D. Information and/or identity of source

In In re Grand Jury Subpoenas, 8 Media L. Rptr. (BNA) 1418, 1419 (D. Colo. 1982), the United States District Court for the District of Colorado quashed a grand jury subpoena that had been issued on an UPI reporter as part of a federal investigation to determine whether a particular Secret Service agent had "leaked" a photograph obtained from the home of John Hinckley's parents to the press. The subpoena in that case sought to have the reporter divulge the identity of the source of information published.

In Bottomly v. Leucadia National Corp., 24 Media L. Rptr. (BNA) 2118 (D. Utah 1996), the United States District Court for the District of Utah quashed a subpoena on an Associated Press reporter that sought to have her disclose whether she had obtained certain published information from two attorneys in violation of a court protective order.

In the unpublished decision of Johnson v. Sch. Dist. No. 1, the United States District Court for the District of Colorado found that disclosure of the source’s identity was relevant to a central issue in the case, but quashed the motion because the plaintiff failed to demonstrate that the information could not be obtained from other available sources.  No. 12-cv-02950-MSK-MEH, 2014 U.S. Dist. LEXIS 23620 (D. Colo. Feb. 25, 2014).  In Johnson, the plaintiff school teacher alleged adverse employment actions by the school district and its board of education after the plaintiff testified before the Colorado legislature opposing legislation the defendants supported.  The local newspaper published a column containing statements that, according to the plaintiff, were not only factually inaccurate, but provided to the reporter by the defendants’ employees in retaliation for her exercise of her First Amendment rights.  The plaintiff sought the identities of the reporter’s sources to prove the defendants’ motivations and show a pattern of retaliatory behavior.  The court determined that, with the exception of one of the published statements, the information in the column reflected the reporter’s opinion derived from legally obtained records, interviews with other individuals, and being present at the plaintiff’s testimony before the legislature.  With regard to one particular statement, the court determined that the source’s identity was central to the plaintiff’s claims and described the reporter as a “first hand witness.”  However, because the plaintiff failed to demonstrate that she exhausted other sources to obtain this information, the court granted the reporter’s motion to quash.

The First Circuit courts may require that those seeking the identity of a reporter’s source exhaust all other avenues before requiring the reporter to reveal the source.  See, e.g., Gray v. St. Martin’s Press, 221 F.3d 243, 254 (1st Cir. 2000) (applying New Hampshire’s qualified reporter’s privilege requiring applicants to demonstrate that they have made all reasonable efforts to obtain the identity of the source by other reasonable means); Cusumano v. Microsoft Corp., 162 F.3d 708, 716 (1st Cir. 1998) (refusing to compel an academic to reveal the sources for his publications, despite the fact that the information was relevant and important to an antitrust case, since the information could be available through discovery of other resources); In re Bextra and Celebrex Mktg. Sales Practices and Prod. Liab. Litig., 249 F.R.D. 8, 14-15 (D. Mass. 2008) (refusing to compel medical journal to identify peer reviewers of articles submitted for publication or to produce comments of peer reviewers); Summit Tech., Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 385 (D. Mass. 1992) (holding that an investment analyst was not required to reveal the identity of his source of information until the requesting party attempted to obtain this information from other parties).  But see Alharbi v. TheBlaze, Inc., 199 F. Supp. 3d 334, 348 (D. Mass. 2016), (“However, the Supreme Court has ‘twice rejected any automatic requirement that non-confidential sources be exhausted.’  In re Special Proceedings, 373 F.3d at 45 (citing Univ. of Pa. v. E.E.O.C., 493 U.S. 182 (1990); Branzburg v. Hayes, 408 U.S. 665, 701-702, 92 S. Ct. 2646, 33 L.3d 26626 (1972)”).

The reporter’s privilege in the First Circuit extends to any discoverable information that could reveal the identity of the reporter’s source.  See, e.g., Bruno & Stillman v. Globe Newspaper Co., 633 F. 2d 583, 593-94 (1st Cir. 1980) (protecting reporter’s notes which contained the identity of certain confidential sources); Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998) (protecting notes, tape recordings, and transcripts of interviews that would reveal sources’ identities).

Courts in the Second Circuit have applied the privilege to protect both confidential sources, see Baker v. F & F Inv., 470 F.2d 778 (2d Cir. 1972), and information, see United States v. Burke, 700 F.2d 70 (2d Cir. 1983) (confidential materials), Gonzales v. National Broadcasting Co., 194 F.3d 29 (2d Cir. 1999) (non-confidential outtakes).

Courts in the Third Circuit have given strong protection both to the identity of reporters' sources and other information that might implicitly identify the source. See, e.g., Criden, 633 F.2d at 350, 360 (notwithstanding that reporter was required to testify as to certain matters, "she is to disclose not the source of any information"); Steaks Unlimited, Inc., 623 F.2d at 279 (pursuant to Pennsylvania shield law, upholding claim of privilege with respect to video "outtakes" that might "reveal the identity of secondary sources").

