C. Federal constitutional provision
The First Amendment is the basis of the reporter’s privilege doctrine as recognized by the Fifth Circuit’s Miller decision, relying upon Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646 (1972), and is still binding precedent within the Eleventh Circuit. Price v. Time, Inc., 416 F.3d 1327 (2005).
In Branzburg, five justices agreed that the First Amendment does not protect reporters from having to testify before grand juries. Branzburg, 408 U.S. at 690. In his concurring opinion in Branzburg, however, Justice Powell left open the possibility that journalistic privilege might be warranted in certain cases involving “legitimate First Amendment interests.” Id. at 710 (Powell, J., concurring). Whether those interests exist, he wrote, depends on balancing the “freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.” Id.
The privilege is grounded in First Amendment concerns rather than federal common law.
The Third Circuit recognized a qualified reporter's privilege derived from the First Amendment in Riley, 612 F.2d 708.
The First Amendment is the basis of the reporter’s privilege doctrine. In Branzburg, five justices agreed that the First Amendment does not protect reporters from having to testify before grand juries. Branzburg, 408 U.S. at 690. In his concurring opinion in Branzburg, however, Justice Powell left open the possibility that journalistic privilege might be warranted in certain cases involving “legitimate First Amendment interests.” Id. at 710 (Powell, J., concurring). Whether those interests exist, he wrote, depends on balancing the “freedom of the press and the obligation of all citizens to give relevant testimony with respect to criminal conduct.” Id.
Alabama courts recognize a qualified reporter's privilege under the First Amendment to the United States Constitution; however, there is not a significant amount of case law that discusses the scope of the privilege. When considering whether the qualified privilege protects a newspaper reporter's unpublished testimony and documents, an Alabama court held that the following three-part test must be satisfied: 1) The reporter must have information highly relevant to a claim or defense in the underlying litigation; 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 the information 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). At least one court in another jurisdiction has also acknowledged that Alabama law provides a qualified reporter's privilege under the First Amendment to the United States Constitution. See In re American General Life & Accident Ins. Co., No.: 107784/96, 26 Med. L. Rptr. 1606 (Bronx County, N.Y. Sup. Ct., Jan. 14, 1996).
Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege (though the issue has been raised as a point on appeal once or twice). However, a number of trial courts have applied a qualified reporter's privilege based on the First Amendment to the United States Constitution. In each case where it has been addressed, the court has accepted the privilege. See, e.g., Nebel v. Mapco Petroleum, 10 BNA Media L.Rptr. 1871, 1872 (Alas. Super. Ct., 4th Jud. Dist. 1984) (recognizing reporter's privilege, and quashing subpoena pursuant thereto, based on First Amendment and state shield law, and awarding attorney's fees), State v. Pruett, Case No. 3AN-84-3887 Cr., 11 BNA Media L.Rptr. 1968 (Alas. Super. Ct., 3d Jud. Dist., 1984), aff'd. Pruett v. State, MO&J No 1474 (Alaska App., September 2, 1987)[N.B. Alaska court rules generally do not allow reliance on MO&Js] (court quashed subpoena issued on behalf of criminal defendant, finding that defendant had not overcome press's qualified constitutional privilege) U.S. v. Smith, (federal court tax evasion case with pro per defendant); see also, Management Information Technologies, Inc. v. Alyeska Pipeline Services Co., 151 F.R.D. 471 (D.D.C. 1993) (a case brought by oil industry critic Charles Hammel against oil company consortium, security firm and others who spied on him and set up phony environmental law firm to entrap him, tried in the District of Columbia, with press interests represented by the author, after subpoena to a former Anchorage Daily News reporter in connection with reporting done while in Alaska). Ellis v. Coleman, Case No. 95A-0367 Civ. (personal injury suit in U.S. Dist. Ct.); State v. Kelly, (first reporter's privilege case in Alaska, in 1978, criminal fraud case); Dansereau v. Coghill, Case No. 3AN-94-10948 Civ. (election related litigation), State v. Tetlow, Case No. 3AN-S01-3356 Cr.; In The Matter of the January 1996 Grand Jury; Case No. 4FA-S96-45 Cr. (4th Jud. Dist., Fairbanks) (grand jury subpoena).
In Bartlett, the Arizona Court of Appeals recognized a qualified First Amendment privilege for the protection of confidential information. Based on its analysis of Branzburg v. Hayes, 408 U.S. 665 (1972), the court wrote: "[T]he claim of privilege depends, in the first instance, upon the existence of a confidential relationship such that compliance with a subpoena would either result in disclosure of confidential information or sources or would seriously interfere with the news gathering and editorial process." 150 Ariz. at 182, 722 P.2d at 350. However, the court held that the constitutional privilege did not apply to a videotape copy of a news report that had been broadcast to the public and reviewed on request by counsel for the party who subpoenaed the tape. Id.
In Matera, the court agreed with Bartlett's "assessment of the reporter's privilege as it exists in Arizona." 170 Ariz. at 450, 825 P.2d at 975. It then held that information gathered by an author working on a book about an undercover informant who participated in a "sting" operation was not protected because disclosure would not have revealed confidential sources or information, or impeded the process of newsgathering. Id. The court wrote: "Matera has not, and cannot, claim that the subpoena in this case would cause him to reveal confidential sources or information, nor would the subpoena impede the gathering of information. It is only those limited situations that are protected by Arizona's qualified reporter's privilege as codified [in the Arizona Shield Law]." Id.
After Bartlett and Matera were decided, the Ninth Circuit recognized that reporters in this Circuit have a strong qualified privilege under the First Amendment that protects both confidential and non-confidential journalistic work product. In Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995), the court held that a litigant seeking unpublished information must show that the material is: "(1) unavailable despite exhaustion of all reasonable alternative sources; (2) non-cumulative; and (3) clearly relevant to an important issue in the case." Shoen, 48 F.3d at 416. The privilege applies in civil and criminal cases, and evidence satisfying each prong of the test is necessary to compel production. Id. The Ninth Circuit has stated that the journalist's privilege cannot easily be defeated: "'[I]n the ordinary case the civil litigant's interest in disclosure should yield to the journalist's privilege. Indeed, if the privilege does not prevail in all but the most exceptional cases, its value will be substantially diminished.'" Id. (quoting Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981)).
After the Ninth Circuit decided Shoen, the Arizona Court of Appeals in the Reinstein decision tracked the Ninth Circuit’s reasoning and found that the First Amendment provides a qualified privilege for journalists in Arizona state court proceedings. 240 Ariz. at 448-49, 381 P.3d at 242-43.
No reported case in Arkansas has held that the United States Constitution creates a reporter's privilege. In a concurring opinion, an Arkansas Supreme Court justice, who is now a federal district judge in Arkansas, said that such a privilege should be read into the First and Fourteenth Amendments to the Constitution. See Saxton, 264 Ark. at 139-41, 569 S.W.2d at 119 (Howard, J., concurring). However, the Arkansas Supreme Court has not adopted this position. Federal courts determine whether the reporter's privilege is granted under the First Amendment according to the type of case. See, e.g., United States v. Hively, 202 F. Supp.2d 886, 890 (E.D. Ark. 2002) (refusing to recognize First Amendment reporter's privilege in grand jury criminal proceeding); Richardson v. Sugg, 220 F.R.D 343, 347 (E.D. Ark. 2004) (recognizing reporter's privilege in civil case under First Amendment); Singer v. Harris, 2016 WL 10459386, at *2, Case No. 4:15CV00408 BSM (E.D. Ark. May 16, 2016) (recognizing First Amendment reporter’s privilege).
