I. Introduction: History & Background
The Tenth Circuit, and the federal district courts within the circuit, has recognized a qualified reporter's privilege under the First Amendment that extends even to published information. Although the Tenth Circuit has twice articulated a four-part test to define the contours of the reporter's privilege, it has yet to apply those factors itself to a particular set of facts.
The First Circuit, which is comprised of Massachusetts, Maine, New Hampshire, Puerto Rico, and Rhode Island, recognizes a qualified privilege for reporters. Application of the privilege is determined on a case-by-case basis, with the courts balancing the potential harm to the free flow of information and First Amendment interests against the requesting party’s asserted need for the requested information.
Within the First Circuit, Rhode Island and Maine have statutes protecting reporters from being compelled to disclose confidential sources. The Rhode Island shield law, the “Newsman’s Privilege Act,” provides a qualified privilege for reporters that applies only to confidential sources and information. R.I. Gen. Laws § 9-19.1-1, et seq. The Maine statute, “shielding journalist’s confidential sources,” similarly provides a qualified privilege for journalists to protect against compelled disclosure of confidential sources or information. Me. Rev. Stat. Ann. tit. 16, § 61.
The reporter's privilege in the Second Circuit is relatively broad. A litigant may assert the privilege in both civil and criminal cases, and when the information sought is from non-confidential or confidential sources. The tests to overcome the privilege are somewhat more press-protective than elsewhere. The following cases define the most significant aspects of the privilege in the Second Circuit:
- Gonzales v. National Broadcasting Co., 194 F.3d 29 (2d Cir. 1999)
When the information sought is non-confidential, the litigant seeking the information from one who asserts the reporter's privilege under the First Amendment must demonstrate that the information: "(1) is of likely relevance; (2) to a significant issue in the case; and (3) is not reasonably obtainable from other available sources."
- United States v. Cutler, 6 F.3d 67 (2d Cir. 1993)
When a litigant in a criminal case seeks information from a reporter who asserts the reporter's privilege under the First Amendment, the privilege will be defeated if the reporter witnessed the crime and is asked to answer questions that directly relate to that crime. Cutler followed the Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), which held that a reporter who witnesses criminal conduct may not decline to answer questions that directly relate to the conduct the reporter observed.
- United States v. Burke, 700 F.2d 70 (2d Cir.), denied, 464 U.S. 816 (1983)
When the reporter's privilege is asserted under the First Amendment to protect confidential information sought in civil or criminal cases (excluding criminal cases with facts that resemble Branzburg), the subpoenaing party must make "a clear and specific showing that the information is: (1) highly material and relevant, (2) necessary or critical to the maintenance of the claim, and (3) not obtainable from other available sources."
In general, the Third Circuit historically has afforded broad protection to journalists against compelled disclosure of their sources or the fruits of their newsgathering. Indeed, at least so far as reported opinions reveal, in civil actions involving subpoenas to non-party reporters, invocation of the First Amendment-based qualified reporter's privilege is almost always upheld. Although courts within the Third Circuit are more likely to find that other constitutional interests outweigh the reporter's privilege when invoked by journalists in criminal cases or grand jury proceedings (especially where the identity of a source has already been made known through other means), even in these areas, the Third Circuit is relatively hospitable to the privilege.
As set forth in more detail below, the Third Circuit employs a three-part test to determine whether a person seeking disclosure from a journalist has overcome the privilege: Such a person must make specific showings that the information sought is material, relevant and necessary to the party's claims or defenses. See, e.g., Riley v. City of Chester, 612 F.2d 708, 716 (3d Cir. 1979). Specifically, the party seeking disclosure must show there is no other practical way of accessing the information, all other potential sources have been exhausted, and the information is crucial to the party’s claims or defenses. See, e.g., id. at 716-17. Ultimately, whether these elements have been sufficiently established will depend upon a balancing test in which the courts weigh the relative interests of the reporter with the interests of the party seeking disclosure. See, e.g., id. Thus, for example, a criminal defendant whose constitutional right to a fair trial is implicated by a request for disclosure will likely not need to make as great a showing to overcome the privilege as would a civil litigant whose constitutional rights were not implicated.
