980) ("We also decline to create such a testimonial privilege for news reporters" under the Colorado constitution).
Connecticut's constitution has no express shield law provision, nor has one been read into it by a state court.
Del. Const. Art. I, § 5
5. Freedom of press; evidence in libel prosecutions; jury questions
Section 5. The press shall be free to every citizen who undertakes to examine the official conduct of persons acting in a public capacity; and any citizen may print on any subject, being responsible for the abuse of that liberty. In prosecutions for publications, investigating the proceedings of officers, or where the matter published is proper for public information, the truth thereof may be given in evidence; and in all indictments for libels the jury may determine the facts and the law, as in other cases.
Amended by 72 L.1999, ch. 136, § 4, eff. June 24, 1999.
Article I, sec. 4 of the Florida Constitution is the state law counterpart to the U.S. Constitution's First Amendment. This provision may be cited generally in support of the existence of a constitutional journalist's privilege. There is no provision in the Florida Constitution that specifically addresses the journalist's privilege.
The Georgia Constitution does not have an express shield law provision. Prior to the enactment of the shield statute, the Georgia Supreme Court declined to interpret the State Constitution as affording reporters a privilege in the context of grand jury testimony. See Vaughn v. State, 259 Ga. 325 (1989) (interpreting Branzburg v. Hayes, 408 U.S. 665 (1972) as affording no relief to a reporter subject to a grand jury subpoena and "declin[ing] to interpret the Constitution of Georgia to afford any greater right") (1989).
The Hawai'i State Constitution does not contain a shield provision. Moreover, no state court has construed the state constitution to confer the type of protection provided by a shield statute. However, Article I, Section 4 of the Hawai'i State Constitution parallels the First Amendment of the federal Constitution. Article I, section 4 provides:
No law shall be enacted respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press or the right of the people peaceably to assemble and to petition the government for a redress of grievances.
Haw. Const. art. I, § 4. No state court has construed article I, section 4 to create a privilege from testifying in a judicial proceeding.
There is no express shield law type language in the Idaho Constitution. However, the Idaho Constitution has been relied upon in the most significant Idaho decision recognizing a limited reporter’s privilege. In In re Wright, 108 Idaho 418, 700 P.2d 40 (1985), three of the four justices in the majority agreed that Art. 1, § 9 of the Idaho Constitution provides a basis for the reporter’s privilege. Art. 1, § 9 is the “free speech/free press” provision of the state constitution. Even so, the discussion of the state constitution's support for the privilege has been cryptic and primarily is premised upon its similarity to the language of the First Amendment in the federal constitution.
Although the Illinois State Constitution does not contain express language establishing a reporter’s privilege, it does guarantee freedom of the press in article 1, section 4. In drafting the Statute, the Illinois legislature incorporated these free press guarantees. See People ex. rel. Scott v. Silverstein, 89 Ill. App. 3d 1039, 1042, 412 N.E.2d 692 (1980), rev’d in part on other grounds, 87 Ill. 2d 167, 429 N.E.2d 483 (1981), Villeda v. Prairie Material Sales Inc., 17 Media L. Rep. 2289, 2293 (Ill. Cir. Ct. 1990).
Article I, section 9 of the Indiana Constitution provides: “No law shall be passed, restraining the free interchange of thought and opinion, or restricting the right to speak, write, or print, freely, on any subject whatever: but for the abuse of that right, every person shall be responsible.”
The Indiana Constitution does not contain an express shield law provision, nor has one been read into any constitutional provision by a state court. In In re WTHR-TV (State v. Cline), the Supreme Court of Indiana specifically declined to recognize a newsgatherer’s privilege under Article I, section 9 in the context of a criminal case, at least on the facts presented therein. 693 N.E.2d at 15–16.
Iowa's reporter's privilege law is based, in part, upon the Iowa Constitution article I, § 7. Winegard, 258 N.W.2d at 852. Article I, § 7, states:
"Every person may speak, write, and publish his sentiments on all subjects, being responsible for the abuse of that right. No law shall be passed to restrain or abridge the liberty of speech, or of the press. In all prosecutions or indictments for libel, the truth may be given in evidence to the jury, and if it appears to the jury that the matter charged as libelous was true, and was published with good motives and for justifiable ends, the party shall be acquitted."
