C. Type of case

Most of the reporter’s privilege cases in the Fourth Circuit have arisen in the civil context. The Fourth Circuit first discussed a testimonial privilege in United States v. Steelhammer, in which reporters for the Charleston Gazette were summoned to testify in a civil contempt hearing. 539 F.2d 273 (4th Cir. 1976), rev’d en banc, 561 F.2d 539 (4th Cir. 1977). The Fourth Circuit introduced its balancing test for confidential information in the context of a civil defamation case. LaRouche, 780 F.2d at 1135. In Church of Scientology, also a civil defamation case but with the media as a third party, the Fourth Circuit indicated its intention to apply its LaRouche test to nonconfidential information as well. Church of Scientology, 992 F.2d at 1335. More recently, the Fourth Circuit in Ashcraft v. Conoco, Inc., an environmental torts suit, reinforced the application of a reporter’s privilege for confidential news sources or information. 218 F.3d 282, 28 Media L. Rep. 2103 (4th Cir. 2000); see also Horne v. WTVR, LLC, 893 F.3d 201 (4th Cir. 2018) (upholding application of reporter’s privilege to protect confidential source in public figure defamation case).

At the district court level, the most protective opinions have come in civil cases. In Bischoff v. United States, 25 Media L. Rep. 1286 (E.D. Va. 1996), a reporter for the Houston Post was subpoenaed to testify in a suit brought by the two plaintiffs against the United States, alleging that FBI and IRS employees unlawfully published their confidential tax information. The reporter moved to quash the subpoena, arguing that his only relevant information was obtained from a confidential source, and the district court granted the motion, holding that a qualified privilege exists in a civil action even where a reporter is believed to have first-hand evidence of criminal conduct. Id. at 1287-88. In Penland, former prison employees brought a civil rights and defamation suit against a sheriff and subpoenaed from a local newspaper and television station both confidential and nonconfidential information surrounding their interviews with the sheriff. Penland, 922 F. Supp. at 1082. The district court granted the motion to quash and issued a protective order, applying the LaRouche test and holding the privilege outweighed the need for the information. Id. at 1084. In Stickels v. General Rental Co., 750 F. Supp. 729, 18 Media L. Rep. 1644 (E.D. Va. 1990), a local newspaper reporter challenged a tort defendant’s subpoena of photos and negatives of the accident at issue. Though the court ultimately denied the motion to quash the subpoena, it applied the LaRouche test to nonconfidential information.  Finally, in Livingston v. Kehagias, No. 5:16-CV-906-BO, 2018 WL 1278190, at *2-3 (E.D.N.C. March 12, 2018), the court found that each element of the LaRouche test counseled in favor of quashing the subpoena served on a local newspaper in Charlotte, North Carolina.  The court stated that, “as an initial matter, this Court reaffirms its commitment to a free and uninhibited press contributing to the robust and unfettered debate characteristic of our society.  At the same time, this Court is aware that a generation of Supreme Court jurisprudence suggests that the First Amendment does not provide the press an absolute shield from legal process.”  Id. at *2.

The privilege is broader in nonadjudicative proceedings than in adjudicative hearings (those proceedings determining the rights of parties, but not including grand jury proceedings). 10 Del. C. § 4320 (1). While, in either case, a reporter may decline to testify regarding either the source or content of information, the privilege applies in adjudicative proceedings only if the reporter states under oath that the disclosure of the information would violate an express or implied understanding with the source under which the information was originally obtained or would substantially hinder the reporter in the maintenance of existing source relationships or the development of new source relationships." § 4322. Even then, testimony divulging the content of information may be required, so long as it will not reveal the information's source, and the judge determines that the public interest in disclosure outweighs the public interest in confidentiality. § 4323 (a). If the truthfulness of a reporter's claim is challenged, the privilege may be overcome by a preponderance of the evidence. § 4323 (b).

The nature of Kentucky’s statutory privilege is the same in both the criminal and civil contexts. In fact, Kentucky’s reporter shield statute expressly protects against compelled disclosure of sources "in any legal proceeding or trial before any court, or before any grand or petit jury, or before the presiding officer of any tribunal, or his agent or agents, or before the General Assembly, or any committee thereof, or before any city or county legislative body, or any committee thereof, or elsewhere.” KRS 421.100.

No distinction is made between civil cases, criminal cases or grand jury proceedings with respect to the assertion of the privilege. Bilney v. The Evening Star Newspaper Co., 406 A.2d 652, 658 , 5 Media L. Rep. 1931 (Md. Ct. Spec. App. 1979) ("The Maryland statute makes no distinction, either explicitly or implicitly, between civil and criminal actions; it applies to 'any legal proceeding.' Whatever arguments on the plane of public policy may be offered in support of a distinction -- one way or another -- that policy has been clearly set and stated by the General Assembly; and we are not at liberty to create, on our own a distinction for which there is no underlying basis in the law."). (Bilney interpreted the phrase "any legal proceeding," in prior statutory law; that phrase does not appear in the current statute, however, the policy underlying the decision in Bilney still appears relevant to the type of proceedings governed by the Shield Law.)