The Fourth Circuit has been less aggressive than many of its counterparts in enunciating a reporter’s privilege. The Court first explored a testimonial privilege in 1976 but indicated that to invoke the privilege, a journalist must claim confidentiality of the information sought or vindictiveness on the part of the questioning party. United States v. Steelhammer, 539 F.2d 273 (4th Cir. 1976), rev’d en banc, 561 F.2d 539 (4th Cir. 1977). In LaRouche v. Nat’l Broadcasting Co., Inc., 780 F.2d 1134, 12 Media L. Rep. 1585 (4th Cir. 1986), cert. denied, 479 U.S. 818 (1986), the Fourth Circuit followed several Circuits in adopting a balancing test for determining whether a reporter’s privilege will protect a confidential source-reporter relationship. The applicability of the privilege and the balancing test to nonconfidential information remained unclear, however. See In re Shain, 978 F.2d 850, 20 Media L. Rep. 1930 (4th Cir. 1992) (relying upon Steelhammer to hold that the absence of confidentiality or vindictiveness fatally undermined the reporter’s claim to a First Amendment privilege for nonconfidential information obtained from a nonconfidential source). Most recently, the Fourth Circuit held that no reporter’s privilege may be asserted in a criminal proceeding for a confidential source where the government seeks, in good faith, evidence central to the prosecution that the reporter alone possesses. United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) (finding LaRouche offers no authority to recognize a First Amendment reporter’s privilege in a criminal proceeding). Nevertheless, the Fourth Circuit’s recent decisions indicate the vitality of a qualified First Amendment privilege in the civil context for both confidential and nonconfidential sources and information.
In Church of Scientology Int’l v. Daniels, 992 F.2d 1329, 21 Media L. Rep. 1426 (4th Cir. 1993), cert. denied 510 U.S. 869 (1993), the Church sued a drug company executive for libel based on a statement made by the executive in a USA Today editorial board meeting and published by the newspaper. The Church moved to compel production by USA Today of materials relating to the board meeting, even though the executive offered to stipulate to the quotation’s accuracy. The Fourth Circuit, in affirming the district court’s denial of the Church’s motion, applied the LaRouche balancing test despite the nonconfidential nature of the information sought and the absence of vindictiveness. Id. at 1335. Lower courts have followed, expanding the qualified privilege to encompass nonconfidential information. See Food Lion Inc. v. Capital Cities/ABC Inc., 951 F. Supp. 1211, 25 Media L. Rep. 1182 (M.D.N.C. 1996) (applying a modified balancing test in permitting limited discovery of nonconfidential hidden camera investigations); Penland v. Long, 922 F. Supp. 1080, 24 Media L. Rep. 1410 (W.D.N.C. 1995) (applying LaRouche test in granting motion to quash plaintiffs’ subpoena for nonconfidential information on interviews with defendant).
The Fourth Circuit in Ashcraft v. Conoco, Inc. reinforced the application of a reporter’s privilege and balancing test where the protection of confidential news sources or information is threatened in civil matters. 218 F.3d 282, 28 Media L. Rep. 2103 (4th Cir. 2000). Cory Reiss, a reporter for the Wilmington, N.C., Morning Star, was found in civil contempt and ordered to an indefinite term of imprisonment for refusing to disclose his sources of information about an allegedly confidential, $36 million court settlement. Id. at 286. Before Mr. Reiss was required to report to jail, the Fourth Circuit stayed the order pending appeal, and on appeal the Court found that under its LaRouche test, the state had not asserted a compelling interest sufficient to overcome Reiss’ privilege to withhold the names of his confidential sources. Id. at 288.