In holding that the reporter's privilege is constitutionally based, the Iowa Supreme Court cited United States Supreme Court cases that recognized freedom of speech and freedom of the press, as guaranteed by the First Amendment, are fundamental personal rights. Winegard, 258 N.W.2d at 850 (citing Branzburg v. Hayes, 408 U.S. 665, 1 Med. L. Rptr. 2617 (1972); Schneider v. State of New Jersey, 308 U.S. 147 (1939)). After finding that a reporter's privilege existed, mostly having referenced the United States Constitution, the Iowa Supreme Court cursorily mentioned that their analysis of the federal law was equally applicable to article I, § 7, of the Iowa Constitution. Winegard, 258 N.W.2d at 852. See also Michael A. Giudicessi, Independent State Grounds for Freedom of Speech and of the Press: Article 1, Section 7 of the Iowa Constitution, 38 Drake L. Rev. 9, 26–28 (1988). No express shield law provision exists in the Iowa Constitution.
The Louisiana constitutional reporter's privilege is derived from Article 1, Section 7 of the Louisiana Constitution. This Section, entitled Freedom of Expression, is closely related to the First Amendment to the U.S. Constitution. Section 7 provides: "No law shall curtail or restrain the freedom of speech or of the press. Every person may speak, write, and publish his sentiments on any subject, but is responsible for abuse of that freedom." La. Const. art. 1, § 7.
In In re Grand Jury Proceedings (Ronald Ridenhour), the Louisiana Supreme Court found the state and federal Constitutional guarantees to be equivalent. "For purposes of this issue [reporter's privilege], we will consider the two constitutions together. The information is either protected by both or not protected by either." 520 So. 2d at 374 n.10. Ridenhour found that the state and federal constitutional reporter's privilege applied to unpublished information prior to the enactment of the statutory reporter's privilege for unpublished information.
The Maine Supreme Court has not recognized state constitutional protection for journalist’s sources. The Court held that “. . . we can find no basis in language or history to differentiate a claim of privilege under the Maine Constitution from a claim of privilege advanced under the First Amendment.” In re Letellier, 578 A.2d 722, 726, 17 Media L. Rep. 2169 (Me. 1990). The Court rested its decision on the provisions of the First Amendment of the United States Constitution, not Article I, § 4 of the Maine Constitution, which provides that "no laws shall be passed regulating or restraining the freedom of the press."
Md. Dec. of R. Art. 40 (2001) -- WBAL-TV Division, The Hearst Corp. v. State, 477 A.2d 776, 10 Media L. Rep. 2121 (Md. 1984) -- The court assumed, but did not decide that Article 40 of the Maryland Declaration of Rights gives members of the news media a constitutionally-based qualified privilege to withhold unpublished material obtained during the newsgathering process from prosecutorial summons. Court applied essentially the same test as that codified in Maryland's shield law, Md. Cts. & Jud. Proc. Code Ann. §9-112. See also, Prince George's County v. Hartley, 822 A.2d 537, 31 Med. L. Rep. 1679 (Md. App. 2003), refusing to determine whether a state constitutionally-based privilege exists.
The Massachusetts courts do not currently recognize a reporter's privilege based in the Massachusetts State Constitution. Commonwealth v. Corsetti, 438 N.E.2d 805, 808 (Mass. 1982). See also Ayash v. Dana-Farber Cancer Inst., 706 N.E.2d 316, 319 (Mass. App. Ct. 1999).
The Minnesota Supreme Court has declined to apply the state constitution as a source for a reporter's privilege, for the same reasons it found no protection under the First Amendment, at least in criminal cases where the reporter is asked to testify to events personally witnessed or to produce unpublished photographs. State v. Turner, 550 N.W.2d 622, 628 (Minn. 1999). The Turner court stated, "This court has once before refused to interpret [the state constitution's] language to provide greater protection to reporters than the First Amendment, and we do so again today."
However, Minnesota state courts continue to recognize some degree of constitutional protection for journalist's sources and materials, and the state constitutional protection is co-extensive with the federal level of protection. Bauer v. Gannett Co., Inc. (KARE 11), 557 N.W.2d 608, 610 (Minn. Ct. App. 1997), overruled to the extent inconsistent with Weinberger v. Maplewood Rev., 668 N.W.2d 667 (Minn. 2003); see also Weinberger, 668 N.W.2d at 672, n.5 ("We do not address that issue because neither party has properly put that issue before the court, and it was not considered by the district court."); Turner 550 N.W.2d at 629 (requiring in camera review of journalist's unpublished photos before disclosure compelled).
