Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Various trial courts have recognized and applied the qualified constitutional privilege, and in doing so have not articulated circumstances constituting waiver of the privilege or standards for determining that the privilege has been deemed waived.
In Cooper Tire, the court considered whether a reporter had waived the Media Shield Law privilege by submitting certain materials to the court for an in camera inspection following demands from another party. Specifically, the reporter had obtained documents from a third-party source that had been marked as confidential in an ongoing proceeding. 218 Ariz. at 55-56, 178 P.3d at 1179-80. The party to the case which had designated the materials as confidential sought information regarding the identity of the confidential source and the reporter objected to turning that information over. Id.
Although no cases in this Circuit have ruled explicitly that the reporter’s privilege was waived, in Alexander v. Nixon, 444 F. Supp. 1195, 1199-1200 (D.D.C. 1978), the court suggested that if a reporter brings suit in which his sources may have relevant information, the reporter “waives his qualified privilege of silence.”
Some states have determined, either through statutory or decisional law, that a journalist in certain circumstances is deemed to have waived the privilege. However, the D.C. shield law expressly limits the scope of such a waiver.
The Idaho cases do not describe any peculiar application of the general “waiver” rule as it pertains to the reporter's privilege. It can be expected that Idaho courts would consider waiver arguments in the same manner as with other testimonial privileges. In such settings, if a witness testifies to matters that would otherwise be subject to the privilege, the privilege may be waived for all purposes, or some more limited purpose. Such a waiver is expressly required by the Idaho Rules of Evidence, which provide that a testimonial privilege is waived if “the person voluntarily discloses or consents to disclosure of any significant part of the matter or communication” I.R.E. 510.
Although the Statute does not contain a waiver provision, courts have generally held that publication of otherwise privileged source material waives the privilege only as to the specified information that has been published or broadcast. See, e.g.,People ex. rel. Scott v. Silverstein, 89 Ill. App. 3d 1039, 1044, 412 N.E.2d 695 (1980) (fact that reporter had revealed some sources did not constitute waiver of privilege); Illinois v. Fort, 15 Media L. Rep. 2251, 2254 (Ill. Cir. Ct. 1988).
K.S.A. 60-437 provides that a witness who would otherwise be in a position to claim a privilege with respect to his or her testimony will be deemed to have waived the privilege if the witness “without coercion, or without any trickery, deception, or fraud practiced against him or her, and with knowledge of the privilege, made disclosure of any part of the matter or consented to such a disclosure made by anyone.” See, also, Federal Rules of Evidence § 501.
A journalist waives the protection provided for confidential sources and information under the reporters’ privilege "if the journalist voluntarily discloses or consents to disclosure of the protected information." 16 M.R.S.A. § 61(4). No Maine cases discuss waiver of a journalistic privilege or protection for non-confidential sources or information, though clearly public disclosure would weigh heavily in ordering disclosure by subpoena. The same would apply to a partial disclosure to a lesser degree.
In Maine generally, a party or nonparty that may assert a privilege, confidentiality protection under the shield statute, or privacy protection may waive the right to hearing and any applicable privileges or protections by notifying the court in writing that they intend to do so. Me. R. Crim. P. 17(d) (attendance of witnesses); Me. R. Crim. P. 17A(f) (documentary evidence or tangible objects).
The privilege is not waived by publication of the information, but will be deemed waived if the journalist relies on confidential information in defending against a libel action. Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 (2000).
Where the source's identity has been revealed, the privilege conferred by the shield statute is waived only to the extent of the information publicly disclosed. See State v. Geis, 2 Ohio App.3d 258, 441 N.E.2d 803 (10th Dist. 1981).
As a general proposition, any right may be waived, but there are no reported Oklahoma cases discussing the circumstances under which the journalist’s privilege would be deemed waived, short of an express waiver by disclosure of the privileged information.We are aware of one unreported case in Oklahoma, Tate v. Boyd, No. 94405 (Okla. Sup. Ct. April 24, 2000), in which a subpoena was quashed despite the contention by the party issuing the subpoena that the privilege was waived because the reporter had discussed some of her unpublished information with others.
The Vermont Shield Law states that “[t]he publication or dissemination of news or information shall not constitute a waiver of the protection from compelled disclosure. . . .” 12 V.S.A. § § 1615(c). Other than Spooner v. Town of Topsham, No. 129-7-04, 2006 Vt. Super. LEXIS 24, *19-21 (Vt. Super. Orange County March 14, 2006) (reversed and remanded), there are no Vermont cases discussing the waiver of a journalist’s privilege. In Spooner, the court held that the reporter did not waive his privilege by publishing part of the information that he gathered or by conducting interviews in the presence of a third party. Id. (noting that “waiver of a reporter’s privilege operates differently from waiver of other privileges, because the rationale serves a different function. A journalist’s qualified privilege is designed to protect the overarching public policy of access to information, and not confidentiality for a particular party”) (citation omitted).
There is no West Virginia caselaw or statute addressing whether a journalist may be deemed to have waived the privilege. Because the privilege is constitutional in nature, it is likely the privilege may never be deemed to have been waived.