The Fifth Circuit has recognized a First Amendment qualified privilege for journalists in certain classes of cases. Where a subpoena seeks the identity of a journalist's confidential source in a civil case, including a defamation case in which the reporter or media organization is a party, the reporter enjoys the privilege, and the party seeking the information must demonstrate with substantial evidence that the information is relevant and not available elsewhere, and that its need for the information is compelling. Miller v. Transamerican Press, Inc., 621 F.2d 721, 726, as modified, 628 F.2d 932 (5th Cir. 1980); In re Selcraig, 705 F.2d 789, 792, 799 (5th Cir. 1983). However, where a grand jury or a party in a criminal case seeks the non-confidential work product or testimony of a journalist, the Fifth Circuit recognizes no privilege. United States v. Smith, 135 F.3d 963, 968, 971-72 (5th Cir. 1998). Rather, the Fifth Circuit has held that the First Amendment protects journalists' non-confidential materials and sources only from criminal process issued with intent to harass. Id. at 969, 971.
The law in the Fifth Circuit remains unsettled regarding whether a qualified privilege is available against a subpoena in a civil case that seeks the identity of a journalist's non-confidential sources or work product, though various dicta suggest the Fifth Circuit may not afford the journalist a privilege in those instances. Pressey v. Patterson, 898 F.2d 1018, 1022 n.4 (5th Cir. 1990); Smith, 135 F.3d at 972. Finally, it remains an open question whether a reporter's confidential sources or work product sought in a grand jury proceeding or criminal case are entitled to qualified protection. Certain language in Smith, however, including its construction of Branzburg, may cloud the availability of those rights. Smith, 135 F.3d at 968, 971-72.
In 2002, the Fifth Circuit reaffirmed in an unpublished decision its position that qualified First Amendment protection of journalists from subpoenas is at its nadir when brought to bear against grand jury subpoenas. In re Grand Jury Subpoenas, 29 Media L. Rep. 2301, 2303-04 (5th Cir. Aug. 17, 2002) (per curiam). Without deciding whether the information sought by the grand jury was confidential or not, the court declined to reverse the district court's contempt order, which had remanded freelance writer Vanessa Leggett to custody following her refusal to produce all originals and copies of her notes and tapes of interviews regarding a celebrated Houston murder. Id. at 2303. Thus, Leggett remained incarcerated until January 4, 2002, when the term of the grand jury expired, or 168 days all told -- the longest period of incarceration of a contemnor-journalist in the history of the United States at that time. A subsequent grand jury returned an indictment without the need for Leggett's testimony.
While the 6th Circuit definitely recognizes some sort of privilege for reporters faced with subpoenas from litigants, the scope and contours of that privilege are as yet not entirely defined. For instance, whereas the privilege is relatively strong in the civil context, its application in criminal cases is less certain, due to dictum in a case decided in 1987 stating that no such protection exists, under the First Amendment, for grand jury subpoenas. It is also unclear whether the privilege protects nonconfidential information and/or information beyond the mere identity of confidential sources. The U.S. Court of Appeals for the 6th Circuit has decided only two cases on the topic, and district courts within the circuit have also had relatively few opportunities to develop the privilege
Since the 2003 decision in McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), the reporter's privilege, when a federal question provides jurisdiction, has been limited to cases involving confidential sources. Some district courts have protected non-confidential material by following a reasonableness test applicable to subpoenas generally. Relying on any case decided before McKevitt is problematic. For the most part, federal courts have not adopted any special procedural rules concerning the quashing of a subpoena or the appellate process. In diversity cases, the state shield law applies. Wilson v. O’Brien, No. 07-cv-3994, 2009 U.S. Dist. LEXIS 22967, at *19 (N.D. Ill. Mar. 20, 2009).
The reporter's privilege has not been definitively established by the Eighth Circuit Court of Appeals. District courts within the Eighth Circuit are split. District courts in Minnesota and Missouri have adopted a qualified privilege in the civil context. However, the court in the Eastern District of Arkansas found no reporter's privilege existed in either the criminal or the grand jury context. The Eighth Circuit's decision in Cervantes has been recognized by treatises and cases as establishing a qualified privilege. See Cervantes v. Time, Inc., 464 F.3d 986 (8th Cir. 1972). However, in a subsequent case arising from the Starr investigation in Arkansas, the Eighth Circuit Court of Appeals stated that the question of whether a reporter's privilege exists "is an open one in this circuit." In re Grand Jury Subpoena Duces Tecum, 112 F.3d 910, 918 n.8 (8th Cir. 1997).