The reporter’s privilege in the Fourth Circuit does not specifically protect the identity of a source or information that implicitly identifies a source, but the case law indicates that the privilege is most powerful in those situations, though only applicable in a civil context. For example, in Gilbert v. Allied Chem. Corp., the first reporter’s privilege opinion in the Circuit, the defendant in a toxic tort suit subpoenaed from a communications company various confidential and nonconfidential documents related to news broadcasts. 411 F. Supp. 505 (E.D. Va. 1976). The court granted the motion to quash the subpoena to the extent it required reporters to reveal confidential sources and material that “directly leads to the disclosure of confidences.” Id. at 510-11. It also issued restrictions on the files that were required to be disclosed so the dissemination of potentially harmful information would be limited. Id. at 511-12.

In later cases, courts in the Fourth Circuit have applied the same balancing tests in the context of the identity of a confidential source as they have in the context of nonconfidential information. See Ashcraft, 218 F.3d at 287; LaRouche, 780 F.2d at 1139; Bischoff, 25 Media L. Rep. at 1287; Miller v. Mecklenburg Cty., 602 F. Supp. 675 and 606 F. Supp. 488 (W.D.N.C. 1985), aff’d 813 F.2d 402 (4th Cir. 1986), further opinion at 12 Media L. Rep. 1405 (W.D.N.C. 1985). Ashcraft, LaRouche, and Bischoff were decided on other grounds, but Miller indicates that the confidentiality of a source might tilt the balance on the “compelling interest” prong of the LaRouche or another test in favor of upholding the privilege. Miller, 602 F. Supp. at 680 (“The First Amendment protection against disclosure of the name of a confidential source is stronger than the protection against disclosure of non-confidential information revealed by that source.”).

The two leading civil cases in the Fifth Circuit construing the reporter's privilege apply the privilege specifically to protecting the identity of confidential sources. Miller v. Transamerican Press, Inc., 621 F.2d 721, 725, as modified, 628 F.2d 932 (5th Cir. 1980); In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983). There is no Fifth Circuit case directly addressing information that implicitly identifies a source of information, though the Selcraig court approved the district court's graduated methodology under which it began an in camera inquiry of the reporter with general questions, asking increasingly specific questions only as necessary, in order to uphold the privilege to the greatest extent possible. See Selcraig, 705 F.2d at 795, 799.

In civil contexts, federal courts within the Sixth Circuit have applied the First Amendment to bar compelled disclosure of a newspaper's confidential sources. Southwell v. Southern Poverty Law Ctr., 949 F. Supp. 1303 (W.D. Mich. 1996); NLRB v. Midland Dailey News, 151 F.3d 472 (6th Cir. 1998).

In the context of a grand jury investigation of a homicide, the Sixth Circuit refused to overturn a contempt conviction of a television reporter who refused to comply with a grand jury subpoena for video outtakes showing the likenesses of potential suspects who expected anonymity when the journalist taped them. In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987).

If the First Amendment bars enforcement of subpoenas against the press in the context of criminal litigation or investigations, the federal courts have given no indication as to whether it would apply to information that might lead to the identity of a confidential source, whether it would apply only to the information that actually identifies a confidential source, or whether it would apply at all. In Grand Jury Proceedings, the Sixth Circuit opined that there is no special First Amendment protection from grand jury subpoenas, but that opinion is likely nonbinding dicta. Southwell v. Southern Poverty Law Ctr., 949 F.Supp. 1303 (W.D. Mich. 1996); see NLRB v. Midland Daily News, 151 F.3d 472 (6th Circ. 1989).

In the civil context, federal courts have applied the First Amendment to bar compelled disclosure of the actual identities of confidential sources, but have not addressed whether the First Amendment would bar compelled disclosures of information likely to lead to the identity of a confidential source. NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998); Southwell v. Southern Poverty Law Ctr., 949 F.Supp. 1303 (W.D. Mich. 1996).

Even when a First Amendment privilege is not recognized, some courts have protected journalists. A Sixth Circuit district court found that the reporters at issue did not have to disclose information from, or names of, confidential sources because the information sought could be obtained from other sources, the request was overly broad and burdensome, and the information may duplicate of information gathered from other sources. In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003).

Another Sixth Circuit district court found the relationship between the information sought and the plaintiff's claim too tenuous and declined to subpoena a reporter. The reporter had gained access to pre-employment psychological evaluations of a police officer who was making a claim for discrimination. Lentz v. City of Cleveland, No. 1:04CV0669, 2006 U.S. Dist. LEXIS 32078 (N.D. Ohio May 22, 2006). However, earlier in the same case, the court had found that the reporter could be subpoenaed for the same information when it related to invasion of privacy claims against his employer, as there was a clear relationship between the information and those claims. Lentz v. City of Cleveland, 410 F. Supp. 2d 673 (N.D. Ohio 2006).

Disclosure may be compelled where 1) the reporter is not being harassed, 2) the information is being sought in good faith, 3) the information has more than a remote or tenuous relationship with the case, and 4) there is a legitimate need for disclosure, the identity of a source may be compelled. Hade v. City of Fremont, 233 F. Supp. 2d 884 (N.D. Ohio 2002) (citing the test devised in In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987)).

