c. News

In Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436-37 (10th Cir. 1977), the court held that the First Amendment reporter's privilege extended to a film maker producing a documentary. The court reasoned that the film maker's purpose was to be an investigative reporter for the documentary. To support this view, the Tenth Circuit noted that the U.S. Supreme Court has not limited the privilege to newspaper reporters. Moreover, the press includes all kinds of publications which communicate to the public information and opinion.

The First Circuit’s definition of “news” has generally revolved more around the purpose of the report, rather than the form in which it is published.  Courts have looked at factors such as whether the report disseminates investigative information and whether it relates to matters of public concern.  See, e.g., Cusumano v. Microsoft Corp., 162 F.3d 708, 713 (1st Cir. 1998); Summit Tech., Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992).

While the Second Circuit does require that information be gathered in the newsgathering process to be covered by the reporter's privilege, it has not specifically defined the term "news." Yet the Second Circuit in Von Bulow v. Von Bulow made it clear that newsgathering only includes efforts to disseminate information to the public. 811 F.2d 136, 145 (2d Cir. 1987); see also infra Section IV.A.2. Examples of newsgathering include a journalist's discussions with a confidential source that the journalist intends to publish in a newspaper, United States v. Aponte-Vega, 20 Med. L. Rep. 2202 (S.D.N.Y. May 29, 1992); a network's filming of traffic stops by a policeman for the purpose of broadcasting the stops on a television show, Gonzales v. National Broadcasting Co., 194 F.3d 29 (2d Cir. 1999); and a financial newsletter's acquisition of a tape recording of a conference call which contained information about a conspiracy that the newsletter intended to publish, PPM America, Inc. v. Marriott Corp., 152 F.R.D. 32 (S.D.N.Y. 1993).

In In re Madden, 151 F.3d at 130, the Third Circuit held that persons or entities seeking to invoke the First Amendment-based journalist's privilege have the burden of demonstrating that they are "engaged in investigative reporting, gathering news, and have the intent at the beginning of the newsgathering process to disseminate this information to the public." As the court explained, "[t]his test does not grant status to any person with a manuscript, a web page or a film, but requires an intent at the inception of the newsgathering process to disseminate investigative news to the public." Id. at 129. In that case, the court held that entertainment or "creative fiction" concerning "professional" wrestlers does not qualify as "news." Id. at 130-31. However, as one district court has explained, the First Amendment-based privilege "is not confined to any particular subject matter." In re Scott Paper Co. Sec. Litig., 145 F.R.D. at 369.

The Fourth Circuit does not define “news” for the purpose of determining what information may be protected under the reporter’s privilege. Presumably the scope of protection is broad, at least where the news gatherer is working for a traditional journalistic enterprise.

No reported decision of the Fifth Circuit addresses what constitutes "news" for purposes of asserting the qualified privilege.

No federal court in the Sixth Circuit has limited First Amendment protection only in contexts where the information was gathered in pursuit of news, and no federal court in the Sixth Circuit has defined "news."

The Sixth Circuit itself applied the First Amendment to bar enforcement of a civil subpoena seeking to require a newspaper to divulge the identity of an advertiser who placed a "blind ad"; consequently, it seems clear that First Amendment protection applies beyond the context of news.

What constitutes "news" has yet to be specifically defined in the Seventh Circuit, however, it appears for purposes of invoking the reporter's privilege news can include information gathered for political purposes. See Builders Assoc. of Greater Chicago v. County of Cook, No. 96 C 1121, 1998 WL 111702, at *4-5 (N.D. Ill. Mar. 12, 1998).There is no statutory or case law addressing this issue.

Information gathered in the pursuit of news is protected under the reporter’s privilege. Shoen I, 5 F.3d at 1293. The Ninth Circuit has not formulated a definition of the term “news,” but has recognized the importance of “newsworthy” facts on topical and controversial matters of great public interest. Id.; see also Hamilton v. Hart, No. 10-CV-00272-DAD, 2017 WL 85781, at *2 n.1 (E.D. Cal. Jan. 9, 2017) (noting in dicta that NBC News was protected by a qualified journalist’s privilege for documentary footage about a state prison).

