D. The source's rights and interests

There is no case law addressing this issue.

Under Florida’s Reporter’s Privilege, § 90.5015, Fla. Stat., Florida’s Fourth District Court of Appeal held that a source, who was also a co-defendant to a defamation suit, would not be protected by the journalist privilege.  Cable News Network, Inc. v. Black, 308 So. 3d 997 (Fla. 4th DCA 2020).

There is no reported First Circuit decision specifically addressing this issue.

The reporter's privilege is held by the reporter, not the source. Thus, the source cannot prevent disclosure of information relayed to the reporter if the reporter chooses not to invoke the reporter's privilege. Small v. UPI, 1989 U.S. Dist. Lexis 12459 (S.D.N.Y. Oct. 20, 1989) (Roberts, Mag.).

No cases in the Third Circuit appear to address directly the question of what rights, if any, the source has as against disclosure of his or her identity or to intervene for purposes of attempting to quash a subpoena addressed to a news organization, nor do the courts appear to have addressed directly the question of whether a source may maintain a breach of contact action against a journalist who, in response to a court order, discloses the identity of a source to whom the journalist had promised confidentiality.

There is no statutory or case law in the Fourth Circuit discussing whether sources may intervene anonymously to halt disclosure of their identities, or whether they may sue over disclosure after the fact.

No reported decision of the Fifth Circuit has addressed efforts of sources to intervene anonymously to halt disclosure of their identities. In a case involving the attorney-client analog to the qualified reporter's privilege, however, the Fifth Circuit permitted the client of an attorney to intervene anonymously to protect his identity when the client's identity was inextricably intertwined with the subject of the allegedly privileged communication. In re Grand Jury Subpoena for Attorney Representing Criminal Defendant Reyes-Requena, 926 F.2d 1423 (5th Cir. 1991).

There is no statutory or case law addressing a situation where the courts allowed sources to intervene anonymously to halt disclosure of their identities. Similarly, there is no reported federal case in the Sixth Circuit where a reporter's source sued the reporter for disclosing the source's identity.

No reported federal cases in the Seventh Circuit have discussed a source's right to intervene anonymously. But see Warnell v. Ford Motor Co., 183 F.R.D. 624, 626 (N.D. Ill 1998) (considering interests of source to remain confidential).

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

There is no statutory or case law addressing this issue.

There is no Alabama statutory or reported case law addressing the rights and interests of a source to intervene anonymously and halt the disclosure of his or her identity.

The issue of sources seeking to intervene anonymously to halt disclosure of their identities, or suing over disclosure after the fact, has not arisen to date and has not been addressed by the courts or legislature in Alaska. AS 09.25.340 provides that when a reporter claims the privilege conferred by AS 09.25.300 - 09.25.390 and has not been divested of the privilege by order of the supreme or superior court, neither the reporter nor the news organization with which the reporter was associated may thereafter be permitted to plead or prove the sources of information withheld, unless the informant consents in writing or in open court.

There is no statutory or case law addressing this issue.

There are no reported cases in Arkansas in which a source has attempted to intervene anonymously to prevent disclosure of his identity. Nor are there any reported cases in which a source has sued a media defendant once the source's identity has been revealed.

In CBS, Inc. v. Superior Court, 85 Cal. App. 3d 241, 250, 149 Cal. Rptr. 421 (1978), disapproved on other grounds, Delaney v. Superior Court, 50 Cal. 3d 785, 797 n. 6, 789 P.2d 934, 268 Cal. Rptr. 753 (1990), the court held that the privilege was waived when the reporter’s previously confidential sources testified in open court. The court reasoned that “[s]ince this information is now a matter of public record, it is difficult to see how the production of tapes which will merely confirm – or at worst very slightly amplify – what has already been revealed, will materially erode the vicarious interest in confidentiality asserted by CBS.” Id. More recently, a court questioned whether the privilege applies where the defendant is both the source of the information and the person seeking its disclosure. People v. Vasco, 131 Cal. App. 4th 137, 152 n.3, 31 Cal. Rptr. 3d 643 (2005). The court considered the issue “troublesome,” opining that in this circumstance:

[T]here is no risk the reporter’s source (the defendant) will complain her confidence has been breached . . . . Nor is the separate policy of safeguarding press autonomy in any way compromised . . . . And, where the defendant is the reporter’s source of information, there appears no reason to assume disclosure would hinder the reporter’s ability to gather news in the future.

