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D. Other sources

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  • 3rd Circuit

    The Third Circuit has indicated that, in addition to being derived from the First Amendment, the qualified reporter's privilege also derives from the common law.  Riley, 612 F.2d at 714-15.

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  • Alabama

    There are no other sources of a reporter's privilege in Alabama, but as in any case, a court may quash a subpoena on the grounds that the subpoena is unduly burdensome, ALA. R. CIV. P. 45 (c)(3)(A)(iv), or unreasonable, oppressive, or unlawful. ALA. R. CRIM. P. 17.3 (c). See Williams v. State, 489 So.2d 4, 8 (Ala. Crim. App. 1986) (holding that the trial court properly granted a motion to quash a subpoena duces tecum because it was unduly burdensome and the newspaper articles sought were available through other means.)

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  • Alaska

    Alaska Rules of Court, through Evidence Rule 501, recognize application of statutory privileges. The reporter's privilege is not expressly addressed.

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  • Arizona

    We have found no other state-law based sources of the reporter's privilege in Arizona.

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  • Arkansas

    There are no other sources of a reporter's privilege in Arkansas, such as court rules, attorney general opinions, or administrative procedures.

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  • California

    There are no other sources of a reporter’s privilege in California.

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  • Colorado

    In 1991, during the same legislative session in which the Colorado General Assembly enacted the Press Shield Law, it also adopted a statute addressing the newsperson's privilege in administrative proceedings. The preamble provides ample evidence of the importance the Assembly placed on a free press and an informed citizenry.

    C.R.S. 24-72.5-101 --106 states as follows:

    C.R.S. § 24-72.5-101

    The general assembly finds that an informed citizenry, which results from the free flow of information between citizens and the mass media, and the preservation of news information sources for the mass media is of vital concern to all people of the state of Colorado and that the interest of the state in such area is so great that the state shall retain jurisdiction over the use of any subpoena power or the exercise of any other authority by any governmental entity to obtain news information or the identification of the source of such information within the knowledge or possession of newspersons, which is hereby declared to be a matter of statewide concern.

    C.R.S. § 24-72.5-102

    As used in this article, unless the context otherwise requires:

    (1) "Governmental entity" means the state and any state agency or institution, county, city and county, incorporated city or town, school district, special improvement district, authority, and every other kind of district, instrumentality, or political subdivision of the state organized pursuant to law. "Governmental entity" shall include entities governed by home rule charters.

    (2) "Mass medium" means any publisher of a newspaper or periodical; wire service; radio or television station or network; news or feature syndicate; or cable television system.

    (3) "News information" means any knowledge, observation, notes, documents, photographs, films, recordings, videotapes, audiotapes, and reports, and the contents and sources thereof, obtained by a newsperson while engaged as such, regardless of whether such items have been provided to or obtained by such newsperson in confidence.

    (4) "Newsperson" means any member of the mass media and any employee or independent contractor of a member of the mass media who is engaged to gather, receive, observe, process, prepare, write, or edit news information for dissemination to the public through the mass media.

    (5) "Press conference" means any meeting or event called for the purpose of issuing a public statement to members of the mass media, and to which members of the mass media are invited in advance.

    (6) "Proceeding" means any investigation, hearing, or other process for obtaining information conducted by, before, or under the authority of any executive or administrative body, panel, or officer of the state of Colorado or any city, county, city and county, or other political subdivision of the state. Such term shall not include any investigation, hearing, or other process for obtaining information conducted by, before, or under the authority of the general assembly.

    (7) "Source" means any person from whom or any means by or through which news information is received or procured by a newsperson, regardless of whether such newsperson was requested to hold confidential the identity of such person or means.

    C.R.S. § 24-72.5-103

    (1) Notwithstanding any other provision of law to the contrary, and except as otherwise provided by section 24-72.5-104, no newsperson shall, without the express consent of such newsperson, be compelled to disclose, be examined concerning refusal to disclose, or be subject to any process to compel disclosure or to impose any sanction for nondisclosure in connection with any proceeding of a governmental entity for refusal to disclose any news information received, observed, procured, processed, prepared, written, or edited by a newsperson, while acting in the capacity of a newsperson; except that the privilege of nondisclosure shall not apply to the following:

    (a) News information received at a press conference;

    (b) News information that has actually been published or broadcasted through the mass media;

    (c) News information based on a newsperson's personal observation of the commission of an act which, under any statute, law, or ordinance, is deemed to be a criminal offense if substantially similar news information cannot reasonably be obtained by any other means;

    (d) News information based on a newsperson's personal observation of the commission of a class 1, 2, or 3 felony.