In Solaia Technology, LLC v. Rockwell Automation, Inc., No. 03 C 6904, 2003 WL 22597611 (N.D. Ill. Nov. 10, 2003), the court tentatively held that a subpoena served in an antitrust case should be quashed to the extent it sought the identity of the author of an anonymous letter published in a manufacturing industry magazine. Id. at *2. The court reserved ruling pending a related decision in another federal district court that may have resulted in the application of the Illinois statutory reporter's privilege. Id. at *3.

Pre-McKevitt rulings also have protected the source of the information. Neal v. City of Harvey, Illinois, 173 F.R.D. 231, 234 (N.D. Ill. 1997) (quashing subpoena seeking undisclosed sources partially because "names of sources are covered by the privilege"); Warnell v. Ford Motor Co., 183 F.R.D. 624, 626 (N.D. Ill 1998) (ordering that subpoenaed videotape be produced but that cameraman's voice be redacted in the event that news-gatherer argued cameraman was the source); Gulliver's Periodicals Ltd. v. Chas. Levy Circulating Co., 455 F. Supp. 1197, 1204 (N.D. Ill. 1978) (quashing subpoena because subpoena sought identity of sources who had given information upon promise that their identities would remain secret).

While the Eighth Circuit has not ruled on this issue, the lower court in Fridell noted that "most federal courts have assumed the privilege protects 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).

The Continental Cablevision court held that "reporters enjoy a qualified privilege . . . to withhold from discovery in a civil case confidential or non-confidential sources, materials, or other information where such discovery would impinge on the ability of the media to gather and disseminate news." Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427, 435 (E.D. Mo. 1984); see also Richardson v. Sugg, 220 F.R.D. 343, 347 (E.D. Ark. 2004).

The reporter’s privilege will specifically protect the identity of a source in a non-grand jury case if the court concludes that the First Amendment consideration outweighs the plaintiff’s need for the evidence. See, e.g., L.A. Mem’l Coliseum Comm’n v. Nat'l Football League, 89 F.R.D. 489, 492–95 (C.D. Cal. 1981) (granting reporters’ motions to quash because of a failure to show an exhaustion of other means of obtaining information or that the information sought went to the heart of the underlying claims); F. Marc Schaffel Prods., LLC v. TMZ Prods., Inc., No. CV-10-01306-GHK, 2010 WL 11549388, at *4 (C.D. Cal. Dec. 16, 2010) (qualified reporter’s privilege could not be overcome because the plaintiff had not yet exhausted alternative sources). But see Farr, 522 F.2d at 469.

Alabama's shield statute, Ala. Code § 12-21-142, specifically protects "sources," which has been interpreted to include the identity of a source as well as a reporter's documents, notes and other materials related to an interview. Ex parte Sparrow, 14 F.R.D. 351 (N.D. Ala. 1953)(holding that Alabama's shield statute protected the identities of sources who had given information in confidence); Brothers v. Brothers, No.: DR-86-200107, 16 Med. L. Rptr. 1031 (Marshall County, Ala. Cir. Ct., Jan. 9, 1989)(holding that a reporter's documents, notes, materials, and even the location of the interview were privileged under Alabama's shield statute).

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Trial courts judges have recognized the privilege as protecting the identity of a source, as well as information that would identify a source. The state's shield law provides that a reporter may not be compelled to disclose the source of information procured or obtained while acting in the course of duties as a reporter, unless the subpoenaing party makes the showing required by the statute.

The Arizona Shield Law protects the identity of confidential sources, including information that may be used to identify such sources. Cooper Tire, 218 Ariz. at 58-59, 178 P.3d at 1182-83 (finding that statute applied where subpoena would have forced a reporter to disclose the source of confidential information); Matera, 170 Ariz. at 450, 825 P.2d at 975 (statute applies where a subpoena would cause a journalist "to reveal confidential sources of information [or] would impede the gathering of information"); In re Hibberd, 262 GJ 75 (quashing subpoena for tape recordings, notes, computer and other data that could be used to identify a confidential source).

The statute specifically mentions that the "source of the information" is protected absent the showing of bad faith, malice, or action contrary to the interest of the public welfare. In Saxton, supra, the only case to come before the Arkansas Supreme Court, the issue was whether the reporter herself had to disclose the source of her information.

California’s reporter’s privilege explicitly protects “the source of any information” and “any unpublished information” procured while gathering information for communication to the public. Cal. Const. art. 1, § 2(b); Cal. Evid. Code § 1070. California cases have recognized that these enactments protect against disclosure of the identity of a source or any information that might lead to the identity of the source. E.g., Rosato v. Superior Court, 51 Cal. App. 3d 190, 218, 124 Cal. Rptr. 427 (1975).