There is no Alabama statutory or reported case law defining "news."

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and the trial courts have not had occasion to address the definition of "news" for purposes of applying the privilege. The shield law does not define "news."

"News" has been defined as "a report of recent events; material reported in a newspaper or news periodical or on a newscast; matter that is newsworthy." Matera, 170 Ariz. at 448, 825 P.2d at 973 (citing to Webster's Ninth New Collegiate Dictionary 796 (1984)). Applying this definition to A.R.S. § 12-2214, the court determined that defendant Matera "was not actively engaged in the gathering, reporting, etc. of 'news'" when he gathered information for the sole purpose of publishing one book about an undercover "sting" participant. Id.

The shield law does not define "news."

One California court held that to be entitled to protection, “the person or entity invoking the shield law [must] be engaged in legitimate journalistic purposes, or have exercised judgmental discretion in such activities.” Rancho Publ’ns v. Superior Court, 68 Cal. App. 4th 1538, 1544-45, 81 Cal. Rptr. 2d 274 (1999) (citing Delaney v. Superior Court, 50 Cal. 3d 785, 798 n.8, 789 P.2d 934, 268 Cal. Rptr. 753 (1990)). Consequently, this case requires “a prima facie showing” that the information was obtained “for the journalistic purpose of communicating information to the public.” Id. at 1546. Another Court of Appeal asserted that the reporter’s burden is “to show that they were in a class of persons protected by the shield law and that the information provided by their source was ‘procured for news or news commentary purposes on radio or television.’” In re Willon, 47 Cal. App. 4th 1080, 1092-93, 55 Cal. Rptr. 2d 245 (1996) (citations omitted).

The Shield Law broadly defines "news information" as "any knowledge, observation, notes, documents, photographs, films, recordings, videotapes, audiotapes, and reports . . . obtained by a newsperson." C.R.S. § 13-90-119(1)(b).

Neither the Shield Law nor the case law define “news.”

No statutory or case law addressing this issue exists.

The statute covers "information," not just "news." Information is defined as "any oral, written or pictorial material and includes, but is not limited to, documents, electronic impulses, expressions of opinion, films, photographs, sound records, and statistical data." 10 Del. C. § 4320 (2). Although the expansive definition indicates a liberal attitude toward what may be considered information, the definition has not been litigated in Delaware.

The District’s shield law does not define “news” or “information.”  Instead, the Code refers to what a person was doing in coming into possession of the material at issue.  Thus, D.C. Code § 16-4702 protects “news or information” gathered “while acting in an official news gathering capacity” and “in the course of pursuing professional activities.”  D.C. Code §§ 16-4702(1) & (2).

Florida’s statutory privilege defines “news” as “information of public concern relating to local, statewide, national, or worldwide issues or events.” § 90.5015(1)(a), Fla. Stat. (2023).

The statutory privilege does not limit the definition of "news" in any fashion, nor have the Georgia courts.

There is no current Hawai‘i statute or other authority addressing this issue.

The Idaho cases do not attempt to define “news.”

Although the Statute does not define “news,” it does state that a reporter is one who is “writing or editing news for publication through a news medium . . .” 735 ILCS 5/8-902(a)(emphasis added).  In Simon v. Northwestern Univ., 321 F.R.D. 328, 45 Media L. Rep. 1961 (N.D. Ill. 2017), the court rejected the argument that documentary film about plaintiff’s wrongful conviction that was the subject of defendant’s subpoena “was not a news product created by ‘a vigorous, aggressive, and independent press,’ but rather a ‘piece of propaganda’ created ‘to promote a litigation theory’ that benefited” plaintiff; the evidence showed that in “gathering and explaining the story behind the convictions” the filmmakers had no “agenda or ulterior motive in mind” – even though one of them later joined plaintiff’s legal team.  Id. at 331.