    C.R.S. § 24-72.5-104

    (1) Notwithstanding the privilege of nondisclosure established in section 24-72.5-103, a governmental entity otherwise authorized by law to issue or obtain subpoenas may subpoena a newsperson in order to obtain news information by establishing, by a preponderance of the evidence:

    (a) That the news information is directly relevant to a substantial issue involved in the proceeding;

    (b) That the news information cannot be obtained by any other reasonable means; and

    (c) That a strong interest of the party seeking to subpoena the newsperson outweighs the interests under the first amendment to the United States constitution of such newsperson in not responding to a subpoena and of the general public in receiving news information.

    C.R.S. § 24-72.5-105

    The privilege of nondisclosure established in section 24-72.5-103 may be waived only by the voluntary testimony or disclosure of a newsperson that directly addresses the news information or identifies the source of such news information sought by a governmental entity. A publication or broadcast of a news report through the mass media concerning the subject area of the news information sought, but which does not directly address the news information sought by such governmental entity, shall not be deemed a waiver of the privilege of nondisclosure as to such specific news information.

    C.R.S. § 24-72.5-106

    Nothing in this article shall preclude the issuance of a search warrant pursuant to the federal "Privacy Protection Act of 1980", 42 U.S.C. sec. 2000aa.

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  • Connecticut

    There are no other Connecticut sources for the reporter's privilege.

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  • D.C. Cir.

    While not commanding a majority of the Circuit, several opinions have expressed strong support for a common law reporter’s privilege.  See In re Miller, 397 F.3d 964 (D.C. Cir. 2005) (Tatel, J., concurring in the judgment), opinion superseded by 438 F.3d 1141 (D.C. Cir. 2006); In re Miller, 405 F.3d 17 (D.C. Cir. 2005) (Tatel, J. concurring in denial of rehearing en banc); United States v. Libby, 432 F. Supp. 2d 26 (D.D.C. 2006).  But see Hatfill v. Gonzales, 505 F. Supp. 2d 33 (D.D.C. 2007) (refusing to recognize common law reporter’s privilege); In re Special Counsel Investigation, 338 F. Supp. 2d 16 (D.D.C. 2004) (same); Lee v. Dep’t of Justice, 401 F. Supp. 2d 123 (D.D.C. 2005) (same).

    The common law privilege stems from Rule 501 of the Federal Rules of Evidence, which authorizes federal courts to develop evidentiary privileges in federal question cases according to “the principles of the common law as they may be interpreted . . . in light of reason and experience.”  In re Miller, 397 F.3d at 989 (Tatel, J., concurring in the judgment).  Judge Tatel, the Circuit’s leading proponent of the common law privilege, has explained that “reason and experience” call for recognition of the privilege given that 49 states and the District of Columbia recognize at least a qualified reporter’s privilege; the federal courts have routinely limited discovery of sources in both civil and criminal contexts; and Justice Department guidelines for issuing subpoenas to reporters establish a federal policy of protecting newsgathering.  Id. at 995.

    Per Judge Tatel’s formulation, the qualified common law privilege is overcome only where (1) the requesting party demonstrates a sufficient need for the information; (2) that party has exhausted alternative sources for the information, and (3) the court determines that “the public interest in protecting a reporter’s sources” is outweighed by “the private interest in compelling disclosure.”  Id. at 997-98.

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  • Delaware

    Delaware has long recognized a common law reporters' privilege. Although a reporter may only refuse to testify by claiming a privilege expressly granted under the Reporters' Privilege Act (see D.R.E. 513 ("A reporter may not decline to testify except as provided by statute.")), those privileges both originated in and continue to be shaped by case law.

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  • Florida

    There are no other sources for the reporter's privilege in Florida.

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  • Georgia

    Even where no formal evidentiary privilege applies, Georgia courts have repeatedly recognized that trial courts must take protective measures to prevent litigants from seeking to compel sensitive information from a party or witness, particularly where there has been no showing that the evidence is necessary to prove a viable claim. See, e.g., Ledee v. Devoe, 225 Ga. App. 620, 625 (1997) ("it is the trial court's obligation to assure that the scope of the discovery is restricted to the extent necessary to prevent an unreasonable intrusion into the defendant's privacy").