In addition, a trio of cases has considered whether a reporter can be required to divulge the source of information regarding a pending trial. Two of these cases, Farr v. Superior Court, 22 Cal. App. 3d 60, 99 Cal. Rptr. 342 (1971), and Rosato, 51 Cal. App. 3d 190, were decided before the reporter’s privilege was elevated to the California Constitution. In both cases, the court held that to protect the integrity of the judiciary and the rights of the defendant, the reporter could be required to divulge the source information. Farr, 22 Cal. App. 3d at 70; Rosato, 51 Cal. App. 3d at 222-24. However, these cases presumably were overruled when the shield law was incorporated into the constitution. See Liggett v. Superior Court, 260 Cal. Rptr. 161, 168 (1989) (unpub. dec.); Delaney v. Superior Court, 249 Cal. Rptr. 60, 65 (1988) (unpub. dec.). A more recent case, In re Willon, 47 Cal. App. 4th 1080, 55 Cal. Rptr. 2d 245 (1996), questioned the continuing viability of these cases in light of the constitutional amendment. Id. at 1096-97. The court held that “Article I, section 2(b) offers no real protection if it can be overridden merely by a conclusive presumption that nondisclosure will be harmful to the accused.” Id. Consequently, the court held:

[W]here a violation of a protective or “gag” order has already occurred, a court should determine the necessity of disclosure of the newsperson’s source by addressing two principal considerations in light of all the relevant circumstances: (1) If the newsperson does not disclose the identity of the source, is there a substantial probability of future violations, or “leaks,” that will impair the defendant’s ability to obtain a fair trial? and (2) Are there reasonable alternatives to disclosure that will protect the interests asserted by both the newsperson and the defendant?

The first inquiry suggests two secondary questions: (a) is there any indication that further leaks are likely to occur; and (b) will those leaks, if published, make it impossible to obtain an impartial jury in the chosen venue? Factors relevant to these determinations include the nature and extent of the publicity, the amount of information already in the public domain, the existence of prejudicial information not yet released to the public, the size of the county from which prospective jurors will be drawn, and the potential of voir dire or other measures to eliminate any prejudice caused by the publicity.

Id. at 1099.

The Colorado Press Shield law protects journalists from compelled disclosure of "[n]ews information," C.R.S. § 13-90-119(2), defined as any "knowledge, observation, notes, documents, photographs, films, recordings, videotapes, audiotapes, and reports, and the contents and sources thereof . . . ." C.R.S. § 13-90-119(1)(b). The statute defines "[s]ource" as "any person from whom or any means by or through which news information is received or procured by a newsperson, while engaged as such, regardless of whether such newsperson was requested to hold confidential the identity of such person or means." C.R.S. § 13-90-119(1)(f).

The Shield Law protects information and the identity of sources of information. Under the statute, “‘Information’ has its ordinary meaning and includes, but is not limited to, any oral, written or pictorial material, whether or not recorded, including any notes, outtakes, photographs, video or sound tapes, film or other data of whatever sort in any medium.” Conn. Gen. Stat. §52-146t (a)(1). In addition to also protecting both confidential and non-confidential sources, the statute protects “information that would tend to identify” such sources. Conn. Gen. Stat. §52-146t (b).

The qualified privilege specifically protects the identity of a source absent a compelling need for disclosure, i.e., that the source’s identity is crucial to the matter and the party seeking the information has exhausted all other reasonable alternative means of obtaining the information. E.g., Zerilli v. Smith, 656 F.2d 705, 713 (D.C. Cir. 1981); Grunseth v. Marriott Corp., 868 F. Supp. 333, 335 (D.D.C. 1994).

Case law from this Circuit also suggests that the privilege protects information that implicitly identifies a source.  For example, in Tavoulareas v. Piro, 93 F.R.D. 35 (D.D.C. 1981), the court determined that whether defendant The Washington Post could be compelled to respond to the plaintiff’s discovery requests depended in part on whether the responses would reveal the identities of any confidential sources.  Indeed, the court held that “[t]o the extent . . . that The Post concludes in exercise of good faith that a particular response may expose a source to whom the defendants have extended an assurance of confidentiality, The Post need not answer.”  Id. at 40 (emphasis added); see also NLRB v. Mortensen, 701 F. Supp. 244, 247 (D.D.C. 1988) (rejecting argument that First Amendment interests were not implicated where litigant sought confirmation or verification of statements and not the identity of confidential sources, as “[r]egardless of whether the movant seeks confidential or non-confidential sources, or whether they seek disclosure or verification of statements, the [movant] is attempting to examine the reportorial and editorial process”).

In adjudicative hearings, a reporter may decline to testify regarding either the source or content of information, so long as the reporter affirms the importance of nondisclosure. 10 Del. C. § 4322; see also supra Part III.C. The threshold issue is whether disclosing the content would reveal the source of the information. This is true whether the information would directly or implicitly identify the source of the information. If disclosure would not reveal the source, the judge uses a balancing test to determine whether that the public interest in disclosure outweighs the public interest in confidentiality. § 4323 (a); see also Fuester v. Conrail, 22 Media L. Rep. (BNA) 2376 (Del. Super. 1994).

The District’s shield law provides absolute protection for the identity of a source.  Given this broad protection, the law arguably protects information that implicitly would identify a source.  See, e.g., Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2382 n.10 (D.C. Super. Ct. 1999) (noting that “sources” has been defined by the Third Circuit to include “not only the identity of the person, but . . . documents, inanimate objects, and all sources of information”) (internal marks omitted).  However, no D.C. case law exists on this precise point.

The shield law expressly protects journalists from disclosure of the identity of any sources as well as the information obtained from them. § 90.5015(2), Fla. Stat. (2023).

The privilege protects the identity of sources and any records that would tend to reveal such sources. See, e.g., In re Paul, 270 Ga. 680, 684, 513 S.E. 2d 219, 223 (1999) (“[T]he statutory language does not distinguish between the source's identity and information received from that source.”).