Section 13 of Article 3 of the Mississippi Constitution provides in relevant part: "The freedom of speech and of the press shall be held sacred . . . ." One trial court order has cited to this section of the state constitution as a source of a journalist's qualified right against compelled disclosure. Hawkins v. Williams, Hinds County Circuit Court, No. 29,054 (March 16, 1983). In a libel action against a newspaper and its reporter, not a reporters' privilege case, the Mississippi Supreme Court commented that the State's constitutional safeguard "appears to be more protective of the individual's right to freedom of speech than does the First Amendment since our constitution makes it worthy of religious veneration." Gulf Publishing Co., Inc. v. Lee, 434 So. 2d 687, 696 (Miss. 1983).
Article I, section 8 of the Missouri Constitution, in similar fashion to the First Amendment to the United States Constitution, provides:
[N]o law shall be passed impairing the freedom of speech, no matter by what means communicated: that every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject, being responsible for all abuses of that liberty; and that in all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and in suits and prosecutions for libel the jury, under the direction of the court, shall determine the law and the facts.
This provision provides a basis for beginning the argument in Missouri that a reporter’s privilege should attach to the identity of sources used in the preparation of stories. However, no Missouri case has discussed in detail the application of this constitutional provision to the issue, but simply noted its existence.
In the Adams case the reporter raised state and federal constitutional issues. The Montana Supreme Court held that they could not be determined unless the district court first examined the subpoenaed material for relevancy and privilege. The Montana Constitution does provide for freedom of speech, expression and the press, in Article II, §7, and also contains a strong protection of the public's right to know, which is found at Article II, §9.
In the Slavin case the shield law was attacked on constitutional bases. In that case the criminal defendant had subpoenaed a reporter and editor who had interviewed the complaining witness and written an article that contained statements from the complainant that were helpful to the defendant. The journalists moved to quash their subpoenas immediately before the trial, and the district court did so on the basis of the Media Confidentiality Act. The defendant was convicted and appealed on the grounds that his right to present witnesses in his defense had been violated, contrary to the Sixth Amendment and the Montana Constitution. The Montana Supreme Court denied the appeal. It held that if there were any error it was harmless, since the evidence was presented to the jury through other means, including the admissions of the complaining witness and the article itself.
A nearly identical set of facts was presented in the Kolb case, in which the defendant subpoenaed a reporter who had interviewed the plaintiff for a newspaper article. Kolb sought to present evidence, through the reporter, that the plaintiff had made an inconsistent statement about the type of gun used in the robbery at issue. Kolb argued his right to a fair trial was compromised by his inability to compel the reporter’s attendance. As in Slavin, the district court avoided the constitutional issue and quashed the subpoena based on the Media Confidentiality Act. The district court found there was another way for Kolb to get the information he sought into evidence. Since the evidence was otherwise available, no constitutional analysis was triggered. The Montana Supreme Court upheld the denial on the same basis.
In the Ditton case, a pro-se litigant challenged the constitutionality of the Media Confidentiality Act after he sought to subpoena a crime reporter for the Bozeman Daily Chronicle who had written two articles about his DUI arrest that quoted police officers. Ditton claimed that he needed the reporter’s testimony to impeach the officers’ testimony against him. The newspaper filed a motion to quash the subpoena based on the Media Confidentiality Act. In quashing the subpoena, the district court held the Media Confidentiality Act clearly prohibited the compelled testimony of the reporter. Ditton argued to the Montana Supreme Court that the district court’s ruling constituted "harmful error" because it denied him his Sixth Amendment right to confront the witnesses against him and his due process rights under the Fourteenth Amendment. The Montana Supreme Court found the denial of Ditton's subpoena was, at best, harmless error because both of the newspaper articles were admitted into evidence and the officers and witnesses who testified provided ample evidence to support Ditton's conviction. Unlike Slavin and Kolb however, this opinion is non-citable.
Nevada's Constitution does not have an express shield law provision. Article I, section 9 of the Nevada Constitution provides the following:
Every citizen may freely speak, write and publish his sentiments on all subjects being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press. In all criminal prosecutions and civil actions for libels, the truth may be given in evidence to the Jury; and if it shall appear to the Jury that the matter charged as libelous is true and was published with good motives and for justifiable ends, the party shall be acquitted or exonerated.
It does not appear that the Nevada Supreme Court has considered a news shield law question under the state constitution.
The Court in Opinion of the Justices, 117 N.H. 386 (1977), a civil case, and State v. Siel, 122 N.H. 254 (1982), a criminal case, stated that the qualified privilege is based on Part I, article 22 of the New Hampshire Constitution, which reads: “Free speech and Liberty of the press are essential to the security of Freedom in a State: They ought, therefore, to be inviolably preserved.”