    Based on such precedent, the Georgia Court of Appeals has recognized that in defamation claims against the media where the statutory privilege does not apply because the defendant reporter is a party, the trial courts must nevertheless strictly control discovery seeking disclosure of the identity of confidential sources. Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808, 813 (2001) ("there is a strong public policy in favor of allowing journalists to shield the identity of their confidential sources unless disclosure is necessary to meet other important purposes of the law"), cert. denied, 2002 Ga. Lexis 103 (2002), cert. denied, 537 U.S. 814 (2002).  See also Bryant v. Cox Enterprises, 311 Ga. App. 230 (2011) (affirming trial court’s denial of motion to compel disclosure of confidential sources and entry of summary judgment for newspaper), cert. denied, 2012 Ga. LEXIS 37 (2012).

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  • Idaho

    A concurring opinion in the In re Wright decision emphasized the common law in concluding that a limited reporter's privilege exists in Idaho. Justice Bistline concluded that the issue presented in Wright could be decided on non-constitutional grounds, by studying the justification for evidentiary privileges in the common law and recognizing that such historical justifications also supported recognition of a reporter's privilege in contemporary society because of the critical importance of the press in maintaining an informed citizenry. Wright, 108 Idaho at 424-428, 700 P.2d at 50-54.

    Additionally, although not a source of support for the privilege, special heed should be paid in Idaho to the limitations upon the scope of discovery found in the discovery rules. The Idaho decisions have given special emphasis to such limitations primarily, or so it would appear, to avoid the draconian holding in Cardoza, as a means of limiting the discovery directed at reporters, without having to invoke the reporter's privilege.

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  • Illinois

    There are no other sources of a reporter’s privilege in Illinois.  However, in addition to the Statute, Illinois recognizes the common law “special witness doctrine” and has held that it applies not only to judges and prosecutors, but to reporters.  People v. Palacio, 240 Ill.App.3d 1078, 607 N.E.2d 1375 (1993).  Under the doctrine, “the court should require either party in a criminal case to cross the following threshold before permitting that party to call a reporter to testify over the reporter’s objection. First, the party subpoenaing the reporter must specifically state the testimony the party expects to elicit from the reporter. Second, that party must specifically state why that testimony is not only relevant, but necessary to the party’s case. Finally, that party must specifically state the efforts that party has made to secure the same evidence through alternative means.”  Id. at 1102, 607 N.E.2d at 1389-90 (noting that defendant “could have asked the prosecutor whether he would stipulate to the accuracy of [reporter’s] column” which “would have eliminated any need for [reporter’s] testimony”).

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  • Indiana

    There are no other sources of the reporter's privilege in Indiana.

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  • Iowa

    Rule 1.1701(4)(d)(1)(3) of the Iowa Rules of Civil Procedure provides that a subpoena requiring disclosure of privileged information will be quashed by the court or modified to protect against disclosure of the privileged information. Rule 1.1701(4)(d)(1)(4) provides that an unduly burdensome subpoena will be modified or quashed by the court. Rule 1.1701(4)(a) provides that the attorney responsible for the issuing of a subpoena must take reasonable steps to avoid imposing undue burden or expense on the person subject to the subpoena. Rule 1.504 provides that a party of whom impermissible discovery is sought may seek and for good cause be granted a protective order stopping the burdensome discovery request.

    Rule 2.15(2) of the Iowa Rules of Criminal Procedure provides that a subpoena that is unreasonable or oppressive will be dismissed by the court upon motion. Rule 2.14(6)(a)(3) allows the court to regulate discovery and issue protective orders to prohibit compelled disclosure of privileged information.

    These court rules often allow a reporter or news organization to avoid filing a motion to quash by simply objecting to the state court subpoena, on privilege grounds, and thereby placing the burden on the person seeking enforcement of the state court subpoena to file a motion to compel.

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  • Kansas

    There are no other sources of law discussing this issue.

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  • Kentucky

    There are no other sources of reporter's privilege in Kentucky.

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  • Louisiana

    There are no other known sources of law supporting a reporter's privilege in Louisiana.