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

Although the Idaho decisions create somewhat of a moving target, it is apparent that most of the decisions have focused, in large part, upon whether the fact pattern involves a confidential source or information. In Caldero, Sierra Life, Marks and Wright, the court was faced with circumstances in which a reporter had been asked to reveal the identity and/or substance of confidential, or at least unpublished, sources and information. Caldero, Sierra Life and Marks refused to recognize a privilege that would protect against the disclosure of a confidential source or information. However, the Wright decision clearly holds that upon those types of facts, the privilege can be invoked and it is up to the trial court to apply the Branzburg balancing test and determine whether the privilege carries the day or not.

Notably, the Wright court went further in its decision and discussed the application of the privilege in other contexts as well, although in doing so it created a debate as to whether the court had created a more overarching privilege or simply indulged in crafting wishful dicta. The Salsbury court apparently concluded the latter, as it took pains to limit the holding in Wright to its specific facts, which did involve confidential and unpublished information.

“To further the public interest in a free press, the [Statute] protects not only identities of sources but also the ‘means from or through which the news or information was obtained.’” Kelley v. Lempesis, No. 13-cv-4922, 2015 WL 4910952, at *2 (N.D. Ill. Aug. 17, 2015) (quoting 735 ILCS 5/8–902(c)).  The courts have “interpreted the ‘means’ clause ‘to protect more than simply the names and identities of witnesses, informants, and other persons providing news to a reporter,’” noting that “the legislature did not limit the scope of [the Statute] by inserting either ‘the name of’ or ‘the identity of’ before ‘the source of any information.’”  Id. (quoting People v. Slover, 323 Ill. App. 3d 620, 624, 753 N.E.2d 554, 557-58 (2001)).  See also Simon v. Northwestern Univ., 321 F.R.D. 328, 332, 45 Media L. Rep. 1961 (N.D. Ill. 2017) (“audio and visual data, notes, drafts, and transcribed interviews gathered by” filmmakers in creation of documentary were “the source from which [documentary] was created” and covered by statute).

 

The Statute also protects information that implicitly identifies a source of information. For example, in FMC Corp. v. Capital Cities/ABC Inc., 915 F.2d 300 (7th Cir. 1990), ABC broadcast a story about the pricing policies of a Defense Department contractor, FMC Corp., displaying copies of documents from FMC’s files. FMC asserted that the original documents were missing from its files and sued for conversion. ABC refused to return the documents or show them to the plaintiff, asserting that doing so would violate its First Amendment rights and the Statute. The Seventh Circuit held that ABC would have to return any originals that it possessed, and that it would have to provide FMC with copies of documents that FMC no longer possessed. The court held that under the Statute, ABC could furnish the information to FMC in a manner designed to protect any of ABC’s sources.

Indiana’s shield law specifically protects the identity of a reporter’s source. Ind. Code § 34-46-4-2. It does not protect the information itself. Such information might be protected under a separate First Amendment privilege in civil cases, if such privilege is still considered viable after the Supreme Court of Indiana rejected such a privilege on the facts presented in In re WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998). See In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146 (Ind. App. 1986).

The Iowa reporter's privilege specifically protects confidential sources and the identity of the confidential source was in issue in Winegard and Waterloo/Cedar Falls Courier. While the cases do not discuss information that implicitly identifies a source of information, given the strength of the protection for confidential sources it is anticipated that ancillary information that implicitly identifies a source similarly would be protected.

K.S.A. 60-481 provides that:

Except as provided in K.S.A. 60-482 . . . a journalist cannot be adjudged in contempt . . . for refusing to disclose . . . any information or the source of any such information procured while acting as a journalist.

K.S.A. 60-482 provides that:

A journalist may not be compelled to disclose any previously undisclosed information or the source of any such information procured while acting as a journalist . . .  (emphasis supplied).

If the qualified privilege based on the First Amendment applies, it protects the identity of a confidential source, as well as information implicitly identifying the source, under both state and federal case law.  Grandbouche v. Clancy, 825 F.2d 1463 (10th Cir. 1987); Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977); In re Pennington, 224 Kan. 573, 581 P.2d 812, 815 (1978), cert. denied, 440 U.S. 929 (1979).

Kentucky’s shield law specifically protects the identity of a source as well as information that may implicitly identify a source. See Branzburg v. Pound, 461 S.W.2d 345, 347 (Ky. 1971), aff'd sub nom. 408 U.S. 665 (1972).

The Louisiana statutory reporter's privilege for sources includes not only the name of the source, but "any disclosure of information, such as place of employment, which would tend to identify him." Burns, 484 So.2d at 659.

The shield law statute applies to both confidential information and the identity of a confidential source. 16 M.R.S.A. § 61(1).

Md. Cts. & Jud. Proc. Code Ann. § 9-112(c)(1).

Lightman v. State, 294 A.2d 149 (Md. Ct. Spec. App. 1972), aff'd, 295 A.2d 212 (Md. 1972), cert. denied, 411 U.S. 951 (1973) -- The newsman may not be compelled to answer questions aimed, directly or indirectly, at determining the source's identity.