In 1984, the California Supreme Court held that the First Amendment to the federal Constitution confers a qualified privilege on reporters. Mitchell v. Superior Court, 37 Cal. 3d 268, 690 P.2d 625, 208 Cal. Rptr. 152 (1984). The state Supreme Court held that courts should evaluate five factors in determining whether disclosure by a reporter should be compelled: (1) whether the reporter is a party to the litigation; (2) whether the information sought “goes to the heart of the [party]’s claim”; (3) whether the party seeking the information has exhausted all alternative sources; (4) the importance of protecting confidentiality, including whether the information “relates to matters of great public importance” and whether the risk of harm to the source is “substantial”; and (5) whether the party seeking disclosure has made a prima facie showing on its underlying claim. Id. at 279-83. A number of other cases have applied the qualified privilege, reaching different results regarding the protection afforded. E.g., O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 1466-79, 44 Cal. Rptr. 3d 72 (2006) (refusing to compel disclosure of confidential source information, largely because the journalists were not parties and the proponent had not exhausted alternative sources); Anti-Defamation League of B’nai B’rith v. Superior Court, 67 Cal. App. 4th 1072, 1095-97, 79 Cal. Rptr. 2d 597 (1998) (compelling disclosure of some unpublished information because it “might lead to admissible evidence” and other Mitchell factors satisfied); Dalitz v. Penthouse Int’l, Ltd., 168 Cal. App. 3d 468, 479, 214 Cal. Rptr. 254 (1985) (compelling disclosure of confidential sources in defamation case because need for disclosure was “compelling”); KSDO v. Superior Court, 136 Cal. App. 3d 375, 386, 186 Cal. Rptr. 211 (1982) (refusing to compel disclosure of unpublished information because of alternative source of information); Star Editorial, Inc. v. United States District Court, 7 F.3d 856, 859-62 (9th Cir. 1993) (applying California law) (compelling disclosure of confidential sources where their identity “goes to the heart of the claim”).
In Gagnon and Pankratz, supra, the Colorado Supreme Court declined to find the existence of a First Amendment reporter's privilege. In Pankratz, for example, the court stated, "Pankratz asserts that such a [reporter's] privilege exists under the First Amendment to the United States Constitution and under Article II, Section 10 of the Colorado Constitution. We do not agree that Pankratz had such a privilege under the circumstances of this case." Pankratz, 609 P.2d at 1102.
In Gordon v. Boyles, 9 P.3d 1106 (Colo. 2000), however, the Colorado Supreme Court acknowledged that First Amendment interests are implicated "when a newsperson is compelled to disclose confidential news information." Id., 9 P.3d at 1116. The Boyles court cited significant portions of Justice Stewart's dissent in Branzburg v. Hayes, 408 U.S. 665 (1972), (Stewart, J. dissenting) (the ability of the press to gather information by promising to keep the identities of their sources confidential is a crucial tool for the media).
The Gagnon and Pankratz decisions run contrary to the U.S. District Court of Colorado's holding in Re/Max International, Inc. v. Century 21 Real Estate Corporation, 846 F. Supp. 910 (D. Colo. 1994). Although this decision was issued after the state Shield Law had been enacted, there is no indication that the court had taken the law into consideration in its opinion. Without relying upon the Colorado Press Shield Law, a federal judge held that the First Amendment provides a qualified protection for newspersons from disclosure of information gathered while reporting. To overcome the newsperson's privilege in federal court under the First Amendment, the party seeking information from a reporter must show that (1) the information sought is centrally relevant, and (2) the information is unavailable from other sources. Re/Max, 846 F Re/Max, 846 P. Supp. 910. Supp. 910. The court quashed a subpoena to take the deposition of a reporter where the reporter's testimony had only de minimis impeachment value. Id.; see also Artes-Roy v. City of Aspen, 20 Media L. Rep. 1647 (D. Colo. 1992) (declining to rule whether Colorado Press Shield Law applies in federal civil rights action in federal court, but granting motion to quash subpoena on news persons where information sought could be obtained from parties associated with case).
In Connecticut State Board of Labor Relations v. Fagin, 33 Conn. Supp. 204, 370 A.2d 1095 (1976), the Superior Court, Connecticut's trial court, finding that "interpretations of federal constitutional provisions" by the Court of Appeals for the Second Circuit "are binding upon this court," recognized a "limited constitutional privilege of a newsman to withhold confidential sources," the substance of which was to be found in Baker v. F & F Investment, 470 F.2d 778 (2d Cir. 1972). See also Goldfeld v. Post Publishing, 4 Med. L. Rptr. 1167 (Conn. Super. Ct. 1978). Federal courts sitting in Connecticut, bound as they are by Second Circuit case law, have also recognized a First Amendment-based qualified reporters' privilege. S.E.C. v. Seahawk Deep Ocean Technology, Inc., 166 F.R.D. 268 (D. Conn. 1996); Driscoll v. Morris, 111 F.R.D. 459 (D. Conn. 1986). The trial court case of Rubera v. Post-Newsweek Stations, 8 Med. L. R. 2293 (Conn. Super. Ct.1982), denying the existence of a reporter's privilege, is aberrational.
The D.C. Circuit holds that the First Amendment confers on the news media a qualified privilege against compelled disclosure. “The First Amendment guarantees a free press primarily because of the important role it can play as a ‘vital source of public information.’ . . . But the press’ function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired. Compelling a reporter to disclose the identity of a source may significantly interfere with [the press’] news gathering ability.” Zerilli v. Smith, 656 F.2d 705, 710-11 (D.C. Cir. 1981) (citations omitted); Lee v. Dep’t of Justice, 413 F.3d 53, 59-60 (D.C. Cir. 2005).
Prior to, and even after enactment of Florida's shield law, a journalist's privilege existed in Florida under the authority of Branzburg v. Hayes, 408 U.S. 665 (1972), which found that a journalist's privilege exists under the First Amendment in some cases. See Morgan v. State, 337 So. 2d 951 (Fla. 1976). The privilege exists in the common law and constitutional law of Florida and embodies a recognition that protecting a free and unfettered press is a sufficiently compelling interest to justify depriving litigants of potential sources of information in many cases. See, e.g., State v. Davis, 720 So. 2d 220 (Fla. 1998); Tribune Co. v. Huffstetler, 489 So. 2d 722 (Fla. 1986).
In 1976, in light of Branzburg, Florida first afforded a qualified reporter's privilege. See Morgan v. State, 337 So. 2d 951 (Fla. 1976). In Morgan, the Florida Supreme Court adopted the balancing test set forth in Justice Powell's concurring opinion in Branzburg.
The statute, enacted in 1998, expressly provides that it does not supersede these traditional sources of the journalist's privilege. § 90.5015(5), Fla. Stat. (2016). Thus, advocates seeking to quash a subpoena to a reporter should cite the shield law, as well as the constitutional and common law bases for the privilege.
Georgia courts have refused to recognize a reporter's privilege under the First Amendment. See Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808, 810 (2001) (finding that "this argument has been considered and rejected by the United States Supreme Court”), cert. denied, 2002 Ga. Lexis 103 (2002), cert. denied, 537 U.S. 814 (2002).
In In re Goodfader, 45 Haw. 317, 367 P.2d 472 (1961), the Hawai'i Supreme Court held that a newspaper reporter did not have a right under the First Amendment to refuse to answer questions during a deposition regarding a confidential source of information. Although the court assumed that forced disclosure of a reporter's confidential source of information may constitute an impairment of the freedom of the press and impede the newsgathering process, the court turned to the discovery rules under the Hawai'i Rules of Civil Procedure ("HRCP") to determine whether journalists held an evidentiary privilege to refuse to disclose their confidential sources. The court declined to recognize such a privilege. Applying the Second Circuit's analysis in Garland v. Torre, 259 F.2d 545 (2d Cir. 1958), the court held that disclosure of the reporter's sources was of enough importance to the plaintiff's case as to warrant disregarding or overriding the reporter's claim of privilege.