Relying on the United States Supreme Court’s decision in Branzburg v. Hayes, the Ninth Circuit Court of Appeals offers journalists a relatively broad qualified privilege from compelled disclosure. The court has found that in an ordinary civil case, the litigant’s “interest in disclosure should yield to the journalist’s privilege.” Shoen v. Shoen, 48 F.3d 412, 416 (9th Cir. 1995) (citing Zerilli v. Smith, 656 F.2d 705, 713 (D.C. Cir. 1981)). It also has interpreted the role of the media broadly, declaring that “[w]hat makes journalism journalism is not its format but its content.” Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993).
But Ninth Circuit cases applying the journalist’s privilege (also referred to as the reporter’s privilege) have had mixed results—protecting journalists in some circumstances but forcing disclosure in others. On the one hand, some courts within the circuit have held, for example, that an investigative author could not be forced to reveal information told to him in confidence for use in his book, id.; non-party reporters could not be deposed or forced to produce notes or other materials, L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 89 F.R.D. 489, 493 (C.D. Cal. 1981); and a non-party magazine publisher could not be compelled to reveal unpublished information, Carushka, Inc. v. Premiere Prods., Inc., 17 Med. L. Rep. 2001 (C.D. Cal. Sep. 1, 1989). On the other hand, other courts within the circuit have held that a television news cameraman must testify regarding his personal observations while on assignment, Dillon v. City & Cty. of San Francisco, 748 F. Supp. 722 (N.D. Cal. 1990); that a tabloid must reveal its sources in a defamation action where the plaintiff must show “actual malice,” Star Editorial, Inc. v. U.S. Dist. Court, 7 F.3d 856, 861 (9th Cir. 1993); that a journalist could be jailed for refusing to identify the confidential sources who had provided him with copies of non-public court documents, Farr v. Pitchess, 522 F.2d 464, 468-69 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976); that a blogger could be held in civil contempt where he refused to provide to a grand jury his unpublished video footage obtained in the course of newsgathering, In re Grand Jury Subpoena (Wolf v. United States), 201 Fed. App’x 430, 423-33 (9th Cir. 2006); and that reporters could be forced to appear before a grand jury and provide materials regarding their confidential source for grand jury transcripts, In re Grand Jury Subpoenas to Fainaru-Wada & Williams, 438 F. Supp. 2d 1111, 1121 (N.D. Cal. 2006).
Based on these and other cases, predicting how a court in the Ninth Circuit will react to a particular set of factual circumstances can be difficult. While the reporter’s privilege is relatively strong in theory, the protection offered by the Ninth Circuit has varied in practice.
In Alabama, a reporter has an absolute privilege to refrain from disclosing sources of information obtained in the newsgathering process under Alabama's shield statute, codified at Ala. Code § 12-21-142, provided that the information obtained from the source has been published, broadcast, or televised. Alabama also recognizes a qualified reporter's privilege under the First Amendment to the United States Constitution. Although the case law addressing the shield statute and the qualified privilege under the First Amendment is not extensive, Alabama courts have demonstrated a willingness to uphold the privilege.
There is no definitive or authoritative law in Alaska concerning a news reporter's privilege. There are no significant appellate court rulings on the issue. There is a mediocre shield law that is of little consequence. However, the privilege has been asserted in a number of trial court cases over the past 40 years. In virtually all of these, the press interests have been represented by the author of this outline, and in none of them has a reporter been compelled to testify. This is true of both state and federal courts, civil and criminal cases (as well as at least one grand jury proceeding), and in cases not involving confidential sources as well as ones that did. In a much larger number of cases subpoenas or informal demands for testimony or work product of reporters have been successfully addressed without having to present the matter to a court. In at least one case, attorney fees were awarded to the press. The author is unaware of any case in which a reporter has been jailed or fined for failing to testify or produce documents.