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  • Maine

    In Maine, court rules and rules of evidence do not provide a basis for a reporters’ privilege. In re Letellier, 578 A.2d 722, 17 Med.L.Rptr. 2169 (Me. 1990).

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  • Maryland

    Public Policy -- See Telnikoff v. Matusevitch, 702 A.2d 230, 25 Media L. Rep. 2473 (Md. 1997) (discussing Maryland's strong commitment to freedom of the press).

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  • Massachusetts

    The common law is the main source for a reporter's privilege in Massachusetts. Courts have recognized, through case law, that a balancing of interests is required when a journalist resists complying with a subpoena. See Petition for the Promulgation of Rules, 479 N.E.2d 154 (Mass. 1985) (asserting that a common law approach to this area of law would be better than rulemaking by the court). See also In re John Doe Grand Jury Investigation, 574 N.E.2d 373 (Mass. 1991); In re Roche, 411 N.E.2d 466 (Mass. 1980); Ayash v. Dana Farber Cancer Inst, 822 N.E.2d 667, 696 (Mass. 2005).

    Rules of the Court: In 1985, the Supreme Judicial Court dismissed a petition by the Governor's Press Shield Law Task Force for the adoption of rules establishing a qualified privilege protecting newsgatherers from compelled disclosure of confidential sources and unpublished information. See Petition for the Promulgation of Rules, 479 N.E.2d 154 (Mass. 1985). The court asserted that a common law approach to this area of law would be better than rulemaking by the court. Id. The court's decision not to adopt privilege rules was motivated in part by the fact that the various media entities petitioning for a privilege could not agree on the exact contours of such a proposed privilege. Id.

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  • Michigan

    Michigan has a Court Rule similar to the federal rule allowing objections to burdensome subpoenas. MCR 2.301.

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  • Minnesota

    1. Inherent judicial power

    Although rejecting protection for unpublished but nonconfidential information under the First Amendment and under the state statute, the Minnesota Supreme Court has directed the lower courts to review the requested information for themselves before requiring journalists to turn the information over to the parties in a case. State v. Turner, 550 N.W.2d 622, 629 (Minn. 1996). The court in Turner stated,

    We believe that concerns of overburdening the news media justify the implementation of an in camera procedure for reviewing unpublished information, including photographs, before forcing a news organization to disclose information in its possession to a litigant. If a litigant asserts that unpublished information or photographs possessed by a newspaper may be relevant to his or her case, in camera review by the district court is an appropriate means of balancing the defendant's need for evidence to support his or her claims against the public's interest in a free and independent press.

    The only information the court should release would be information relevant to the requesting party's theory of the case, as defined by that party's attorneys.

    1. Rules of procedure--avoiding undue burden

    Rule 22.02 of the Minnesota Rules of Criminal Procedure provides that the district court on motion may quash or modify a subpoena for production of documentary evidence or objects, "if compliance would be unreasonable or oppressive." Rule 26.03 of the Minnesota Rules of Civil Procedure allows the district court to issue "any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense."

    In State v. Ross, 22 Med. L. Rptr. 2509 (Ramsey Cty., Minn., Dist. Ct. 1994), the district court relied in part upon Criminal Rule 22.02 to quash a criminal defendant's subpoena to newspaper reporters in connection with a sentencing proceeding after she pleaded guilty to the death of her four-year-old son. The court stated:

    A subpoena in a criminal case must not create an "unreasonable or oppressive burden." Minn. R. Crim. Proc. 22.02. Subpoenas directed at the news media present special problems, in addition to the time and attention which is diverted from gathering and presenting news as a result of having to respond to the subpoenas. . . . [I]t is important for reporters to maintain objectivity and to be perceived by their sources and by their readers as neutral in public controversies, including criminal proceedings. If reporters are compelled to testify as witnesses on behalf of any party in a criminal trial or civil suit, they risk being perceived as advocates and their position of neutrality may be impaired. This may lead to a loss of credibility with readers and to increased difficulty in obtaining information. Compelling reporters to testify about material obtained in confidence or from entirely confidential sources also endangers their ability to obtain information from future confidential sources.

    22 Med. L. Rptr. at 2510-11. The court, further relying upon the shield statute and upon the constitutional privilege, found that the defendant had not met any of the conditions for compelling disclosure of information from the reporters relating to stories they had written about her son's death.