In Opinion of the Justices, 117 N.H. 386, 373 A.2d 644 (1977), the Court was asked whether the Senate, in a statutory proceeding to remove the sitting Director of Probation, could compel a reporter to disclose the sources of information that he used in preparing a series of articles criticizing the Department of Probation. It stated:
Our constitution quite consciously ties a free press to a free state, for effective self-government cannot succeed unless the people have access to an unimpeded and uncensored flow of reporting. News gathering is an integral part of the process.
* * *
We hold only that in this civil proceeding involving the press as a nonparty, the balance is struck in favor of the press. See N.H. Const. pt. 1, art. 22. We need not decide the scope of the privilege, whether it is absolute, who is a reporter, what qualifies as 'press,' what the situation would be if criminal proceedings were at issue, or whether libel actions would require disclosure.
117 N.H. at 389.
Five years later, the Court held that the qualified privilege applies in criminal cases where the reporter asserted the privilege to protect confidential sources. State v. Siel, 122 N.H. 254, (1982); The privilege did not apply where a reporter sought to protect public information. State v. Gibson, 170 N.H. 316 (2017) (statements made by the defendant during an interview). Nor did it apply in a libel case brought by a public official where the "sources are essential to a libel plaintiff's case." Downing v. Monitor Publishing Co., Inc., 120 N.H. 383 (1980). But the privilege did apply in a case where an online publisher sought to protect the identity of the source of a “loan chart” prepared by the plaintiff. Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., 160 N.H. 227, 237 (2010). The other questions deferred by the Court in Opinion of the Justices have remained unanswered.
Although the state constitution contains a strong freedom of the press section the courts have never found a newsperson's privilege originating in the state constitution.
The New Mexico Constitution does not expressly set forth a reporter’s privilege. On the other hand, New Mexico courts have ruled in other contexts that article II, § 17 of the state constitution – which provides that “[e]very person may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right,” and that “no law shall be passed to restrain or abridge the liberty of speech or of the press” – is more protective of speech than is the First Amendment to the federal Constitution. City of Farmington v. Fawcett, 114 N.M. 537, 546-47, 843 P.2d 839, 848-49 (Ct. App.), cert. denied, 114 N.M. 82, 835 P.2d 80 (1992).
The New York State Constitution does not contain an express Shield Law provision. However, New York courts have recognized that both the State Constitution's article I, § 8 guarantee of a free press and the First Amendment provide at least a qualified privilege against compelled disclosure of both confidential and nonconfidential material by a reporter. In O'Neill, 71 N.Y.2d at 524, 527-28, the Court of Appeals held that both Article I, § 8 of the New York Constitution and the First Amendment "provide a reporter's privilege which extends to confidential and nonconfidential materials and which, albeit qualified, is triggered where the materials sought for disclosure -- the photographs here -- was prepared or collected in the course of newsgathering." The court further stated, "[W]e have no difficulty in concluding that the guarantee of a free press in article I, § 8 of the New York Constitution independently mandates the protection afforded by the qualified privilege to prevent undue diversion of journalistic effort and disruption of press functions." Id.
The Court of Appeals also noted that the protection afforded the press under the New York State Constitution is often broader than the minimum required by the First Amendment, stating that Article I, § 8 of the state constitution "assures, in affirmative terms, the right of our citizens to 'freely speak, write and publish' and prohibits the use of official authority which acts to 'restrain or abridge the liberty of speech or of the press'." Id. at 529 n.3 (emphasis in original).
The State Constitutional protection was also recognized in Beach, 62 N.Y.2d at 251-52, where the Court of Appeals held that the Shield Law protects journalists from compelled disclosure of their sources, even when the revelation of the information to the reporter may itself be a crime. In his concurrence in that case, Judge Wachtler noted that the protection from compelled disclosure is not merely statutory, stating: "In my view, therefore, protection from contempt for refusal to disclose a source is not merely a privilege granted to the press by the Legislature, but is essential to the type of freedom of expression traditionally expected in this State and should be recognized as a right guaranteed by the State Constitution." Id. at 256 (Wachtler, J., concurring).
The North Carolina Constitution contains no explicit shield law provision. However, Article I, Section 14 of the State Constitution contains protections of freedom of speech and freedom of the press:
Freedom of speech and press. Freedom of speech and of the press are two of the great bulwarks of liberty and therefore shall never be restrained, but every person shall be held responsible for their abuse.