The privilege does not appear to distinguish between protecting the identity of a source and information that implicitly identifies a source of information.

As noted above, the statutory privileges prohibiting grand jury and prosecutor-issued subpoenas protect the identity of, and information supplied by, the source without respect to confidentiality. See MCL 767.5a; MCL 767A.6(6). However, in civil and other criminal matters, whether the information and the informant's identity are confidential is relevant to whether the court permits the subpoenaed information to be compelled. Courts are less likely to prohibit subpoenas for non-confidential information. See Marketos, 185 Mich. App. at 199 (holding that the Michigan press shield law provides no protection for non-confidential materials in a civil case).

All forms of the privilege in Minnesota protect the identity of a confidential source or information that would tend to identify a confidential source.

The qualified privilege appears to apply to both information and the identity of a source. In Brinston v. Dunn, the federal district court applied the qualified privilege analysis to information gathered in the course of writing an article. 919 F. Supp. 240, 244 (S.D. Miss. 1996). In McKee v. Starkville, another federal court in Mississippi applied the qualified privilege to protect the disclosure of the identity of a confidential source. 11 Med. L. Rptr. 2312, No. EC-82-36-NB-D, (N.D. Miss. Jan. 27, 1985). Only one of the trial court orders delineates between information and the identity of source, State v. Byron de la Beckwith, Hinds County Circuit Court, No. 90-3-495CR H (July 28, 1993), which protected a journalist from divulging "the source of information that he obtained in the course of his professional newsgathering activities."

The court in Classic III, 954 S.W.2d at 655, noted that the claim of privilege generally is strongest when the information sought is the names of persons who have given information in confidence to the reporter.

The law protects both the information obtained and the identity of the source of the information.

The statute specifically protects the identity of sources. Neb. Rev. Stat. § 20-146(1). So long as the information has not been published or broadcast, the statute would also protect information that implicitly identifies the source of information.

NRS 49.275 specifically protects the identity of a source. It also protects information that implicitly identifies a source of information.  This protection is available for both published and unpublished information obtained by a reporter in that person’s professional capacity.

The cases establish that the privilege protects the identity of a source. Opinion of the Justices, 117 N.H. 386 (1977). In State v. Siel, the Court ruled:

a defendant may overcome a press privilege to withhold a confidential source of news only when he shows: (1) that he has attempted unsuccessfully to obtain the information by all reasonable alternatives; (2) that the information would not be irrelevant to his defense; and (3) that, by a balance of the probabilities, there is a reasonable possibility that the information sought as evidence would affect the verdict in his case.

Id. at 259. Continuing, it stated:

The third prong requires, first, that the information sought by the defendant must be material, in that it must go to the heart of the case. It must be helpful to the defendant's efforts to disprove an element of the crime, prove a defense, or reduce the classification or gradation of the crime charged. A matter not material, as here defined, is information sought solely to show a prior inconsistent statement by a witness.

Next, the defendant must show that there is a reasonable possibility that the information will affect the verdict. Requiring the defendant to demonstrate a probability that the information will affect the verdict would place too severe a burden on him, while allowing the privilege to be overcome by a demonstration of a mere possibility that the information will help the defendant would permit mere speculation to displace a constitutionally-grounded privilege.

Id. (citations omitted).

In Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., the Court adopted a standard for trial courts to use when “a plaintiff requests disclosure of the identity of an anonymous defendant who has posted allegedly defamatory material on the Internet.” 160 N.H. at 237. The Court held that the appropriate standard was the Dendrite test, in which the trial court “balance[s] the equities and rights at issue,” which include the plaintiff’s right to protect its reputation and the defendant’s right to anonymous free speech.  Id. at 239 (citing Dendrite International, Inc. v. Doe Number 3, 775 A.2d 756 (Ct. App. Div. 2001) (internal quotation marks omitted)).  The Court stated that first the plaintiff shall set forth a prima facie case, followed by a balancing test:

[T]he trial court should first require the plaintiff to undertake efforts to notify the anonymous poster that they are the subject of a subpoena or application for an order of disclosures, and withhold action to afford the fictitiously-named defendants a reasonable opportunity to file and serve opposition to the application . . . . The court shall also require the plaintiff to identify and set forth the exact statements purportedly made by each anonymous poster that plaintiff alleges constitutes actionable speech.

Finally, assuming the court concludes that the plaintiff has presented a prima facie cause of action, the court must balance the defendant’s First Amendment right of anonymous free speech against the strength of the prima facie case presented and the necessity for the disclosure of the anonymous defendant’s identity to allow the plaintiff to properly proceed.

160 N.H. at 239. The Court reiterated that the process must be undertaken on a case-by-case basis.    

The New Jersey Shield Law by its specific terms protects both the source and the information held by a reporter. Because it protects both the source and the information, any and all information that would identify the source, directly or indirectly, is privileged.

The privilege codified in Rule 11-514 protects “a confidential source who provided information to [a] person in the course of [the person’s pursuit of] professional news activities,” and the rule defines a “confidential source” as someone whose “identity … is disclosed privately and not intended for further disclosure except to other persons in furtherance of the purpose of the communication.” Rule 11-514(A)(1), (B)(1) NMRA.  The privilege also protects “any confidential information obtained in the course of pursuing professional news activities.” Rule 11-514(B)(2) NMRA. (Confidential information that a journalist obtains or sources that he consults while “participat[ing] in any act of criminal conduct” are not protected. Rule 11-514(A)(3) NMRA.) Rule 23-107(H) specifically protects “film, videotape, still photographs, or audio reproductions developed during or by virtue of coverage of a judicial proceeding."