Id. (citations omitted). It held, however, that under Delaney “we may only consider this factor in the balancing stage.” Id. Because defendant did not meet Delaney’s threshold test, the court concluded that “this factor plays no part in the equation.” Id.

No reported cases in Colorado.

There is no Connecticut law addressing this issue.

No statutory or case law addressing this issue exists.

There is no statutory or case law addressing sources intervening anonymously to halt disclosure of their identities or suing over disclosure after the fact. It is unclear whether journalists have a First Amendment or other defense to such suits.

No statutory or case law addressing this issue exists.

Recently, a U.S. District Court in Florida, citing decisions from other states, held that a source did not have standing to invoke the reporter’s privilege, limiting the privilege to journalists. Carroll v. TheStreet.com, Inc., No. 11-CV-81173, 2014 WL 5474048, at *9, *9 n. 6 (S.D. Fla. Apr. 10, 2014).

Georgia law does not recognize a cause of action for a reporter's breach of an agreement with a source in the absence of evidence that the resulting publication was false. See generally Raskin v. Swann, 216 Ga. App. 478, 454 S.E. 2d 809 (1995).

There is no authority in Hawai'i regarding whether sources may intervene anonymously to halt disclosure of their identities, or whether sources may sue a reporter for disclosure of their identities.

There are no known Idaho cases in which a confidential source has attempted to intervene in a proceeding involving attempts to compel testimony concerning the confidential source. Depending upon the nature of the promise made to the source (e.g., was the promise of confidentiality an unconditional promise, or one in which the promisor is released from the promise if ordered to testify), the source may have a claim for a breach of contract. There has been no reported breach of contract/confidential source cases in Idaho.

In Illinois, no source has asserted the statutory privilege provided by the Illinois statute, resulting in no Illinois statutory or case law addressing this issue.

There is no statutory or case law on this issue.

No cases or statutory authority address this issue.

There is no statutory or case law addressing this issue.

There have been no reported instances in Kentucky of sources being allowed to intervene anonymously to halt disclosure of their identities pursuant to the reporter’s shield law, KRS 421.100.  However, in Doe v. Coleman, 497 S.W.3d 740 (Ky. 2016), the Kentucky Supreme Court recognized the right of anonymous internet posters to oppose a subpoena to an internet provider seeking to disclosure their identities. The First Amendment analysis in Doe would seem to apply equally or more forcefully in the context of the reporter’s shield law.

There is no statutory language or Louisiana case law addressing this issue.

There is no reported instance in Maine where a source has sought to intervene anonymously to halt disclosure of their identity or where they have been allowed to sue over disclosure after the fact. However, in Fitch v. Doe, 2005 ME 39, 869 A.2d 722, the trial court allowed counsel for an anonymous defendant to enter an appearance for his anonymous client (although he did so without objection) and to argue against disclosure of his client's identity. That said, a footnote in In re Letellier, 578 A.2d 722, 724 n.2, 17 Media L. Rep. 2169 (Me. 1990) notes that the trial court had determined that the source was without standing to oppose the subpoena on the reporter.

The Supreme Court has held that newspaper publishers have no special immunity from the application of general laws. Cohen v. Cowles Media Co., 501 U.S. 663 (1991). In this case, not only was the source able to sue the defendant newspaper publisher for disclosure, but the newspaper publisher was held liable for breach of contract based on promissory estoppel. Id.

There appears to be no Massachusetts law on this issue.

There have been no appellate cases discussing this precise issue. However, Michigan statutes protect the identity of the informant and any unpublished information obtained from the source. MCL 767.5a; MCL 767A.6(6).