The Indiana shield law does not define “news,” nor is the term defined in case law discussing the statute.

Information sought to be protected must have been obtained in the "news gathering process." Bell, 412 N.W.2d at 588. The case law does not define "news gathering process." In Waterloo/Cedar Falls Courier, the party requesting disclosure asserted that the editors were not engaged in the news gathering process at the time they spoke with their confidential informants, therefore, they were not entitled to the protection of the reporter's privilege. 646 N.W.2d at 101. The requesting party, a community college, argued that the editors were seeking fodder for the paper's lawsuit against the college for violating open meetings laws, and were not engaged in the news gathering process. The Court determined that the editors were investigating the meeting and found that at least one article resulted from that investigation. Id. The Court found that the editors were engaged in the news gathering process and were entitled to reporter's privilege protection. Id. at 104.

The Kansas shield law does not define “news” but does limit its protections to “information” acquired at times when a journalist is “acting as a journalist,” which are defined expressions.  K.S.A. 60-480(b) and (c).  These statutes make it clear that what is protected is that which is “gather[ed], receiv[ed] or process[ed] for communication to the public.”

Neither the shield statute nor Kentucky case law defines "news." The statute, KRS 421.100, applies to “any information . . . published in a newspaper or by a radio or television broadcasting station.”

The Louisiana shield law defines news as "any written, oral, pictorial, photographic, electronic, or other information or communication, whether or not recorded, concerning local, national, or worldwide events or other matters of public concern or public interest or affecting the public welfare." La. R.S. 45:1459(A).

Maine’s courts have not addressed this issue.

There is no statutory or case law definition of "news," however Md. Cts. & Jud. Proc. Code Ann. § 9-112(a) defines "news media" as (1) [n]ewspapers; (2) [m]agazines; (3) [j]ournals; (4) [p]ress associations; (5) [n]ews agencies; (6) [w]ire services; (7) [r]adio; (8) [t]elevision; and (9) [a]ny printed, photographic, mechanical, or electronic means of disseminating news and information to the public."

Courts have not defined what "news" is, for purposes of the privilege.

However, in Summit Technology, Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992), the court held that an investment analyst's written report on a company could be the basis of a claim of the reporter's privilege.

Neither case law nor the statutes recognizing the news reporter’s privilege define “news.”

No specific Minnesota cases dealing with news personnel not covered in other sections.

Neither the opinions from the federal district courts of Mississippi nor the selected trial court orders define "news" for purposes of applying the qualified privilege.

There is no statutory or case law addressing this issue.

There is no further definition of what "news" is. If the information was gathered or processed in the course of the business of the defined organizations, then it is presumed to be news.

The statute does not define news. It protects any person “engaged in procuring, gathering, writing, editing or disseminating news or other information to the public.” Neb. Rev. Stat. § 20-146.

NRS 49.275 does not define "news" and there appears to be no other statute defining this term.

There is no statute or case defining "news.” But see the Court’s statement in Mortgage Specialists, Inc. set forth in part IV.A above (“every sort of publication which affords a vehicle of information and opinion”).

Under the privilege "news" is defined as "any written, oral or pictorial information gathered, procured, transmitted, compiled, edited or disseminated by, or on behalf of any person engaged in, engaged on, connected with or employed by a news media and so procured or obtained while such required relationship is in effect."

The privilege does not turn on specialized definitions of, or value judgments about, what constitutes “news.” Rule 11-514 confers the privilege on persons employed by news media to gather, procure, transmit, compile, edit, or disseminate “news,” which the rule broadly defines to include “any written, oral, or pictorial information.” Rule 11-514(A)(4), (B) NMRA. (But the privilege protects only confidential information that the journalist obtains and confidential sources that she consults “in the course of pursuing professional news activities,” which “does not include any situation in which a news media person participates in any act of criminal conduct.” Rule 11-514(A)(3), (B) NMRA.) The statutory privilege applicable to nonjudicial proceedings protects unpublished information “obtained or prepared in gathering, receiving or processing of information for any medium of communication to the public,” as well as the sources of such information. NMSA 1978, § 38-6-7(A) (1973).