The statutory privilege applicable to nonjudicial proceedings protects “(1) the source of any published or unpublished information obtained in the gathering, receiving or processing of information for any medium of communication to the public; or (2) any unpublished information obtained or prepared in gathering, receiving or processing of information for any medium of communication to the public.” NMSA 1978, § 38-6-7(A) (1973).

With respect to confidential information, the Shield Law protects absolutely "any news obtained or received in confidence or the identity of the source of any such news." Civ. Rights § 79-h(b). Similarly, the qualified privilege extends to "any unpublished news obtained or prepared by a journalist or newscaster . . . or the source of any such news, where such news was not obtained or received in confidence." Civ. Rights § 79-h(c).

If a confidential source's identity is disclosed (e.g., voluntarily by the source), the information received by the reporter from the source is treated as nonconfidential, and it is protected by the qualified privilege. See People v. Lyons, 574 N.Y.S.2d 126, 129, 151 Misc.2d 718, 722 (City Ct. Buffalo 1991) (to consider a waiver by a source as a waiver of the entire privilege would have the absurd result of granting less protection to "news which was originally confidential and entitled to an absolute privilege" than is granted to "news which from the outset was never confidential," a premise which "would result in a further intrusion upon the news media"). If a journalist discloses non-confidential information otherwise protected by § 79-h to a third party, the qualified privilege is waived "with respect to the limited information shared." Guice-Mills v. Forbes, 12 Misc.3d 852, 857, 819 N.Y.S.2d 432, 436 (N.Y. Sup. Ct. N.Y. Cty. 2006).

While the shield law does not specifically discuss protecting the identity of sources or material that implicitly identifies sources, it protects "any confidential or non-confidential information . . . obtained . . . while acting as a journalist." N.C. Gen. Stat. § 8-53.11(b). This "information" includes the identity of a reporter's sources, and North Carolina trial courts have consistently recognized a reporter's privilege to protect the identity of sources. See, e.g., State v. Peterson, 31 Media L. Rep. 2501 (N.C. Superior Ct. 2003) (quashing subpoena seeking notes or memoranda that would reflect contact between law enforcement officials and members of the news media); State v. Wallace, 23 Media L. Rep. 1473 (N.C. Superior Ct. 1995) (protecting journalist's confidential police sources); State v. Hagaman, 9 Media L. Rep. 2525 (N.C. Superior Ct. 1983) (quashing defendant's subpoena demanding that reporter testify about his confidential sources).

Confidentiality is one factor the court may consider in determining whether to allow disclosure. The plain language of the statute does not prohibit revealing a source.

With respect to the statutory protection, the information deemed privileged is limited to the identity of the source. Forest Hills Utility Co. v. City of Heath, 37 Ohio Misc. 30, 302 N.E.2d 593 (Licking C.P. 1973) (civil case); State v. Geis, 2 Ohio App.3d 258, 441 N.E.2d 803 (10th Dist. 1981) (criminal case). The phrase "source of any information" in Ohio's statutes does not mean anything from which information may be derived, including a newsperson's notes, tapes and records. By use of the phrase "source of any information," the legislature intended to give newspersons a testimonial privilege from disclosing only the identity of the source. State v. Geis, supra.

One court has suggested that, to be defined as a "source" under the shield law, an informant should have first-hand knowledge of the information given to the reporter. Svoboda v. Clear Channel Communications, Inc., 156 Ohio App. 3d 307, 2004-Ohio-894, 805 N.E.2d 559 (6th Dist.).

The statute protects the identity of the source of published or unpublished information.  The protection is not dependent on whether the journalist made an express promise of confidentiality to the source.

ORS 44.520 specifically protects a reporter's source for either published or unpublished information, including that which could implicitly identify a source.

1. Shield Law

The Pennsylvania Shield Law specifically protects the identity of a confidential “source of . . . information.” 42 Pa. Cons. Stat. § 5942(a); In re Taylor, 193 A.2d 181 (Pa. 1963). The Shield Law also protects information that might “reasonably lead to the discovery of the identity” of the source of information. Commonwealth v. Bowden, 838 A.2d 740, 750-51 (Pa. 2003); see also Castellani v. Scranton Times, L.P., 956 A.2d 937, 954 (Pa. 2008) (explaining that the law protects “any information which could expose the source’s identity”); Nothstein v. Velodrome Fund, Inc., 2020 Pa. Dist. & Cnty. Dec. LEXIS 2735, at *3-4 (Lehigh Cty. C.C.P. Oct. 6, 2020) (holding that Shield Law and reporter’s privilege blocked a party from asking journalist to confirm that he was not the confidential source of reported information because a response to that inquiry would reduce the number of potential sources and “possibly lead to the identity of the confidential source”).