    The argument of undue or improper burden can succeed even if the information sought has been published. In an unpublished order in United States v. Ford, Crim. No. 4-92-112 (D. Minn. 1992), the court quashed a criminal defendant's subpoena against two newspapers that sought copies of "all articles" that had appeared in the newspapers over a three-week period relating to the shooting of a police officer and "relating to racial tensions stemming from the shooting." The court held that the defendant's attorney could find the articles through her own research, and that it was improper to shift that burden to the newspapers. It stated,

    Appearances by the newspapers are not necessary to authenticate the articles, to the extent they have evidentiary value. Fed. R. Ev. 902(6). Insofar as defense counsel seeks to have the newspapers make the search and selection concerning the articles, the subpoenas shift the burden of trial preparation from defense counsel onto the newspapers; no matter what the extent of the newspapers' resources may be relative to the criminal defendant, this sort of burden-shifting is an unfair imposition upon innocent third-parties.

    See J. Borger, Resisting Subpoenas for Published or Broadcast Information, 12 Commc'ns Lawyer, Spring 1994, at 10 (ABA). With the ready availability to the public of media databases, this reason for quashing subpoenas for published information has become even more compelling.

    Parties to a lawsuit or criminal proceeding might seek a reporter’s testimony to authenticate quotations or information attributed to a named source in a published report. Published information is not protected by the statutory privilege, but compelling a reporter to testify against a named source (who denies making the published statement) nevertheless could be unduly burdensome, both in terms of time, in terms of creating an impression that the reporter is taking sides in the litigation, and in creating a risk of cross-examination questions that would impinge on privileged material. This burden can be minimized if the parties agree (with or without encouragement from the court) to stipulate that “if called to testify, the reporter who wrote this story would say that X said as follows.” See United States v. Carlson, 41 Med. L. Rptr. 2767 (D. Minn. Sept. 16, 2013); Stipulation and Order Limiting Testimony of Reporter Paul McEnroe, State v. Buie, No. XX-94-335, Ramsey Cty., Minn., Dist. Ct., dated June 6, 1994.

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  • Mississippi

    Currently, Mississippi does not provide further privileges for reporters via court rules, state bar guidelines, or administrative procedures. One should note that Miss R. Evid. 501 provides:

    Except as otherwise provided by the United States Constitution, the State Constitution, by these rules, or by other rules applicable in the courts of this state to which these rules apply, no person has a privilege to:

    (1) Refuse to be a witness;

    (2) Refuse to disclose any matter;

    (3) Refuse to produce any object or writing; or

    (4) Prevent another from being a witness or disclosing any matter or producing any object or writing.

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  • Missouri

    There are no court rules, state bar guidelines or administrative procedures addressing this issue.

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  • Montana

    There are no other sources of a reporter's privilege in Montana other than the statutes and constitutional provisions described above.

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  • Nebraska

    No reported Nebraska court decision has recognized a reporter's privilege from any source other than the statute.

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  • Nevada

    Other than NRS 49.275, there appear to be no other sources of a reporter’s privilege within the State of Nevada.

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  • New Hampshire

    No other sources of authority exist in New Hampshire.

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  • New Jersey

    There are no other sources for a newsperson's privilege in New Jersey.

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  • New Mexico

    Having declined to find a First Amendment basis for a reporter’s privilege and having rejected the legislature’s attempt to mandate the recognition of such a privilege in judicial proceedings, the New Mexico Supreme Court promulgated Rule 11-514 of the Rules of Evidence in 1982. The rule – which remains in place today, essentially in its original form – affords journalists “a privilege to refuse to disclose . . . confidential source[s] . . . and . . . confidential information,” unless the proponent of disclosure shows by a preponderance of the evidence that the information or the identity of the source “is crucial to [her] case,” that her need for the information “clearly outweighs the public interest in protecting the news media's confidential information and sources,” and that she “has reasonably exhausted alternative means of discovering” the information. Rule 11-514(B) to (C) NMRA.

    Another supreme court rule – this one authorizing “[t]he broadcasting, televising, photographing, and recording of court proceedings” under specified circumstances, Rule 23-107 NMRA – appears to create an absolute, rather than a qualified, privilege with respect to the fruits of such activities. It provides that “[n]one of the film, videotape, still photographs, or audio reproductions developed during or by virtue of coverage of a judicial proceeding shall be admissible as evidence in the proceeding out of which it arose, any proceeding subsequent or collateral thereto, or upon any retrial or appeal of such proceeding.” Rule 23-107(H) NMRA.