Various North Carolina trial courts have recognized that a journalist's testimonial privilege is based, in part, on Article I, Section 14 of the North Carolina Constitution. See Higgins v. Young, 29 Media L. Rep. 2528 (N.C. Superior Ct. 2001) (stating that N.C. Gen. Stat. § 8-53.11 codified the common law reporter's privilege under, inter alia, Article I, Section 14 of the North Carolina Constitution; quashing defendant's subpoena of newspaper reporter in civil case seeking testimony concerning three published articles); State v. McLeod Oil Co., 34 Media L. Rep. 1703 (N.C. Superior Ct. 2006) (quashing subpoena seeking copy of interview broadcast on radio); State v. Peterson, 31 Media L. Rep. 2501 (N.C. Superior Ct. 2003) (quashing subpoena seeking notes or memoranda that would reflect contact between law enforcement officials and members of the news media); State v. McKillop, 24 Media L. Rep. 1638 (N.C. Dist. Ct. 1995) (quashing subpoena by prosecutor in criminal case seeking testimony of newspaper reporter concerning statements made by defendant accused of operating a sexually oriented business within 1,000 feet of a residence); State v. Wallace, 23 Media L. Rep. 1473 (N.C. Superior Ct. 1995) (protecting journalist's confidential police sources from disclosure in change of venue hearing in criminal case where defendant was charged with the murder of ten women over a two-year period); State v. Demery, 23 Media L. Rep. 1958 (N.C. Superior Ct. 1995) (quashing defense subpoena in criminal case seeking reporter's testimony concerning telephone interview with defendant accused of murdering James Jordan, Michael Jordan's father); State v. Smith, 13 Media L. Rep. 1942 (N.C. Superior Ct. 1987) (quashing defendant's subpoena in criminal case seeking testimony of reporter concerning his investigation concerning theft of narcotics from a State Bureau of Investigation laboratory); Locklear v. Waccamaw Siouan Dev. Ass'n, 12 Media L. Rep 2391 (N.C. Superior Ct. 1986) (quashing plaintiff's subpoena in civil case seeking newspaper reporter's testimony in order to impeach testimony given by the chairman of defendant's board of directors in breach of contract claim); Johnson v. Skurow, 10 Media L. Rep. 2463 (N.C. Superior Ct. 1984) (quashing plaintiff's subpoena in civil case seeking testimony of newspaper reporter concerning his investigation of the incident giving rise to the lawsuit and to verify the accuracy of certain statements by several witnesses which were printed in a published news article); State v. Hagaman, 9 Media L. Rep. 2525 (N.C. Superior Ct. 1983) (quashing defendant's subpoena in criminal case seeking testimony of newspaper reporter concerning confidential source in murder case); Chappell v. Brunswick Bd. of Educ., 9 Media L. Rep. 1753 (N.C. Superior Ct. 1983) (quashing plaintiff's subpoena in civil case seeking a newspaper reporter's testimony and notes about her conversations with school board members concerning a teacher's firing by the board).
No state appellate court has explicitly ruled on whether or not the state constitution establishes a reporter's privilege. The Supreme Court, however, has affirmed without explanation or comment a Court of Appeals decision implicitly refusing to recognize a reporter's testimonial privilege based on the state constitution with respect to non-confidential information obtained from a non-confidential source in a criminal proceeding. In re Owens, 128 N.C. App. 577, 496 S.E.2d 592, 26 Media L. Rep. 1953 (1998), aff'd, 350 N.C. 656, 517 S.E.2d 605, 27 Media L. Rep. 2340 (1999). In Owens, the Court of Appeals rejected the reporter's argument that a trial court contempt order was invalid under the North Carolina Constitution, but, in doing so, the Court did not analyze the state constitution and did not explicitly hold that no privilege exists under the state constitution. As a result, reporters may still assert protection under the state constitution in instances where the shield law does not apply.
The North Dakota state constitution does not have an express shield law provision. The shield law is codified at N.D.C.C. § 31-01-06.2. There is no case law discussing reporter's privilege prior to the adoption of the current shield law. Since there is no constitutional provision on shield laws, there is no case law interpretation.
The Ohio Constitution, Article I, Section 11 states: "Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of the right; and no law shall be passed to restrain or abridge the liberty of speech, or of the press." While closely parallel to the language of the First Amendment to the United States Constitution, the state constitutional clause exists as an independent source of protection of free press rights. Scott v. News-Herald, 25 Ohio St.3d 243, 245, 496 N.E.2d 699 (1986).