"News" is defined as "written, oral, pictorial, photographic, or electronically recorded information or communication concerning local, national or worldwide events or other matters of public concern or public interest or affecting the public welfare." Civ. Rights § 79-h(a)(8).

One court has held that letters to the editor qualify as “news” under the Shield Law. See Oak Beach Inn Corp. v. Babylon Beacon, 92 A.D.2d 102, 104 (1983) (reasoning that people read letters to the editor for the same reason as other news: “to learn what is happening around them, and the reactions of other people to these events”).

Another court noted that “the official status” of a source is “relevant information” and qualifies as “news.” Beach v. Shanley, 62 N.Y.2d 241 n.4, 249, 465 N.E.2d 304, 308 (1984) (explaining that “it would be of great interest that an unaccredited revelation about foreign affairs came from the Secretary of State rather than a mail clerk”).

Another court found that a documentary film about the sexual exploitation of underage girls qualified as “news.” People v. Hendrix, 12 Misc.3d 447, 820 N.Y.S.2d 411 (N.Y. Sup. Ct. Kings Cty. 2006).

Another court held that a journalist’s testimony about conversations with the defendants’ arresting officers and notes he took at the time were “news” or the “source of news” and therefore protected under the Shield Law. People v. Marahan, 81 Misc. 2d 637, 368 N.Y.S.2d 685 (N.Y. Sup. Ct. Kings Cty. 1975).

Another court held that a conviction for criminal mischief is a "matter of public concern or interest" and therefore "news" protected by section § 79-h. Guice-Mills v. Forbes, 819 N.Y.S.2d 432, 435 (N.Y. Sup. Ct. N.Y. Cty. 2006).

In Trump v. O'Brien, 403 N.J. Super. 281, 958 A.2d 85 (N.J. App. Div. 2008), a New Jersey appellate court found that the author and publisher of a biographical book about the real estate developer Donald Trump, before he became President, was protected under both New York's and New Jersey's shield laws.

Under the shield law, news is any information gathered, compiled, written, edited, photographed, recorded, or processed for dissemination via any news medium. N.C. Gen. Stat. § 8-53.11(a)(1).

The term "news" is not defined in the statute, although the statute protects additional methods of news gathering such as wiring, photographing, and editing.

Ohio Revised Code § 2739.04 (broadcasters)

No person engaged in the work of, or connected with, or employed by any noncommercial educational or commercial radio broadcasting station, or any noncommercial educational or commercial television broadcasting station, or network of such stations, for the purpose of gathering, procuring, compiling, editing, disseminating, publishing, or broadcasting news shall be required to disclose the source of any information procured or obtained by such person in the course of his employment, in any legal proceeding, trial, or investigation before any court, grand jury, petit jury, or any officer thereof, before the presiding officer of any tribunal, or his agent, or before any commission, department, division, or bureau of this state, or before any county or municipal body, officer, or committee thereof. . . .

Ohio Revised Code § 2739.12 (newspapers)

No person engaged in the work of, or connected with, or employed by any newspaper or any press association for the purpose of gathering, procuring, compiling, editing, disseminating, or publishing news shall be required to disclose the source of any information procured or obtained by such person in the course of his employment, in any legal proceeding, trial, or investigation before any court, grand jury, petit jury, or any officer thereof, before the presiding officer of any tribunal, or his agent, or before any commission, department, division, or bureau of this state, or before any county or municipal body, officer or committee thereof.

The statute does not define what is “news,” but the privilege is limited to those who gather and prepare it for dissemination to the public. See ¶ IV(A)(1)(e) below.