The applicability of Goodfader today is questionable. Goodfader was decided before Branzburg v. Hayes, 408 U.S. 665 (1972), which has been recognized to establish a qualified reporter's privilege under the First Amendment. In an unreported decision, a state trial court questioned the applicability of Goodfader in light of federal decisions after Goodfader recognizing the reporter's privilege. Belanger v. City and County of Honolulu, Civil No. 93-4047-10 (Haw. 1st Cir. Ct. May 4, 1994). In Belanger, the court held that a qualified reporter's privilege barred the plaintiff in a personal injury lawsuit from obtaining discovery of unpublished photographs of an accident scene taken by a newspaper photographer. In so holding, the court noted that the plaintiff failed to demonstrate that the photographs were necessary or critical to her claim and or that the information was unavailable from other sources.
On the other hand, in Jenkins v. Liberty Newspapers Ltd., 89 Haw. 254, 262, 971 P.2d 1089, 1097 (1999), decided after Belanger, the Hawai'i Supreme Court quoted a passage from Cohen v. Cowles Media Co., 501 U.S. 663 (1991), which in turn cited Branzburg for the proposition that the First Amendment does not relieve a newspaper reporter of the obligation to respond to a grand jury subpoena and answer questions relevant to a criminal investigation, even though the reporter might be required to reveal a confidential source. Whether this indirect reference to Branzburg is authoritative, however, is questionable, especially given that the reporters' privilege was not asserted in Jenkins. Jenkins was a defamation action against a newspaper for publishing information contained in a petition for seizure of an insurance agency.
The federal district court in Hawai'i has recognized a limited First Amendment privilege for reporters not to disclose their sources. DeRoburt v. Gannett Co., 507 F. Supp. 880 (D. Haw. 1981). Whether the privilege applies depends on three factors: "(1) is the information relevant, (2) can the information be obtained by alternative means, and (3) is there a compelling interest in the information?" Id. at 886 (quoting Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (5th Cir. 1980)). DeRoburt was a libel action filed by a public official against a newspaper. The court held that although reporters had a conditional privilege not to disclose their sources, the enumerated factors favored requiring disclosure in this case. Refusal to comply with an order to disclose would lead to a presumption that the reporter had no source. The presumption may be removed by the reporter's disclosure of the sources at a reasonable time before trial.
Idaho initially rejected, and later recognized, a reporter's privilege based on the First Amendment. In Caldero v. Tribune Publishing Co., 98 Idaho 288, 562 P.2d 791 (1977), the Idaho Supreme Court announced that its reading of Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) was that “no newsman's privilege against disclosure of confidential sources founded on the First Amendment exists in an absolute or qualified version.” Caldero, 98 Idaho at 294, 565 P.2d at 797. In Caldero, the Idaho Supreme Court refused to recognize a privilege that would protect a reporter from disclosing confidential sources in a libel suit brought against the reporter and his newspaper by the subject of a story.
However, the absolutist position taken by the Caldero court was first softened and then somewhat repudiated by later, differently configured, panels of the Idaho Supreme Court. Three years later, in Sierra Life Ins. Co. v. Magic Valley Newspapers, Inc., 101 Idaho 795, 623 P.2d 103 (1980), the court stated that the Caldero holding still had validity in cases in which the unpublished or confidential information was sought from a media defendant that was a defendant in the lawsuit. Sierra Life, 101 Idaho at 800, 623 P.2d at 108. However, the court also instructed that some sort of judicial scrutiny of the attempted discovery was nonetheless required--beginning with answering the question of whether the subject of the discovery (in Caldero and in Sierra Life, the identity of unnamed sources) was relevant to the case. Sierra Life, 101 Idaho at 801, 623 P.2d at 109. In doing so, the Sierra Life court encouraged judicial scrutiny of the nature of the request, in order to weigh the interest of the press in maintaining the secrecy of the identity of confidential sources, but couched its ruling in the terms of a discovery “relevancy” requirement. The decision reads as though the court recognized the importance of the press interests, but was unwilling to overrule Caldero.
In 1983, the court again considered a reporter's privilege case, in which it again refused to apply the reporter's privilege to protect a reporter under contempt orders from a trial court for refusal to identify the identities of confidential sources and related unpublished information in a child custody/habeas corpus proceeding. Marks v. Vehlow, 105 Idaho 560, 671 P.2d 473 (1983).
In Marks, the court was preoccupied with the facts of the case, which involved a reporter's refusal to answer questions about the location of a child abducted by a parent in a custody dispute. In such a setting, the court ruled that the press interests were outweighed by the interests in ensuring the safety of the child and maintaining the sanctity of the writ of habeas corpus. In doing so, the court said that the relevancy and materiality considerations set out in Sierra Life still came into play, but the court also went further in endorsing a federal constitution based rationale for a reporter's privilege than it had done in the past, and said that it was in agreement with a statement in a federal circuit case that “[c]ompelling a reporter to disclose the identity of a source may significantly interfere with his newsgathering ability.” Marks, 105 Idaho at 568, 671 P.2d 473, 481.
Two years later, the court had a less factually troublesome case in which to consider the reporter's privilege. In In re Wright, 108 Idaho 418, 700 P.2d 40 (1985), a reporter was subpoenaed in a criminal case to testify about the identity of a confidential source interviewed in the course of writing an article about marijuana growers. The prosecution sought the reporter's testimony in order to obtain corroboration testimony against a defendant marijuana grower who had been charged based on the testimony of an accomplice. Under Idaho law, such corroboration testimony is a required element of the prosecution's burden of proof. In Wright, the Idaho Supreme Court again analyzed the potpourri of opinions in the Branzburg case, as it had done in Caldero. However, this time the court concluded that Branzburg did provide some First Amendment protection to news gathering and that the balancing test proposed by Justice Stewart in his Branzburg dissent was an appropriate starting point. Wright, 108 Idaho 418, 421, 700 P.2d 40, 43. The case was remanded to the trial court for scrutiny of the applicability of the privilege under Justice Stewart's Branzburg balancing test. Id., 108 Idaho at 423, 700 P.2d at 45. Importantly, the Wright court abandoned the attempt in earlier decisions to try to explain away the questionable holding in Caldero: “[to] the extent that Caldero holds that under no circumstances is there a qualified newsperson's privilege in Idaho which is protected by the First Amendment of the U.S. Constitution, we decline to follow it as precedent.” Wright, 108 Idaho at 422, 700 P.2d at 44.
In Branzburg v. Hayes, 408 U.S. 665 (1972), the Court found “merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards” with respect to a journalist’s privilege, including the relations between law enforcement and the press. 408 U.S. at 706. The Court added, “[I]t goes without saying, of course, that we are powerless to bar state courts from responding in their own way and construing their own constitutions so as to recognize a newsman’s privilege, either qualified or absolute.” Id. Most Illinois courts have not based their decisions regarding reporters’ privilege solely on the First Amendment of the U.S. Constitution. Instead, most Illinois courts rely on the Statute in determining whether to divest the reporter of the privilege. See Reitz v. Gordon, 26 Media L. Rep. 1447 (N.D. Ill. 1997) (stating that the scope of the Statute is “synonymous with the federal common law privilege arising from the First Amendment”); see also People v. McKee, 2014 IL App (3d) 130696 ¶ 11, 24 N.E.3d 75, 43 Media L. Rep. 1123 (2014) (“The purpose of the privilege is to assure reporters access to information, thereby encouraging a free press and a well-informed citizenry”) (quoting People v. Pawlaczyk, 189 Ill. 2d 177, 187, 724 N.E.2d 901 (2000)); People ex. rel. Scott v. Silverstein, 89 Ill. App. 3d 1039, 1043, 412 N.E.2d 692, 695 (1980) (Statute “reflects a paramount public interest in the maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters, an interest which has always been a principal concern of the First Amendment”); Cukier v. American Medical Ass’n, 259 Ill. App. 3d 159, 163, 630 N.E.2d 1198, 1200 (1994) (Statute “has evolved from a common law recognition that the compelled disclosure of a reporter’s sources could compromise the news media’s First Amendment right to freely gather and disseminate information”). Cf. Gutierrez v. Shafer, 9 Media L. Rep. 1054 (Ill. Cir. Ct. 1982) (quashing subpoena under the First Amendment instead of the Statute, holding that the privilege only protects against disclosure of sources and not the press).