The protection afforded under Article I, Section 11 of the Ohio Constitution is as broad as that provided by the First Amendment and may, in fact, provide even greater protection. Indeed, the state and federal constitutional provisions in question do not contain identical language. The language of Article I, Section 11 tracks the language of the First Amendment and then, significantly, adds the word "restrain." The inclusion of the word "restrain" in the state formulation should enhance the protection afforded the press. Any other interpretation would subordinate Ohio's Constitution to no more than a mirror image of the First Amendment, dependent for its interpretation upon the federal courts' views of free press protection. See, e.g., Scott, 25 Ohio St.3d 243; Vail v. Plain Dealer Publ’g Co., 72 Ohio St.3d 279, 1995-Ohio-187, 649 N.E.2d 182. But see State v. Jones, 12th Dist. Butler No. CA2005-06-136, 2005-Ohio-4192 (finding that the Ohio Constitution does not provide more protection than the First Amendment in the context of a motion to quash a subpoena to a journalist).
In this regard, the United States Supreme Court, in discussing a reporter's privilege, recognized the merit of allowing states to "fashion their own standards in light of the conditions and problems" in their own areas. Branzburg v. Hayes, 408 U.S. 665, 706 (1972). The Branzburg Court followed this with an express acknowledgement of the power of state courts to construe ". . . their own constitutions so as to recognize a newsman's privilege, either qualified or absolute." Branzburg v. Hayes, 408 U.S. at 706.
Accordingly, arguments have been made and some courts have considered that a constitutional privilege protecting the editorial process, newsgathering processes and procedures and reporters from compelled disclosure exists under Article I, Section 11 of the Ohio Constitution. See e.g. Fawley v. Quirk, 9th Dist. Summit No. 11822, 11 Med.L.Rptr. 2336, 1985 WL 11006 (July 17, 1985) (holding that the privilege applies identities of nonconfidential sources but finding the privilege had been overcome); Schreiber v. Multimedia of Ohio, Inc., 41 Ohio App. 3d 257, 535 N.E.2d 357 (1st Dist. 1987); Slagle v. Coca Cola, 30 Ohio Misc.2d 34, 507 N.E.2d 794 (Montgomery County C.P. 1986); cf. State ex rel. National Broadcasting Co. v. Lake County Court of Common Pleas, 52 Ohio St.3d 104, 556 N.E.2d 1120 (1990).
Oklahoma does not have an express constitutional shield provision. Okla. Const. Art. 22, § 22 says in part that “Every person may freely speak, write, or publish his sentiments on all subjects, being responsible for the abuse of that right; and no law shall be passed to restrain or abridge the liberty of speech or of the press.” The Oklahoma Supreme Court has said generally that Oklahoma's “protection of free speech is far more broadly worded than the First Amendment's restriction on governmental interference with speech.” Gaylord Entertainment v. Thompson, 1999 OK 128, ¶ 13 n.23, 958 P.2d 128, 138 n.23 (emphasis by court). However, the Oklahoma Supreme Court has not decided whether the state constitutional provision affords protection to journalists, and Art. 22, § 22 was not mentioned in Taylor v. Miskovsky. Presumably, if the First Amendment shields a reporter, as recognized in Taylor, then the state constitutional provision would do so also.
Article I, §8 of the Oregon Constitution states that "no law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatever . . ."
Prior to the enactment of the media shield law, the Oregon Supreme Court held that reporters have no state constitutional right to refuse to testify as to the identity of a confidential source before grand juries. State v. Buchanan, 250 Or. 244, 436 P2d 729 (1968). The Court of Appeals dismissed a state constitutional basis for privilege where criminal defendants sought unpublished
Pennsylvania’s Constitution has no shield law provision. Although Pennsylvania’s Constitution protects every citizen’s right to “freely speak, write and print on any subject,” Pa. Const. art. I, § 7, Pennsylvania courts have not held that it protects reporters from disclosing their sources. See In re Taylor, 193 A.2d 181, 184 (Pa. 1963).
Rhode Island's Shield Law, or the Newsman's Privilege Act, is statutory. See R.I. Gen. Laws §§ 9-19.1-1 through 9-19.1-3.
In Outlet Communications, Inc. v. State, 588 A.2d 1050 (R.I. 1991), a television station filed a motion to quash a grand jury subpoena seeking the unaired portion of a filmed interview with a person wanted by state authorities in connection with an ongoing grand jury investigation. The Superior Court refused to accept the television station's claim that it enjoyed a state constitutional privilege against disclosure of the materials in question under article I, section 20, of the Rhode Island Constitution. Id. at 1052.