ORS 44.510 defines the scope of the privilege as protecting a "medium of communication." "Medium of communication" "has its ordinary meaning and includes, but is not limited to, any newspaper, magazine or other periodical, book, pamphlet, news service, wire service, new or feature syndicate, broadcast station or network, or cable television system. Any information which is a portion of a governmental utterance made by an official or employee of government within the scope of his or her governmental function, or any political publication, is not included within the meaning of 'medium of communication.'"

The Pennsylvania Shield Law is expressly limited to those persons “gathering, procuring, compiling, editing or publishing news.” There is no case law addressing this issue under the First Amendment reporter’s privilege. And, there is no Pennsylvania statutory or case law that expressly defines what is considered “news” for the purposes of either the Shield Law or the First Amendment reporter’s privilege.

The term "news" is not defined by the Rhode Island Shield Law. The only specific term defined in the Newsman's Privilege Act is "newspaper" or "periodical" to mean one that is issued at regular intervals and has a paid circulation. R.I. Gen. Laws § 9-19.1-1. However, the Rhode Island Shield Law or Newsman's Privilege Act applies to any "person directly engaged in the gathering or presentation of news for any accredited newspaper, periodical, press association, newspaper syndicate, wire service, or radio or television station." R.I. Gen. Laws § 9-19.1-2.

There is no definition of "news," but the word will be given its ordinary meaning in the absence of an indication by the legislature that it intended another meaning. There is no contrary meaning in the statute.

Not defined.

The Tennessee shield law applies to any "person engaged in gathering information for publication or broadcast connected with or employed by the news media or press, or who is independently engaged in gathering information for publication or broadcast." Tenn. Code Ann. § 24-1-208(a). The statute uses, but does not define, the terms, "news," "news media," and "press." The context of the statute strongly supports a broad interpretation of these terms, but there is no case law further defining who is covered by the shield law.

“Bias and selectivity in reporting” does not determine applicability of the privilege.  Abraham v. Greer, 509 S.W.3d 609 (Tex. App.—Amarillo 2016, pet. denied).  Rather, courts will rely solely on the definition in the statute.  Id.  There is no specific definition of news under the Texas shield law. However, “news medium” is defined under the statute as: “a newspaper, magazine or periodical, book publisher, news agency, wire service, radio or television station or network, cable, satellite, or other transmission system or carrier or channel, or a channel or programming service for a station, network, system, or carrier, or an audio or audiovisual production company or Internet company or provider, or the parent, subsidiary, division, or affiliate of that entity, that disseminates news or information to the public by any means, including: (a) print; (b) television; (c) radio; (d) photographic; (e) mechanical; (f) electronic; and (g) other means, known or unknown, that are accessible to the public.” See Tex. Civ. Prac. & Rem. Code §22.021(3) and Tex. Code Crim. Proc. art. 38.11, §1(3).

There is no statutory or case law addressing this issue.

The statutory privilege does not limit the definition of “news” in any fashion, nor have the Vermont courts.

The case law does not define “news.”

Washington's case law has not yet squarely addressed this issue. The state courts would likely apply a First Amendment privilege that is based on broader considerations than newsgathering interests. See Snedigar v. Hoddersen, 114 Wn.2d 153, 786 P.2d 781 (1990).

Also see Section 5 of the shield statute, which defines the covered "news media." See RCW 5.68.010(5).

The Hudok court stated only that "the general rule is that a qualified First Amendment privilege is available to the news-gathering material whether confidential, published, or not published." It seems self-evident that, to be protected, the information must be part of the news-gathering process; however, no further definition of "news" is found in a statute or the caselaw.

A “news person” only may invoke the shield law in connection with information “obtained or prepared by the news person in the news person's capacity in gathering, receiving, or preparing news or information for potential dissemination to the public.”  Wis. Stat. § 885.14(2)(a).

Not applicable.