In In re WTHR-TV (State v. Cline), decided in 1998, the Supreme Court of Indiana declined to recognize a privilege under the First Amendment of the U.S. Constitution in the context of a criminal case. 693 N.E.2d at 10–16. In the WTHR-TV case, the defendant accused of murder had been interviewed by a reporter while being held in jail. The media reporter was ordered to produce the videotapes of the interview, including outtakes. The court rejected the reporter’s contention that Branzburg v. Hayes, the last major U.S. Supreme Court case on the topic of the reporter’s privilege, required courts to recognize a constitutional privilege. Id. at 11–12. The court also dismissed all of the media’s arguments in favor of such a privilege, including reasoning based on the chilling effect subpoenas have on the media and the enhanced burden imposed by subpoenas to the media. Id. at 13–15; see also WTHR-TV (State v. Milam), 690 N.E. 2d 1174, 1176 (Ind. 1998) (balancing discovery considerations under the trial rules).
WTHR-TV (State v. Milam) was decided on the same day as WTHR-TV (State v. Cline). In WTHR-TV (State v. Milam), the defendant accused of murder filed a discovery request for “all news footage, aired and unaired” regarding the murder. The discovery request was held to lack particularity and any showing of possible materiality because defendant failed to explain what the media party had or might have had that was specifically relevant to the defense or preparation for trial. Id.
Both WTHR cases involved criminal matters. In an earlier case decided by the Indiana Court of Appeals, it can arguably be said that a qualified First Amendment privilege was recognized, in the context of a civil case. See In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146, 150–51 (Ind. Ct. App. 1986). There, the court held that a journalist’s photographs could not be compelled by subpoena unless (1) they were material and relevant to the action, (2) they were critical to a fair determination of the cause, and (3) the subpoenaing party had exhausted all other sources for the same information. Id. at 151.
Iowa’s reporter's privilege law is based, in large part, upon the United States Constitution’s First Amendment rights of freedom of speech and freedom of the press. Winegard, 258 N.W.2d at 849-51. In Winegard the Court quoted language from both Branzburg and Schneider approvingly. Id. No Iowa decisions have been filed in the wake of the developments in 2006 in the Judith Miller, Matthew Cooper, Wen Ho Lee and San Francisco Chronicle cases.
In Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977) (“Silkwood”), the Tenth Circuit recognized the existence of a qualified reporter’s privilege based on the First Amendment. A First Amendment-based qualified privilege was also recognized by the Kansas Supreme Court in In re Pennington, 224 Kan. 573, 581 P.2d 812 (1978), cert. denied, 440 U.S. 929 (1979).
Although the boundaries of the First Amendment-based qualified privilege described in the Kansas Supreme Court’s Pennington decision are difficult to identify, it is nevertheless prudent to preserve the common law privilege argument based on Pennington in state court proceedings, in addition to citing the Kansas shield law.
In Lexington Herald-Leader v. Beard, 690 S.W.2d 374 (Ky. 1984), the Kentucky Supreme Court followed the United States Supreme Court’s lead in Branzburg, 408 U.S. 665 (1972), and refused to recognize a reporter's privilege grounded in the First Amendment. See also Branzburg v. Meigs, 503 S.W.2d 748 (Ky. 1971).
The reporter's privilege originates in the First Amendment to the U.S. Constitution which was made applicable to the states by the Fourteenth Amendment. It provides that "Congress shall make no law 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." U.S. Const. Amend. I.
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 embraced the First Circuit's analysis in Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583 (1st. Cir. 1980). In that case, the First Circuit held that “courts must balance the potential harm to the free flow of information that might result against the asserted need for the requested information.” Id. at 596. The Maine Supreme Court referred to that holding in In re Letellier, 578 A.2d 722, 17 Med. L. Rptr. 2169 (Me. 1990), a criminal case in which the Court assessed reporters privilege by “balanc[ing] the competing societal and constitutional interests on a case-by-case basis, weighing any possible injury to the free flow of information against the recognized obligation of all citizens to give relevant evidence regarding criminal conduct." Id. at 726. In a footnote, the Court acknowledged that the assessment may be different in civil cases. Id. at 725 n.7.
U.S. Const. amend. I -- Tofani v. State, 465 A.2d 413, 425, 9 Media L. Rep. 2193 (Md. 1983) (holding that the First Amendment may not serve as a basis for refusing to testify before a grand jury, absent a showing that the jury acted in bad faith or outside the legitimate scope of its inquiry). See also, Prince George's County v. Hartley, 822 A.2d 537, 31 Med. L. Rep. 1679 (Md. App. 2003), refusing to decide whether there is a First Amendment-based privilege.
There is no basis for a reporter’s privilege in the federal constitution. The Supreme Court has stated that it “[does] not believe that the First Amendment creates at the level of constitutional doctrine an exception [for reporters] to the ‘long-standing principle that “the public . . . has a right to every man's evidence.’” In Re Roche, 411 N.E.2d 466, 473 (Mass. 1980), quoting from Branzburg v. Hayes, 408 U.S. 665, 688 (1972).
In Marketos v. American Employers Insurance Company, the Michigan court of appeals rejected a reporter’s privilege based upon the First Amendment. 185 Mich. App. 179, 196, 460 N.W.2d 272 (1990). However, the case has limited application due to its unique set of facts. The request was solely for unpublished photographs and the newspaper had, until just prior to litigation, made such photographs available upon request for a modest fee. Id. at 183. Furthermore, the newspaper did not present an affidavit describing the burdens a subpoena places on photographers or the newspaper. Id. at 196.
Michigan courts have declined to recognize a constitutional basis for objecting to subpoenas of reporters on several occasions. However, most court decisions regarding the subpoena of reporters follow the Branzburg formula: (1) the subpoena must seek highly relevant information; (2) there must not be another available source of the information; and (3) the court must consider the fallout from disclosure of a confidential source’s identity. Id. at 188 (citing Branzburg, 408 U.S. at 665). When such information is sought, more deference is given to confidential sources and source material than non-confidential sources or material. See McArdle v. Hunter, 7 Media L. Rep. 2294 (E.D. Mich. 1981) (finding that where confidential material is sought, the requesting party must demonstrate that the information is crucial to that party’s case).
Recognition of a reporter's privilege based upon the First Amendment varies between state and federal courts in Minnesota.
The Minnesota Supreme Court held in State v. Turner, 550 N.W.2d 622, 628 (Minn. 1996) that "no qualified constitutional privilege exists under the First Amendment that would protect reporters from compelled testimony in a criminal case." However, Minnesota state courts continue to recognize some degree of federal constitutional protection for journalist's sources and materials. 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).
Further, the Supreme Court appeared to backpedal from Turner's strong language in 2006, within the context of a lawyer disciplinary proceeding. In re Charges of Unprofessional Conduct, 720 N.W.2d 807 (Minn. 2006). The court there ultimately held that resolution of the case did not require it to decide whether a First Amendment journalist's privilege existed. 720 N.W.2d at 817. However, in reaching this conclusion, it left the door open to future recognition of the privilege. See generally 720 N.W.2d at 816ñ17. Journalists challenging a subpoena for privileged material (confidential sources or unpublished information) in Minnesota state court should rely primarily on the statutory privilege but also discuss the federal and common law privileges, both to preserve the issue on appeal and to inform judicial analysis of the statutory issue. See also Range Development Co. of Chisholm v. Star Tribune, 885 N.W.2d 500, 505 (Minn. App. 2016) (“We address the issues in this case — whether the district court erred by ordering disclosure of [the reporter’s] confidential source — within the framework of the [Minnesota Shield Law]. The interpretation of that statute presents a legal issue, which this court reviews de novo. . . . Weinberger, 668 N.W.2d at 671-72. We analyze the framework of the defamation exception by recognizing the relevance and probable-cause requirements of the act as interpreted in Weinberger and in light of Minnesota precedent addressing the intersection between defamation law and the First Amendment. Because our analysis in that regard is dispositive, we do not reach the issues of whether a First Amendment or common-law privilege exists. But because of the close relationship between those issues, a discussion of the caselaw on First Amendment and common-law privileges informs our analysis of the statutory issue.”) (emphasis added).