The South Carolina Constitution contains at Art. I, §2 a free press guarantee that has been described by the Supreme Court of South Carolina as protecting the same rights as are protected by the First Amendment to the United States Constitution. City of Rock Hill v. Henry, 244 S.C. 74, 135 S.E.2d 718 (1963), rev'd on other ground 376 U.S. 776 (1964). There is no shield law protection in the South Carolina Constitution.
In Hopewell v. Midcontinent Broadcasting Corp., the South Dakota Supreme Court did not refer to either state or federal constitutions. However, whatever protection the court accorded journalists presumably derives from both the First Amendment and the state's version, Article VI, §5.
The Tennessee Constitution does not contain an express shield law provision. Section 19 of the Tennessee Constitution, called the "Press Clause," provides:
Freedom of speech and press. - That the printing presses shall be free to every person to examine the proceedings of the Legislature; or of any branch or officer of the government, and no law shall ever be made to restrain the right thereof. The free communication of thoughts and opinions, is one of the invaluable rights of man, and every citizen may freely speak, write, and print on any subject, being responsible for the abuse of that liberty . . . .
Tennessee courts have focused on the shield law statute, Tenn. Code Ann. § 24-1-208, rather than this constitutional provision, in their discussion of the reporter's privilege.
There is no express shield law provision in the Texas Constitution. In pre-shield law cases, there was little constitutional protection found in case law; courts simply applied the same law to subpoenas to reporters as they did to any other subpoena.
Nevertheless, pre-shield law, some Texas courts did recognize a privilege. The Fifth Circuit recognized the privilege in Miller v. Transamerican Press, Inc., 621 F.2d 721 (5th Cir. 1980), modified on reh’g, 628 F.2d 932 (5th Cir. 1980), cert. denied, 450 U.S. 1041 (1981), stating:
We hold that a reporter has a First Amendment privilege which protects the refusal to disclose the identity of confidential informants.
Id. at 725; see also In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983) (holding Miller establishes the rule for the Fifth Circuit). Two Texas courts of appeals also recognized the privilege. See Dallas Morning News Co. v. Garcia, 822 S.W.2d 675 (Tex. App.—San Antonio 1991, orig. proceeding) (recognizing a qualified privilege under the First Amendment and Texas Constitution, art. I, § 8); Channel Two Television Co. v. Dickerson, 725 S.W.2d 470 (Tex. App.—Houston [1st Dist.] 1987, orig. proceeding) (same).
Under federal and Texas case authority, a few courts found that the requesting party’s burden was to make a clear and specific showing that (i) the information sought was highly material and relevant to the inquiry at hand; (ii) there was a compelling need for the information; and (iii) the information was not obtainable from other available sources. See, e.g., Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (5th Cir. 1980); Dallas Morning News Co. v. Garcia, 822 S.W.2d 675, 680 (Tex. App.—San Antonio 1991, orig. proceeding); Channel Two Television Co. v. Dickerson, 725 S.W.2d 470, 472 (Tex. App.—Houston [1st Dist.] 1987, orig. proceeding). This test was recognized and applied by the Houston First District Court of Appeals and the San Antonio Court of Appeals. In the libel context, the Texas Supreme Court has found that Article I, §8 of the Texas Constitution (the Texas counterpart to the First Amendment) does not contain any greater protection than the First Amendment. See Bentley v. Bunton, 94 S.W.3d 561, 578-79, 45 Tex. Sup. Ct. J. 1172 (Tex. 2002).
In the criminal context, the Texas Court of Criminal Appeals, which is the state’s highest criminal court, consistently held that there was no support in the Texas constitution for finding a reporter’s privilege in criminal cases. State ex. Rel. Healey v McMeans, 884 S.W.2d 772, 775 (Tex. Crim. App. 1994) (en banc); see also Ex Parte Groethe, 687 S.W.2d 736, 739-40 (Tex. Crim. App. 1984) (denying a reporter’s privilege where the reporter personally viewed the criminal activity, but implicitly leaving open the possibility of such a privilege in other circumstances). One criminal case that did find for the reporter, although not a reporter’s privilege, is Coleman v. State, 966 S.W.2d 525 (Tex. Crim. App. 1998) (en banc). In that case, the Court of Criminal Appeals ruled that failure to force a reporter to testify at the underlying criminal trial (based on the trial court’s grant of the reporter’s motion to quash based on a First Amendment privilege) did not cause a denial of compulsory process because the defendant failed to show the information would have been material and favorable to the defense.
Vermont’s Constitution provides in relevant part that: “the people have a right to freedom of speech, and of writing and publishing their sentiments, concerning the transactions of government, and therefore the freedom of the press ought not to be restrained.” Vermont Constitution, Chap. I, Art. 13.