2. First Amendment privilege

The First Amendment privilege protects the identity of a source as well as information that may reasonably lead to the discovery of the identity of a source of information. Davis v. Glanton, 705 A.2d 879, 885 (Pa. Super. 1997).

The plain language of the statute applies to protect a person from: "reveal[ing] confidential association, . . . disclos[ing] any confidential information, or disclos[ing] the source of any confidential information received or obtained." R.I. Gen. Laws § 9-19.1-2. Accordingly, the statute protects both the identity of a source and information implicitly identifying the source of information.

The language of the statute is broad, and seeks to protect against compelled disclosure of "any information...obtained or prepared in the gathering or dissemination of news," so, in theory, the identity of the source would be protected. This provision has not been the subject of litigation at the time of the preparation of this outline.

The privilege adopted in Hopewell specifically protects the identity of a source.

The Tennessee shield law specifically protects "any information or the source of any information procured for publication or broadcast." Tenn. Code Ann. § 24-1-208(a); see Moman v. M.M. Corp., No. 02A01-9608-CV00182, 1997 WL 167210, at *2, 1997 Tenn. App. LEXIS 233 (Tenn. Ct. App. Apr. 10, 1997).

The privilege protects the identity of the source, as well as the information, document, or other item that could identify the source or that was provided by the source. In the civil context, the qualified privilege can be overcome if the subpoenaing party can show by clear and specific evidence the following:

(1) all reasonable efforts have been exhausted to obtain the information from alternative sources;

(2) the subpoena is not overbroad, unreasonable, or oppressive and, when appropriate, will be limited to the verification of published information and the surrounding circumstances relating to the accuracy of the published information;

(3) reasonable and timely notice was given of the demand for the information, document, or item;

(4) in this instance, the interest of the party subpoenaing the information outweighs the public interest in gathering and dissemination of news, including the concerns of the journalist;

(5) the subpoena or compulsory process is not being used to obtain peripheral, nonessential, or speculative information; and

(6) the information, document, or item is relevant and material to the proper administration of the official proceeding for which the testimony, production, or disclosure is sought and is essential to the maintenance of a claim or defense of the person seeking the testimony, production, or disclosure.

Tex. Civ. Prac. & Rem. Code §22.024.

In the criminal context, the identity of a confidential source is privileged unless the requesting party has exhausted reasonable efforts to obtain the material from another source and (1) the journalist was an eye witness to a felony, (2) the journalist received a confession of the commission of a felony, or (3) probable cause exists that the source committed a felony. Tex. Code Crim. Proc. art. 38.11, §§4(a)(1)-(3).  A court may also compel the disclosure of the identity of a confidential source if it “is reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm.”  Id. at §4(a)(4).

Rule 509 “provides the greatest protection to the name of a confidential source or other information that would lead directly to the disclosure of the source's identity.” Utah R. Evid. 509 advisory committee note (2008). For information obtained on condition of confidentiality, Rule 509 requires the person seeking the information to demonstrate that the need for the information “substantially” outweighs the interests of society in protecting the information from disclosure. Id. 509(c). “For other unpublished news information, however, the person claiming the privilege must demonstrate that the need to encourage the free flow of information outweighs the need for disclosure.” Utah R. Evid. 509 advisory committee note (2008).

The Vermont Shield Law provides absolute protection for the identity of the source of confidential news or information.  12 V.S.A. § 1615(b)(1)(A)(i).

The privilege protects the identity of a confidential source. Brown v. Commonwealth, 214 Va. 755, 757, 204 S.E. 2d 429, 431 (1974); LaRouche v. Nat’l Broad. Co., 780 F.2d 1134 (4th Cir. 1986) (applying privilege to protect confidential sources in a defamation action); Horne v. WTVR, LLC, Civ. No. 3:16-cv-000092, 2017 WL 2727900 (E.D. Va. Feb. 13, 2017) (refusing to compel disclosure of a confidential source in a defamation case), aff’d, 893 F.3d 201 (4th Cir. 2018); Bischoff v. United States, No. 2:96CV923, 1996 WL 807391 (E.D. Va. Sept. 20, 1996) (quashing subpoena in civil case alleging that the government provided confidential tax information to a reporter). There is also a valid argument that the privilege protects information that could implicitly identify a confidential source. See Philip Morris Cos. v. Am. Broad. Co., 36 Va. Cir. 1 (Richmond 1994) (extending privilege to subpoenas issued to third parties with the intent of indirectly learning identity of confidential sources).

Washington's case law has not yet squarely addressed this issue.

Also, Sections 1(a) and 3 of the shield statute specifically protect from disclosure information that would identify a confidential source. See RCW 5.68.010(1); Republic of Kazakhstan, 192 Wash. App. at 784-86.

W.Va. Code § 57-3-10 applies to circumstances where information concerning the identity of a reporter’s confidential source is concerned.  The reporter’s protection from compelled disclosure under the statute, regardless of the type of proceeding, is very high. A reporter cannot be compelled to identify a confidential source or produce information from which a confidential source may be identified without the consent of the confidential source, unless such testimony is necessary to prevent imminent death, serious bodily injury or unjust incarceration.

The shield law in Wisconsin explicitly protects the identity of a source as well as unpublished information gathered by a reporter.

Wyoming has no statutory or reported case law in this area.