The federal court has recognized a significant First Amendment privilege. See Keefe v City of Minneapolis, 41 Med. L. Rep. 1275, 1277 (D. Minn. May 25, 2012) (“[M]ost federal courts grant a qualified privilege for journalists against compelled disclosure of information gatherer in the news-making process. . . . Where a court finds the First Amendment rights of the reporter outweigh the requesting party’s need for the information and grants the privilege, it typically extends to a reporter’s underlying work product, as well as an informant’s identity.”; J.J.C. v. Fridell, 165 F.R.D. 513, 516 (D. Minn. 1995) ("[M]ost federal courts have assumed the [reporter's] privilege protects a reporter's underlying work product as well as an informant's identity."). In Fridell, Magistrate Judge Montgomery (now U.S. District Judge Montgomery) applied the balancing approach followed in most federal courts, under which "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) unobtainable from other sources." Fridell, 165 F.R.D. at 516. Keefe applied the same test, explaining further that the “mere possibility of impeachment evidence is an insufficient reason to vitiate the qualified privilege.” 41 Med. L. Rep. at 1279.
This First Amendment privilege is similar to the Minnesota statutory privilege (as of the 1998 amendments), but not identical. For example, some information in civil cases might be compelled under the federal privilege that would not be compelled under the state statute.
The First Amendment to the United States Constitution is the most often-cited source on which the reporters' privilege is based. Brinston v. Dunn, 919 F. Supp. 240 (S.D. Miss. 1996); McKee v. Starkville, 11 Med. L. Rptr. 2312, No. EC-82-36-NB-D (N.D. Miss. Jan. 27, 1985). In a libel suit brought against a newspaper and it editorial columnist, the Mississippi Supreme Court concluded that "[f]reedom of the press is a fundamental requisite for the vitality of any democratic society. . . . In the Constitution of the United States, freedom of the press is among the rights proclaimed in the First Amendment, made binding on the states via the Fourteenth Amendment." Ferguson v. Watkins, 448 So. 2d 271, 277 (Miss. 1984).
Similarly, case law in the state has noted that the First Amendment to the United States Constitution provides a basis for beginning the argument that a reporter’s privilege should attach to the identity of sources used in the preparation of stories. But no state court has directly held this based upon federal constitutional provisions. Indeed, there are only two cases in the state of Missouri in which this issue has been addressed: CBS, Inc., v. Campbell, 645 S.W.2d 30 (Mo. Ct. App. 1982) and State of Mo. ex rel Classic III, Inc., v. Ely, 954 S.W.2d 650 (Mo. Ct. App. 1997), and both have relied heavily on federal case precedent in making what determinations have been made regarding this issue for reporters in the State of Missouri. In fact, the Ely case contains probably the most thorough discussion of this issue in the State of Missouri to date. See also Continental Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427 (E.D. Mo. 1984).
Other than the rather cursory treatment of the issue in Adams, discussed above, this writer is unaware of any Montana case in which a state court applied or rejected a reporter's privilege based on the First Amendment to the U.S. Constitution.
Concerning the shield law and the Sixth Amendment, see the Slavin and Kolb cases discussed in the section concerning state constitutional analysis.
It does not appear that the Nevada Supreme Court has considered the issue of whether there is a reporter's privilege based on the First Amendment to the U.S. Constitution. In fact, it seems unlikely that the court will do so in light of the statutory privilege. See Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 n.7 (2000) (“We need not address [the reporter’s] first amendment argument.”), citing Director, Dep't Prisons v. Arndt, 98 Nev. 84, 86, 640 P.2d 1318, 1320 (1982) (noting that “it is well settled that this court will not address constitutional issues unless they are requisite to the disposition of a case"); see also Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court, 129 Nev. 878, 883, 313 P.3d 875, 878 (2013) (deeming federal cases irrelevant as they “relate to a qualified journalistic privilege developed under the federal common law, which is distinct from the state statutory privilege at issue here”).
The Ninth Circuit Court of Appeals has concluded that there is a qualified privilege under the First Amendment. Farr v. Pitchess, 522 F.2d 464, 467-68 (9th Cir. 1975); Shoen v. Shoen, 5 F.3d 1289, 1292 (9th Cir. 1993). The federal district courts in Nevada have followed the Ninth Circuit's precedent by recognizing the existence of a qualified privilege under the First Amendment. See Newton v. Nat’l Broad. Co., 109 F.R.D. 522, 526-27 (D. Nev. 1985). The constitutional privilege, however, is not as protective as the statutory privilege provided for by NRS 49.275. In Newton, the federal district court concluded that a television reporter would have been required to disclose information concerning his confidential sources under the qualified First Amendment privilege against disclosure of confidential sources. Id. at 527. The court applied a balancing test and found that disclosure was mandated under the constitutional privilege because the case was a libel action where the plaintiff was a public figure who had to meet the "actual malice" standard enunciated in New York Times v. Sullivan. The court found it significant that the journalist claiming the privilege was a party defendant and that the plaintiff had effectively exhausted alternative means of learning the identity of the confidential sources. Id. Nonetheless, the court found the information to be privileged under NRS 49.275 and recognized that "Nevada's press shield law provides the broadest protection to news media sources of any State shield law enacted in the United States." Id. at 529. In discussing Shoen, the Magistrate Judge in In re Stratosphere Corp. Securities Litigation, 183 F.R.D. 684, 686 (D. Nev. 1999), noted:
Although this Court is not bound to follow Nevada law in determining whether a reporter should be compelled to disclose his or her sources, when dealing with purely federal issues of law, it should not ignore Nevada's public policy, as expressed in its statute, of providing reporters protection from divulging their sources. In writing his article for Nevada publication, clearly Mr. Di Rocco had a reasonable expectation that he would be protected by Nevada's media privilege law.
Cf. Am. Civil Liberties Union of Nevada v. City of Las Vegas, 13 F. Supp. 2d 1064 (D. Nev. 1998). It should be noted that in a civil case, a federal court would apply Nevada’s shield statute (and not the federal common law) where state law supplies the rule of decision. Fed. R. Evid. 501; Newton, 109 F.R.D. 522.
In State v. Siel the Court relied upon Branzburg v. Hayes, 408 U.S. 665 (1972), stating:
Our review of Branzburg v. Hayes . . . convinces us that a majority of the justices on the United States Supreme Court recognized that a reporter had a qualified first amendment privilege to protect confidential sources. . . . Most courts that have analyzed Branzburg have reached that same conclusion.
122 N.H. at 259 (citations omitted); see also Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., 160 N.H. 227, 234 (2010).
The New Jersey courts have not based any finding of privilege on the First Amendment.
On remand from the New Mexico Supreme Court's invalidation of the statutory reporter’s privilege in judicial proceedings, see Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976), the New Mexico Court of Appeals declared that “[t]he First Amendment does not grant a broadcaster any privilege, qualified or absolute, to refuse to reveal confidential information which is admittedly relevant to a court proceeding.” Ammerman v. Hubbard Broadcasting, Inc., 91 N.M. 250, 257, 572 P.2d 1258, 1265 (Ct. App.), cert. denied, 91 N.M. 249, 572 P.2d 1257 (1977), cert. denied, 436 U.S. 906 (1978). A subsequent supreme court decision concerning the discoverability of information relevant to the issue of “actual malice” was to the same effect. See Marchiondo v. Brown, 98 N.M. 394, 398-99, 649 P.2d 462, 466-67 (1982). Five months after its decision in Marchiondo, the supreme court crafted a rule of evidence creating a qualified reporter’s privilege. See infra pt. II(D).