There is no state constitutional provision expressly providing shield law protections in Washington State.
It may be significant, however, that Article 1, Section 5, of the Washington Constitution, which recognizes that the state's residents have a right to speak, write, and publish on all subjects, was copied directly from California Constitution, which was itself copied from New York's constitutional provision. See, e.g., Robert Utter, The Right to Speak, Write, and Publish Freely, 8 U. Puget Sound L. Rev. 157, 174-75 (1985); Los Angeles Alliance v. City of Los Angeles, 22 Cal.4th 352, 365-66, 93 Cal. Rptr.2d 1, 993 P.2d 334 (2000). Given this ancestry, one can argue that it creates a conditional privilege for journalists' non-confidential work product consistent with the protections that have been adopted in New York using the identical constitutional language. See, e.g., O'Neill v. Oakgrove Constr., Inc., 71. N.Y.2d 521, 523 N.E.2d 277, 528 N.Y.S. 1 (1988).
Indeed, one Washington court has suggested that the state constitution's explicit protection of the right to "write" (which necessarily encompasses the gathering of news) in addition to the right to "publish" suggests an intention to create a broader right than is available under the First Amendment. See State v. Rinaldo, 36 Wn. App. 86, 91-102, 673 P.2d 614 (1983), aff'd on other grounds, 102 Wn.2d 749, 689 P.2d 392 (1984); Note, Rethinking Civil Liberties Under the Washington Constitution, 66 Wash. L. Rev. 1099, 1103 (1991).
The statutory protections for reporters articulated in the West Virginia Reporter’s Privilege Statute (W.Va. Code § 57-3-10) expand upon constitutional protections articulated earlier in West Virginia caselaw. While the West Virginia Constitution does not contain an explicit reporter’s "shield" or privilege law provision, in the case of Hudok, the Supreme Court of Appeals of West Virginia articulated a qualified privilege for reporters, citing Article III, § 7 of the West Virginia Constitution, in addition to the First Amendment to the United States Constitution and the Branzburg standard, as the bases for the qualified reporter's privilege. Article III, § 7 of the West Virginia Constitution states, in pertinent part:
"No law abridging the freedom of speech, or of the press, shall be passed."
The Wisconsin Constitution does not include an express shield law provision, but it does provide that “no laws shall be passed to restrain or abridge the liberty of speech or of the press.” Wis. Const. art. I, sec. 3. State courts have read a qualified reporter's privilege into this provision of the Wisconsin Constitution. See Zelenka v. State, 266 N.W.2d 279, 286-87 (Wis. 1978); State ex rel. Green Bay Newspaper Co. v. Circuit Court, 335 N.W.2d 367, 372 (Wis. 1983); Kurzynski v. Spaeth, 538 N.W.2d 554, 557 (Wis. Ct. App. 1995). To apply the qualified constitutional privilege, Wisconsin courts balance the freedom of the press “against a compelling and overriding public interest in the information sought.” Zelenka, 266 N.W.2d at 287. The statutory protection afforded by Wisconsin’s shield law is much stronger than the qualified constitutional privilege.
Article 1, Section 20 of the Wyoming Constitution states: “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” The provision has not been interpreted by the courts in regard to its effect on any reporter’s privilege. A federal district court has found that the state constitutional provision is broader than that found in the First Amendment to the U.S. Constitution as it also guarantees the right to publish. Tate v. Akers, 409 F. Supp. 978 (D. Wyo. 1976) aff’d 565 F.2d 1166 (10th Cir. 1977). No state court has confirmed this interpretation by the federal court, and exactly how this broader right might affect the reporter's privilege in Wyoming is yet to be tested.
The Wyoming Supreme Court has ruled that any recourse to the Wyoming Constitution as an independent source for recognizing or protecting an individual right, such as freedom of speech or the press, “must spring from a process that is articulable, reasonable, and reasoned.” Saldana v. State, 846 P.2d 604, 621 (Wyo. 1993). In other words, a party must articulate specifically why the state constitutional provision should be held to provide a more comprehensive or broader right than does the federal constitution. That process in regard to freedom of the press has not yet been undertaken in Wyoming.
In the context of public access to governmental information, the Wyoming Supreme Court has cited federal precedents for the proposition that news gathering is not without First Amendment protections and that “without some protection for seeking out the news, freedom of the press could be eviscerated.” Sheridan Newspapers v. City of Sheridan, 660 P.2d 785, 794 (Wyo. 1983). The scope of that protection in regard to subpoenas of news organizations awaits further development.