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  • New York

    In Gonzales, the Second Circuit indicated that the source of the journalists' privilege may be federal common law, instead of the First Amendment--a prospect that, should Congress choose to act, would affect the federal privilege:

    Previous decisions of our court have expressed differing views on whether the journalists' privilege is constitutionally required, or rooted in federal common law. Compare Baker, 470 F.2d at 781 (reasoning that "[a]bsent a federal statute to provide specific instructions, courts which must attempt to divine the contours of non-statutory federal law governing the compelled disclosure of confidential journalistic sources must rely on both judicial precedent and well-informed judgment as to the proper federal public policy to be followed in each case") with von Bulow, 811 F.2d at 142 (reasoning that "the process of newsgathering is a protected right under the First Amendment, albeit a qualified one," and that "[t]his qualified right … results in the journalist's privilege"). Until Congress legislates to modify the privilege or do away with it, however, we need not decide whether the privilege is founded in the Constitution.

    Id. at n.6.

    In New York Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006), the Second Circuit declined to offer further guidance on the source of the journalists’ privilege, stating "we see no need to add a detailed analysis of our precedents." Id. at 173.

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  • North Carolina

    Prior to the shield law, the journalist's testimonial privilege in North Carolina had been based on the federal and state constitutions. The privilege has not been based on other sources such as court rules, state bar guidelines, or administrative procedures.

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  • North Dakota

    There are no additional sources of a reporter's privilege, such as court rules, state bar guidelines, or administrative procedures. The only source for a reporter's privilege is the applicable North Dakota statute.

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  • Ohio

    At this time, there are no other recognized sources for the reporter's privilege in Ohio.

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  • Oklahoma

    There are no other state–law sources of a reporter’s privilege, such as court rules, state bar guidelines, or administrative procedures.

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  • Rhode Island

    There are no other sources for the privilege.

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  • South Carolina

    The only evidentiary privileges recognized under the South Carolina rules of evidence are those required by the constitution, statutes or common law. Rule 501, SCRE. The South Carolina Rules of Civil Procedure provide the basis for an order for a journalist or any other person who is not a party to the litigation to protect against burdensome, expensive or harassing subpoenas for production of documents. Rules 26(c) and 45 (c), SCRCP.

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  • South Dakota

    In Hopewell v. Midcontinent Broadcasting Corp., the South Dakota Supreme Court relied on Mitchell v. Superior Court, 690 P.2d 625 (Cal. 1984).

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  • Tennessee

    Tennessee courts have not recognized any other sources of law for a reporter's privilege.

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  • Texas

    The Texas Rules of Evidence, which do not recognize a privilege unless they are based on a constitution, state, or rule of evidence, see Tex. R. Evid. 501, do not recognize a testimonial privilege for reporters. Thus, Texas does not recognize a common law basis for a reporter’s privilege.

    Nevertheless, attorneys have been searching for other legal avenues to bolster protection of such materials and, in fact, there is some protection granted to news organizations in the criminal context. Article 18.01(e) of the Texas Code of Criminal Procedure grants special protection to news organizations for evidentiary searches, which has been relied upon as an argument for providing protection from subpoenas, as well. Advocates have argued that a prosecutor or private litigant should not be able to obtain by subpoena material that police are not able to obtain by court order. In State ex rel. Healey v. McMeans, 884 S.W.2d 772 (Tex. Crim. App. 1994) (en banc), this question was posed in a concurrence by one Justice, inquiring in regard to Article 18.01(e): “We might ask if you can’t seize it by a court order (search warrant), how can you subpoena it by a clerk order?” Additionally, media attorneys have also argued that unpublished and confidential information should be protected as proprietary information or trade secrets, although no Texas court has ruled directly on that issue.

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  • Utah

    The reporter’s privilege in Utah was created through the adoption of Utah Rule of Evidence 509 by the Utah Supreme Court.