Even before the Shield Law was amended in 1990 to incorporate a qualified privilege for nonconfidential news, the Court of Appeals in O'Neill recognized a reporter's qualified privilege under the First Amendment and interpreted that privilege as consistent with the three-pronged balancing test articulated by the Second Circuit Court of Appeals in United States v. Burke, 700 F.2d 70 (2d Cir.1983), cert denied, 464 U.S. 816 (1983). See O'Neill, 71 N.Y.2d 521 at 527 (noting that "confidentiality or the lack thereof has little, if anything, to do with the burdens on the time and resources of the press that would inevitably result from discovery without special restrictions."). In People v. Korkala, a 1984 case which rejected the notion that the 1981 amendment to the Shield Law extended the statute to nonconfidential news, the court nevertheless recognized that "there is the qualified privilege accorded to the newsman which is founded directly upon the free speech, free press guarantees of the First Amendment," and cautioned that compelling disclosure even of a reporter's nonconfidential resource material can "have a chilling effect upon his functioning as a reporter and upon the flow of information to the general public." Korkala, 99 A.D.2d at 166-167 (1st Dep't 1984) (internal citations omitted).
However, in Gonzales v. NBC, 194 F.3d 29 (2d Cir. 1999), the Second Circuit indicated that the issue of whether the privilege is rooted in the First Amendment or federal common law is unresolved. The Gonzales court limited the holding of Burke and determined that when the materials are nonconfidential, federal law offers less protection to a journalist than the three-part test articulated in Burke, which should only be applied to confidential materials. Indeed, the Gonzales court held that the privilege for nonconfidential material is overcome if the litigant can show that the materials are of likely relevance to a significant issue in the case and are not reasonably obtainable from another reliable source. Gonzales, 194 F.3d at 36. Interestingly, while citing past Second Circuit authority suggesting a constitutional basis for the privilege, the Gonzales court declined to rule on whether this privilege derived from federal common law or the Constitution, indicating that the issue would have to be resolved in the event that the federal privilege were restricted or abrogated by Congressional action. Id. at n.6 (citing von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 142 (2d Cir. 1987)). In that event, if the privilege were constitutionally derived, the restrictions would be struck down; if derived from federal common law, Congress could modify the privilege.
The North Carolina Court of Appeals has considered, and rejected in part, a reporter's privilege under the federal constitution, concluding that "the Supreme Court in Branzburg expressly recognized the state's compelling interest in pursuing criminal investigations." See 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). The court in Owens limited its holding to non-confidential information obtained from a non-confidential source in a criminal proceeding and it is possible to read the court's decision as simply a determination that the state's interest under the facts of this case outweighed the reporter's interest in non-disclosure. As a result, at least in criminal cases involving the disclosure of non-confidential information, it is uncertain whether North Carolina courts will continue to recognize a reporter's privilege based on the federal constitution.
The result in Owens has been effectively overruled by the enactment of the shield law. For example, in State v. Wiggins, 29 Media L. Rep. 1597 (N.C. Superior Ct. 2001), a Mecklenburg County Superior Court judge found that, despite the Supreme Court's ruling in Owens, the shield law does indeed protect non-confidential information obtained from non-confidential sources, even in criminal cases.
Prior to enactment of the shield law and the Owens decision, the North Carolina trial courts had on a consistent basis recognized the reporter's privilege based on the United States Supreme Court decision in Branzburg v. Hayes, 408 U.S. 665 (1972) and the First Amendment. One of the first of these cases was State v. Rogers, 9 Media L. Rep. 1254 (N.C. Superior Ct. 1983). In that case, a Wake County Superior court judge quashed a subpoena issued to a reporter for the Raleigh News & Observer in a criminal case, citing Branzburg to support the decision. The court recognized that journalists have a qualified First Amendment privilege to refuse to testify or disclose unpublished material, and that testimony or production of materials can be required only when the requesting party demonstrates: (1) that the information to be obtained is material and relevant; (2) that there is an important state interest in compelling the journalist's testimony; and (3) that the information sought is not available from other sources. Id. at 1255. This three part test was later codified in the shield law.
Subsequent cases in the trial courts affirmed this privilege based on the First Amendment (in addition to Article I, Section 14 of the North Carolina Constitution). See, e.g., 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, the First Amendment of the United States Constitution and quashing defendant's subpoena of newspaper reporter in civil case seeking testimony concerning three published articles); In re Ragavage, 43 Media L. Rep. 1057 (N.C. Superior Ct. 2014) (quashing subpoena seeking information about a news reporter’s interview and discussing policy reasons for the shield law); State v. Spivey, 35 Media L. Rep. 1137 (N.C. Superior Ct. 2006) (quashing subpoena in a criminal case seeking whether defendant’s admissions included in a news article were accurate); State v. Key, 35 Media L. Rep. 1136 (N.C. District Ct. 2006) (quashing defense subpoena in criminal case seeking testimony from news reporter); 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); Shinn v. Price, 27 Media L. Rep. 2341 (N.C. Superior Ct. 1999) (quashing plaintiff's subpoena in civil case seeking testimony from newspaper reporter concerning confidential and non-confidential information and sources in connection with the reporter's investigation into defendant's allegations that the plaintiff sexually assaulted her); State v. McKillop, 24 Media L. Rep. 1638 (N.C. District 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).
Several federal court cases arising in North Carolina have also recognized a reporter's privilege based on the federal constitution. The first such case was Miller v. Mecklenburg County, 602 F. Supp. 675 (W.D.N.C. 1985) and 606 F. Supp. 488 (W.D.N.C. 1985), aff'd, 813 F.2d 402 (4th Cir. 1986) (not addressing the reporter's privilege issue), cert. denied, 479 U.S. 1100 (1987). The case arose out of a civil suit against various police officials alleging that the defendants had caused the death of plaintiff's father by administering a "choke hold" while decedent was in police custody. Tex O'Neill, a newspaper reporter for The Charlotte Observer, investigated the allegations and published a story almost two years after the death revealing that while he was investigating the story he met someone who provided him information on a confidential basis concerning the alleged incident in addition to other non-confidential information. In the first decision in this case, the court recognized a qualified privilege against disclosure based on the Branzburg case both as to confidential source and non-confidential information, but concluded that plaintiff had met her burden to overcome the privilege with respect to the non-confidential identity of a potential witness to the alleged "choke hold" obtained from the confidential source by showing that she had exhausted all potential alternative sources of information. In the second decision after additional discovery based on the non-confidential information did not reveal helpful information, the court, acting with great "reluctance," required the reporter to reveal the identity of the confidential source but issued a protective order prohibiting the release of the confidential information to anyone but the attorneys involved in the case. See also United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) (following Branzburg and holding that “[t]here is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify . . . in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his [or her] source.”); Ashcraft v. Conoco, Inc., 218 F.3d 282, 28 Media L. Rep. 2103 (4th Cir. 2000) (district court recognized qualified privilege against disclosure of the source of information relating to $36 million court settlement ordered to be kept confidential, but, after investigation by the court and the parties, concluded that the reporter was the only means of identifying the source of the information; contempt order reversed by Fourth Circuit); Food Lion, Inc. v. Capital Cities/ABC, Inc., 951 F. Supp 1211 (M.D.N.C. 1996) (case arising out of ABC network's Prime Time Live program in which journalists used hidden cameras and "undercover" employees to suggest that Food Lion's corporate goals of promoting efficiency and reducing waste result in the sale of unsanitary food to consumers; the federal district court recognized the reporter's testimonial privilege, and applied the familiar three-part test, but ruled that the moving party had met its burden and allowed the journalists' materials concerning two unrelated hidden camera investigations to be subpoenaed); Penland v. Long, 922 F. Supp. 1080 (W.D.N.C. 1995), rev’d on other grounds, Jackson v. Long, 102 F.3d 722 (4th Cir. 1996) (quashing subpoenas issued by plaintiffs in civil case to newspaper and television reporters seeking testimony concerning unpublished conversations with the defendant sheriff in action arising out of the termination of the plaintiff deputy sheriffs by the defendant).