Journalists who voluntarily break promises of confidentiality may be answerable in damages to their sources. Cohen v. Cowles Media Co., 479 N.W.2d 387 (Minn. 1992). Disclosure of a confidential source pursuant to court order should not trigger damages liability to the source. See United Techs. Commc'ns. Co. v. Washington County Bd., 624 F. Supp. 185, 190 (D. Minn. 1985) (applying Minnesota law and stating, "[i]t is a general principle of the law of contracts that one is not liable in an action for breach where that breach was the result of a court order"); Automatic Alarm Corp. v. Ellis, 99 N.W.2d 54 (Minn. 1959) (holding that unforeseen exercise of governmental authority rendering performance of contractual obligation impossible will excuse promissor's obligation in connection therewith); Village of Minneota v. Fairbanks, Morse & Co., 31 N.W.2d 920, 925 (Minn. 1948) (holding that judicial order or other act of government making performance impossible discharges contractual duty); National Farmers Union Prop. & Cas. Co. v. Fuel Recovery Co., 432 N.W.2d 788, 791 (Minn. App. 1988) (same).

There is no statutory or case law addressing this issue.

There is no statutory or case law addressing this issue, and no known instances on the state level.

The author is unaware of any interventions or lawsuits by sources.

The courts have not addressed whether sources can intervene to halt disclosure of their identities. Since the statutory privilege belongs to the media, not the source, it seems unlikely that they would allow such intervention. The courts have also not addressed the viability of a source's cause of action against a reporter who has disclosed the source notwithstanding a promise of confidentiality.

It does not appear that the Nevada Supreme Court has addressed the issue of whether sources may intervene anonymously to halt disclosure of their identities. There do not appear to be any Nevada cases addressing suits by sources concerning disclosure of their identities.

New Hampshire articulated the standard for balancing a source’s right to anonymous free speech against a plaintiff’s right to protect its reputation in Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., 160 N.H. 227 (2010):

[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 present 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 237-238. The Court reiterated that the process must be undertaken on a case-by-case basis. Id.

The source has no rights relevant to the privilege. The privilege belongs to the newsperson; the purpose of the privilege is to protect news-gathering activities "to the greatest extent permitted by the constitutions of the United States and New Jersey." In re Schuman, 114 N.J. 14, 20 (1989).

No New Mexico law specifically addresses this issue.

One New York case, decided after the U.S. Supreme Court's ruling in Cohen v. Cowles Media Co., 501 U.S. 663 (1991), that the First Amendment does not prohibit a source from recovering damages for a journalist's breach of a promise of confidentiality, has held that a claim for breach of a promise not to identify an individual is not barred by either the federal or New York constitutions. See Anderson v. Strong Memorial Hosp., 151 Misc.2d 353, 573 N.Y.S.2d 828 (N.Y. Sup. Ct. Monroe Cty. 1991) (denying newspaper's motion to dismiss action for indemnification and contribution brought by hospital which had been found liable for breach of confidential patient-physician relationship, after publication of photo identifying hospital patient as HIV positive in breach of newspaper's promise to hospital not to make patient recognizable in photo). Although Anderson did not involve an action by a source given a promise of confidentiality, journalists and newspapers should be aware of potential exposure to liability in New York for breach of promises of confidentiality if a source is promised anonymity and that promise is subsequently broken.

In Cohen v. Cowles Media Co., 501 U.S. 663 (1991), the United States Supreme Court held that the First Amendment did not prohibit confidential sources from recovering damages for a newspaper publisher's breach of the promise of confidentiality in exchange for information. The underlying claim in Cohen, however, was based on a theory of promissory estoppel under Minnesota law.