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  • Vermont

    Prior to the enactment of the Vermont Shield Law, two cases illustrated an apparent movement by the Vermont Supreme Court to limit journalists’ ability to exercise the privilege.  First, in a criminal case, the Vermont Supreme Court held that no privilege exists under the First Amendment that would protect a journalist from “disclos[ing] evidence of a crime, or evidence that is relevant and material to a criminal investigation, when properly subpoenaed.” In re Inquest Subpoena (WCAX), 179 Vt. 12, 21, 2005 VT 103, ¶¶ 20–21, 890 A.2d 1240, 1247 (Vt. 2005). In the WCAX case, the Supreme Court reversed the decision of the lower court to quash a subpoena issued to a television station for video footage of UVM students celebrating the 2004 American League Championship Series win by the Boston Red Sox over the New York Yankees; the celebration “turned into a riot” on the UVM campus, and the footage captured persons committing crimes and vandalism. Id. ¶ 1, 179 Vt. at 13, 890 A.2d at 1241. The court noted that “a reporter’s investigation of criminal activity is exactly the kind of information Branzburg [v. Hayes, 408 U.S. 665, 708 (1972)] does not allow reporters to shield, absent proof that the investigation is motivated by an illegitimate purpose”). Id. ¶ 20, 179 Vt. at 21, 890 A.2d at 1247.

    Second, in a civil case, the Vermont Supreme Court held that a journalist does not have a qualified First Amendment privilege to refuse to testify about events witnessed or statements heard at a public meeting. See Spooner v. Town of Topsham, 182 Vt. 328, 329, 2007 VT 98, ¶ 1, 937 A.2d 641, 642 (Vt. 2007). In Spooner, the Vermont Supreme Court reversed the decision of the lower court to quash a subpoena calling for the deposition of a local newspaper reporter regarding statements made at a town selectboard meeting. The plaintiff, an unsuccessful candidate for the position of road foreman, had sued the town for employment discrimination. The reporter attended the meeting in his capacity as a member of the news media, and wrote an article reporting on the comments of several town selectmen which supported plaintiff’s claim. See id. ¶¶ 2–3, 182 Vt. at 329, 937 A.2d at 642. The Spooner Court found that, on the facts presented, the reporter did not have a qualified First Amendment privilege to “refuse to testify about the events he witnessed at a public selectboard hearing.” Id. ¶¶ 1, 14–16, 182 Vt. at 329, 335–37, 937 A.2d at 642, 646–47 (noting that “we are not persuaded that compelling the reporter’s testimony in this case will unduly burden the newsgathering function of the press”). Thus, arguably, the decision in Spooner can be limited to its facts: the witnessing of events by a reporter at a public meeting.

    It is worth noting that in both Spooner and WCAX, the Court acknowledged its decision in State v. St. Peter, 132 Vt. 266, 315 A.2d 254 (1974), indicating that, in appropriate cases, the Court would apply the well-known and long-standing balancing test adopted in that case. Therefore, under Vermont law, in situations where the qualified journalist’s privilege is found to attach, a litigant can overcome the privilege and obtain discovery only upon a showing that (1) “there is no other adequately available source for the information,” and (2) the information “is relevant and material to a significant issue in the case.” Spooner, ¶ 17, 182 Vt. at 337, 937 A.2d at 647–48; see also WCAX, ¶¶ 12–14, 179 Vt. at 17–18, 890 A.2d at 1243–44 (confirming that a qualified reporter’s privilege exists in all “cases in which a news reporter is ‘legitimately entitled to First Amendment protection’”). In the Spooner case, however, the Court found that, even if it applied the appropriate balancing test, the plaintiff could compel the reporter’s testimony because the record failed to show “that the other witnesses [to the meeting] offered an adequate alternative source of the information sought.” Id. ¶ 19, 182 Vt. at 339, 937 A.2d at 648.

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  • Virginia

    There are no other sources of a reporter's privilege in Virginia.

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  • Washington

    The Washington Supreme Court has recognized a qualified common law privilege against compelled disclosure of confidential source information in civil and criminal cases. See Senear, 97 Wn.2d at 152-57 (civil); Rinaldo, 102 Wn.2d at 754-55 (criminal).

    Also, please see the discussion of Washington’s shield statute, RCW 5.68.010. See Section II.A (Shield law statute) above.

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  • West Virginia

    This section is blank.

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  • Wisconsin

    There are no other sources of a reporter's privilege in Wisconsin.

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  • Wyoming

    There are no other sources of a reporter’s privilege in Wyoming, such as court rules, state bar guidelines or administrative procedures.

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