The North Dakota Supreme Court has not applied or rejected a reporter's privilege based on the First Amendment to the U.S. Constitution. There is no case law discussing federal constitutional rights prior to the legislature adopting the shield law in 1973.
While not fully recognized by all Ohio appellate courts, some Ohio courts have expressly recognized a qualified First Amendment constitutional privilege. See 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); see, e.g., Fawley v. Quirk, 9th Dist. Summit No. 11822, 11 Med.L.Rptr. 2336, 1985 WL 11006 (July 17, 1985); Slagle v. Coca Cola, 30 Ohio Misc.2d 34, 507 N.E.2d 794 (Montgomery County C.P. 1986). To date, however, the Ohio Supreme Court has declined to recognize a qualified privilege under the First Amendment. See State ex rel. National Broadcasting Company, Inc. v. Lake County Court of Common Pleas, 52 Ohio St.3d 104, 556 N.E.2d 1120 (1990).
Pennsylvania trial and intermediate appellate courts have uniformly applied a First Amendment reporter’s privilege. See, e.g., DiPaolo v. Times Publ’g Co., 142 A.3d 837, 845 (Pa. Super. 2016); Davis v. Glanton, 705 A.2d 879, 885 (Pa. Super. 1997); McMenamin v. Tartaglione, 590 A.2d 802, 811 (Pa. Commw. 1991), aff’d without op., 590 A.2d 753 (Pa. 1991); Commonwealth v. Farley, 27 Med. L. Rep. 1544 (Jefferson Cty. C.C.P. Jan. 12, 1999). In so doing, these Pennsylvania courts have followed the numerous decisions from the United States Court of Appeals for the Third Circuit and the various district courts within the Third Circuit applying the First Amendment reporter’s privilege. See, e.g., Smith v. Borough of Dunmore, 516 F. App’x 194, 198 (3d Cir. 2013); United States v. Cuthbertson (Cuthbertson II), 651 F.2d 189, 195-96 (3d Cir. 1981); United States v. Criden, 633 F.2d 346, 358-59 (3d Cir. 1980); United States v. Cuthbertson (Cuthbertson I), 630 F.2d 139, 148 (3d Cir. 1980); Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979); Siroky v. Allegheny Cty., 2018 WL 1465759 (W.D. Pa. Mar. 26, 2018); In re Maykuth, 2006 WL 724241 (E.D. Pa. Mar. 17, 2006); In re Vmark Software, Inc., 1998 WL 42252 (E.D. Pa. Jan. 8, 1998); Perry v. Keulian, 1997 WL 117027 (E.D. Pa. March 11, 1997); In re Williams, 766 F. Supp. 358, 359 (W.D. Pa. 1991), aff’d, 963 F.2d 567 (3d Cir. 1992).
In 2003, the Pennsylvania Supreme Court “assume[d], without deciding” that Pennsylvania recognizes a First Amendment reporter’s privilege. Commonwealth v. Bowden, 838 A.2d 740, 753 n.10 (Pa. 2003); Castellani v. Scranton Times, L.P., 956 A.2d 937, 950 n.11 (Pa. 2008) (Bowden court “acknowledg[ed] the Third Circuit’s recognition of a qualified reporter’s privilege”). The Supreme Court recognized that “the Third Circuit has concluded that reporters have a qualified right to refuse to disclose their sources and materials.” Bowden, 838 A.2d at 752; see also id. at 753 n.10 (explaining that “application of Third Circuit precedent in this matter is consistent with our general practice of deferring to the Third Circuit concerning federal questions”). Under Third Circuit precedent, to evaluate the privilege, a court “must balance on one hand the policies which give rise to the privilege and their applicability to the facts at hand against the need for the evidence sought to be obtained in the case at hand.” Id. at 754. The court explained that under the Third Circuit’s test, “the party seeking to overcome the privilege must demonstrate that: (1) it has made an effort to obtain the information from other sources; (2) the information is only accessible through the reporters and their sources; and (3) the information is critical to the case.” Castellani, 956 A.2d at 950 n.11 (citing Bowden, 838 A.2d at 752).
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 constitutional privilege against disclosure of the materials in question under the U.S. Constitution. Id. at 1052.
Likewise, in Capuano v. Outlet Co., 579 A.2d 469 (R.I. 1990), the Rhode Island Supreme Court stated that its reading of Branzburg v. Hayes, 408 U.S. 65 (1972), together with Herbert v. Lando, 441 U.S. 153 (1979), lead "to the conclusion that the Supreme Court of the United States has rejected the proposition that there is a First Amendment privilege accorded to newspersons to refuse to disclose information, confidential or otherwise, which is necessary to the determination of a litigated case." 579 A.2d at 474. Capuano further found that there was no First Amendment privilege, qualified or otherwise, allowing a media defendant or newsperson to refuse to divulge confidential sources and the information from confidential sources in a defamation action when this information is both relevant and essential to plaintiffs in sustaining their heavy burden of proof. Id.
The Supreme Court of South Carolina has said that the First Amendment to the United States Constitution does provide a "qualified privilege in limited situations, such as when the grand jury acts in bad faith or the press is being subjected to official harassment. Branzburg [v. Hayes, 408 U.S. 665 (1992)]," but refused to apply it in circumstances where a trial judge was seeking from a reporter the identity of her confidential source for information in the court-ordered psychiatric evaluation of a murder defendant. Matter of Decker, 322 S.C. 215, 471 S.E.2d 462 (1995), n.4 (emphasis in original).
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.
To the extent Texas courts have recognized any sort of reporter’s privilege based on federal law, it has been grounded upon the First Amendment to the United States Constitution, and the Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665 (1972). See, e.g., Holland v. Centennial Homes, Inc., No. 3:92-CV-1533-T, 3:92-CV-1534-T, 1993 U.S. Dist. LEXIS 21624, 22 Med. L. Rptr. 2270 (N.D. Tex. Dec. 21, 1993); but see State ex rel. Healey v. McMeans, 884 S.W.2d 772 (Tex. Crim. App 1994) (en banc) (“[N]ewsmen have no constitutional privilege, qualified or otherwise, to withhold evidence relevant to a pending criminal prosecution.”). The amount of protection afforded has varied depending on whether the subpoena arose in the civil or criminal context and whether the information or source sought was confidential or not. To the extent a balancing test was applied, the test consisted of three prongs – the information sought must be: (1) highly relevant, (2) necessary or critical to the maintenance of the claim, and (3) not obtainable from other available sources. See Dallas Morning News v. Garcia, 822 S.W.2d 675 (Tex. App.—San Antonio 1991, orig. proceeding); Texas v. Lyon, 19 Med. L. Rptr. 2153 (Tex. Crim. Dist. Ct.—Dallas 1991).
The Advisory Committee Note to Utah Rule of Evidence 509 recognizes that “[p]rotection of news gathering and dissemination has roots in the First Amendment of the United States Constitution.” Utah R. Evid. 509 advisory committee note (2008). Even before the adoption of this rule, Utah appellate courts indirectly recognized the existence of First Amendment protections for news gathering based on Branzburg v. Hayes, 408 U.S. 665 (1972). The Utah Supreme Court, writing in dicta in the case of a reporter seeking access to government information, quoted the statement from Branzburg that “‘news gathering is not without its First Amendment protections.’” Redding v. Jacobsen, 638 P.2d 503, 508 (Utah 1981) (quoting Branzburg, 408 U.S. at 707); see also State v. Krueger, 975 P.2d 489, 497 (Utah Ct. App. 1999) (citing Branzburg for “recognizing First Amendment protection for news gathering”).