There are no reported North Carolina decisions involving claims against the media for breach of contract or promissory estoppel for the disclosure of the identity of a confidential source. In general, North Carolina law regarding breach of contract is consistent with standard "hornbook" principles. In order for a valid contract to exist, there must be an agreement of the parties upon the essential terms of the contract, definite within themselves or capable of being made definite. See, e.g., Horton v. Humble Oil & Refining Co., 255 N.C. 675, 122 S.E.2d 716 (N.C. 1961). In addition, there must be an offer, acceptance, and consideration. See, e.g., Investment Properties of Asheville, Inc. v. Norburn, 281 N.C. 191, 188 S.E.2d 342 (N.C. 1972). North Carolina law also recognizes promissory estoppel as a valid defense in cases where there has been an intended abandonment of an existing right by the promisee. See, e.g., Clement v. Clement, 230 N.C. 636, 55 S.E.2d 459 (N.C. 1949) (applying promissory estoppel where plaintiff had previously agreed not to charge interest); Brooks v. Hackney, 329 N.C. 166, 404 S.E.2d 854 (N.C. 1991) (applying estoppel where seller sought to void a real estate contract). The elements of promissory estoppel are (1) proof of express or implied promise and (2) detrimental reliance on that promise. See Wachovia Bank & Trust Co. v. Rubish, 306 N.C. 417, 293 S.E.2d 749 (N.C. 1982). However, the North Carolina Supreme Court has yet to approve the use of the doctrine of promissory estoppel as a cause of action for affirmative relief. See Home Elec. Co. v. Hall & Underdown Heating & Air Conditioning Co., 86 N.C. App. 540, 358 S.E.2d 539 (N.C. App. 1987), aff'd, 322 N.C. 107, 366 S.E.2d 441 (N.C. 1988) (per curiam). In addition, North Carolina law has not recognized the doctrine as a substitute for consideration. See id.

There are no reported cases involving a source's right to intervene anonymously in a proceeding to prevent disclosure of his or her identity.

The issue of whether sources have the right to intervene anonymously in order to halt the disclosure of their identities has not been litigated in North Dakota. Additionally, the issue of whether sources would be able to sue over disclosure after the fact has not been litigated.

The privilege has been held to belong to the reporter. State v. Ventura, 101 Ohio Misc. 2d 15, 720 N.E.2d 1024 (Hamilton C.P. 1999). The privilege belongs to the reporter even if the source seeks the reporter's testimony only to learn information about himself. Ventura v. Cincinnati Enquirer, 396 F.3d 784 (6th Cir. 2005).

The subject of a reporter's news story does not have standing to assert the privilege. City of Akron v. Cripple, 9th Dist. Summit No. 21385, 2003-Ohio-3920, 2003 WL 21697751 (July 23, 2003).

We are not aware of any instances in which sources have intervened anonymously to halt disclosure of their identities or have sued after disclosure.

No statutory or case law addressing this issue.

There is no statutory or case law in Pennsylvania addressing this issue.

There is no statutory or case law addressing this issue.

There are no cases in South Carolina addressing intervention by a source to halt disclosure of source identifications.

These issues have not been addressed.

There is no statutory or case law on the topic of the source's rights and interests.

Anyone affected by a subpoena may file a motion to quash or for a protective order seeking to have the subpoena quashed in whole or in part. Tex. R. Civ. Proc. 192.6(a). Thus, while there has not yet been any reported case in Texas where one has tried to subpoena a confidential source since the shield law was passed, the source could file a motion to prevent disclosure.  Notably, however, the protection of the criminal shield law related to confidential sources only applies to the journalist.  See Tex. Code Crim. Proc. art. 38.11 §4.  In Cohen v. Cowles Media, 501 U.S. 663 (1991), the United States Supreme Court protected the confidential source relationship by holding that, under a theory of promissory estoppel, a reporter could be held liable for monetary damages for breaking a promise of confidentiality to a source.

There is no statutory or case law addressing this issue.

There are no reported Vermont cases discussing the source’s rights and interests.

There is no case law addressing the rights and interests of the source of the information.

The shield statute protects from disclosure not only the identity of sources, but also information “that would tend to identify the source where such source has a reasonable expectation of confidentiality.”  RCW 5.68.010(1)(a), (3). In Republic of Kazakhstan, the Court of Appeals recognized the interest in protecting news sources from disclosure, even when the subpoena was not directed to the news media, and even where the sources were not present in the litigation. 192 Wash. App. at 786 (quashing subpoena to internet domain registration company intended to identify alleged hackers who provided information to newspaper).

West Virginia courts have not had occasion to address the circumstance where a source seeks to intervene anonymously to halt disclosure of their identity.

There is no authority in Wisconsin that addresses the issue.

There are no reported cases in Wyoming of sources being allowed to intervene anonymously to halt disclosure of their identities. The use of anonymous sources by the media is rare in Wyoming.