Utah trial courts presented with the issue likewise have found the existence of a qualified First Amendment privilege based on Branzburg and Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977). For example, a Third District judge in Salt Lake County quashed a subpoena of a newspaper reporter who had interviewed a murder defendant because “[a]s a newspaper reporter, Ms. Donaldson enjoys a qualified First Amendment privilege from being compelled to testify at the trial of the defendant.” State v. Koolmo, No. 981905396 (Utah 3d Dist. Ct. March 29, 1999) (Judge Robert K. Hilder). Other state trial judges have made similar statements with respect to the reporter's privilege granted by the First Amendment. See, e.g., In re: Inquiry of the State Ballot Law Commission of the State of Massachusetts, No. 020905264 (Utah 3d Dist. Ct. June 25, 2002) (Judge Ronald E. Nehring) (applying qualified First Amendment privilege to subpoena demanding reporter's deposition testimony and allowing affidavit from reporter in lieu of deposition); Lester v. Draper, No. 000906048 (Utah 3d Dist. Ct. Jan. 16, 2002) (Judge J. Dennis Frederick) (applying qualified First Amendment privilege to subpoena of reporter in civil case and quashing subpoena because subpoenaing party failed to meet burden to show need, relevance and lack of alternative sources); State v. Michaels, No. 011902114 (Utah 3d Dist. Ct. July 9, 2001) (Judge Dennis M. Fuchs) (quashing subpoena seeking unaired videotape where information on videotape was available through an alternative source); Diaz v. DeLeura, No. 040916320 (Utah 3d Dist. Ct. 2006) (quashing subpoena seeking to depose newspaper reporter in a civil defamation case not involving the newspaper).
A U.S. District Court Magistrate Judge found a First Amendment privilege that justified quashing the subpoena of two Salt Lake City newspaper reporters in an employment discrimination case. Bottomly v. Leucadia Nat'l Corp., 24 Med. L. Rep. 2118, 1996 U.S. Dist. LEXIS 14760 (D. Utah July 2, 1996) (Magistrate Judge Ronald N. Boyce). Utah's federal district court judges have followed Silkwood and Bottomly in recognizing a qualified First Amendment reporter's privilege, and have applied the privilege in criminal and civil cases. See, e.g., United States v. Jenkins, No. 2:03CR0526 (D. Utah 2003) (applying qualified First Amendment privilege to quash, in part, subpoena seeking photographs taken by newspaper at Rainbow Family Campout); Nilson v. Layton City, No. 92-NC-112W (D. Utah 1994) (applying qualified First Amendment privilege in upholding subpoena seeking testimony in civil trial from television reporter who reported statements of police officer that plaintiff had a prior expunged criminal conviction).
The First Amendment to the United States Constitution provides in relevant part as follows: “Congress shall make no law . . . abridging the freedom of speech, or of the press. . . .” U.S. Const. amend. I.
The United States Supreme Court has held that the unqualified prohibitions laid down by the framers of the Constitution were intended to give the liberty of the press the broadest scope that could be countenanced in an orderly society. Sheppard v. Maxwell, 384 U.S. 333 (1966). These rights are not, however, unlimited. See Branzburg v. Hayes, 408 U.S. 665, 690-691 (1972) (holding there is no constitutional privilege under the First Amendment that excuses reporters from appearing and testifying before grand juries investigating criminal conduct, even if the source of their information is confidential). The Second Circuit Court of Appeals has recognized a qualified reporter’s privilege arising out of the First Amendment. See United States v. Burke, 700 F.2d 70, 77 (2d Cir. 1983) (noting that under the applicable test, “the First Amendment interests” of the reporter are balanced against the “evidentiary needs” of the party seeking the information); Am. Sav. Bank, FSB v. UBS PaineWebber, Inc. (In re Fitch, Inc.), 330 F.3d 104, 109 (2d Cir. 2003) (recognizing a common law privilege independent of New York’s shield law that can be asserted by journalists resisting a subpoena).
In State v. St. Peter, 132 Vt. 266, 271, 315 A.2d 254 (1974), the Vermont Supreme Court recognized a qualified reporter’s privilege under the First Amendment to refuse to give testimony in a criminal case absent a showing by the party seeking disclosure that there is no other adequately available source for the information and that the information sought is relevant and material on the issue of guilt or innocence. The Court reaffirmed this holding in 2005, confirming that a qualified reporter’s privilege exists in all “cases in which a news reporter is ‘legitimately entitled to First Amendment protection.’” In re Inquest Subpoena (WCAX), 2005 VT 103, ¶ 14, 890 A.2d 1240 (Vt. 2005).
The Virginia Supreme Court has recognized a reporter's privilege under the First Amendment of the United States Constitution. The privilege, which affords both confidentiality to the information obtained and protection to the identity of the source, was established in Brown v. Commonwealth, 214 Va. 755, 204 S.E.2d 429 (1974).
The state's trial and appellate courts have generally recognized and abided by federal case law adopting a First Amendment privilege for journalists. There are no published Washington decisions, however, confirming this basic principle.
For example, when the Washington Court of Appeals issued an unpublished decision in February 2001, In the matter of the request of: Plaintiffs Alfredo Azula et al., 29 Med. L. Rptr. 1414 (Wash. App. 2001), the court recognized, without discussion, that a journalist had a First Amendment privilege to resist disclosure of interview notes pursuant to a subpoena duces tecum. The court held that in camera review was appropriate and that, because the notes "have no relevance" to the underlying case, a trial court committed error in ordering disclosure of the journalist's notes.
The principle that a First Amendment interest can trump the obligations imposed by the civil discovery process, however, is well-established in Washington. In one state court case, which did not involve a reporter's privilege but rather a political party's refusal to name members and donors, the Washington Supreme Court recognized that a First Amendment privilege may be interposed to resist civil discovery requests. This case, Snedigar v. Hoddersen, 114 Wn.2d 153, 786 P.2d 781 (1990), suggests that a journalist's privilege can be rooted in a broader First Amendment context in appropriate circumstances.
Finally, the state's courts, while resting their holdings on a common law privilege for reporters, have generally recognized that the common law privilege is bounded "'by an awareness of First Amendment values.'" Clampitt, 98 Wn.2d at 644 n. 3; see also Senear, 97 Wn.2d at 155, 641 P.2d 1180. ("While these cases are all concerned with whether there is First Amendment qualified privilege, their statements as to the balancing of interests and the need for a qualified privilege are germane to questions of common law privilege for reporters.").
The qualified reporter's privilege in West Virginia is based on the Branzburg standard and the state Supreme Court's application of the First Amendment to the United States Constitution, as explained in Hudok. The state Supreme Court reaffirmed the Hudok holding in State ex rel. Charleston Mail Ass'n v. Ranson, 200 W.Va. 5, 25 Media L. Rep. 2166, 60 A.L.R.5th 827, 488 S.E.2d 5 (1997) and State ex rel. Lincoln Journal, Inc. v. Hustead, 228 W. Va. 17, 19, 716 S.E.2d 507, 509 (2011).
No reported state court decision has applied or rejected a reporter’s privilege based on the First Amendment to the U.S. Constitution. As mentioned above, a U.S. district court has applied the reporter’s privilege in ruling on a motion to quash a subpoena of a news photographer’s unpublished photographs in a civil case. The court denied the motion to quash pursuant to the test set forth by the Tenth Circuit Court of Appeals. Order on Appeal from Magistrate's Order, Wilson v. Amoco, Docket No. 96-CV-0124-B (D. Wyo. filed April 8, 1998) (citing Tate v. Akers, 565 F.2d 1166 (10th Cir. 1977)).