The Arizona legislature has enacted two statutes that protect reporters from the compelled disclosure of unpublished notes, outtakes and other journalistic work product. First, A.R.S. § 12-2237 (the “Arizona Shield Law”) shields journalists from compelled disclosure of confidential sources. Illustratively, the Arizona Court of Appeals upheld a reporter’s right not to produce the source of confidential information obtained outside of litigation. Flores v. Cooper Tire & Rubber Co., 218 Ariz. 52, 178 P.3d 1176 (App. 2008). Similarly, the Arizona Superior Court upheld a reporter's right not to produce to a grand jury notes and tape-recorded conversations with an at-large serial arsonist. In re Hibberd, 262 GJ 75, Feb. 26, 2001. While the unpublished decision enforced the Arizona Shield Law, the statute has been construed to apply to confidential information only.
Second, A.R.S. § 12-2214 (the “Arizona Media Subpoena Law”) imposes a number of requirements on subpoenas directed to journalists and news organizations. Under the statute, a media subpoena is invalid unless accompanied by an affidavit setting forth six specific averments. The statute applies to civil and criminal subpoenas, but not grand jury subpoenas. A.R.S. § 12-2214(A), (D). It applies to confidential and non-confidential information. Among other things, it forces litigants to describe all efforts they have taken to secure the requested information elsewhere. Although there are but a few authorities interpreting either the Arizona Shield Law or the Arizona Media Subpoena Law, the Arizona Court of Appeals’ recent decision in Phoenix Newspapers, Inc. v. Reinstein, 240 Ariz. 442, 381 P.3d 236 (App. 2016), was a watershed event for news organizations operating in Arizona. That case not only upheld a strict application of the Media Subpoena Law, but also recognized that its statutory protections include a qualified journalist’s privilege under the First Amendment.
In addition to these statutory safeguards, , reporters in the Ninth Circuit enjoy a strong First Amendment privilege against third-party discovery of published and non-published journalistic work product. See Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995). The First Amendment privilege applies in civil and criminal proceedings. Id.
Arkansas has had a statute in effect since 1937 specifically shielding reporters and others involved in news gathering from being required to reveal the identities of their confidential sources. The statute is fairly broad and has been interpreted to encompass both criminal and civil proceedings. The statute has undergone few changes since Arkansas voters adopted it as an initiated act in 1936. The statute was amended in 1949 to bring radio broadcasters within the law's protection and, in 2011, the statute was amended to provide protections to television stations and “internet news sources.”
California has a reporter’s privilege embodied both in Article I, § 2(b) of the California Constitution and in California Evidence Code § 1070. The California Supreme Court has interpreted these “shield laws” to give broad protection to reporters. California courts also have recognized a reporter’s privilege under the First Amendment. In addition, in response to a number of highly-publicized reporter subpoenas, the California Legislature has adopted procedural mechanisms under state statutory law designed to confer greater protection for reporters.
However, there are limits on the protection of California’s state shield laws. Because the state laws only prevent a finding of contempt, they provide minimal protection to reporters who are parties to litigation. Moreover, although California’s state shield laws are absolute in civil cases where a party seeks information from a non-party reporter, and in criminal cases where the prosecutor is seeking the information, in criminal cases the defendant’s right to a fair trial must be balanced against the reporter’s rights.
In 1990 the Colorado General Assembly acknowledged 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 the people of the state of Colorado." This acknowledgment served as a platform for adopting broad statutory protections for newspapers, magazines, television and radio broadcasters and other publishers of information. As enacted, the Colorado Press Shield Law provides a qualified privilege for materials and information obtained by a newsperson in the course of newsgathering activities. The shield laws' qualified protections extend to both confidential and non-confidential sources and apply to civil and criminal actions as well as administrative proceedings.
Connecticut's reporter's shield law took effect October 1, 2006. It codifies the privilege and establishes standards for overcoming it in Connecticut state court proceedings. Connecticut's state and federal courts had recognized the privilege before the enactment of the new statute, deriving the substance of the privilege from case law emanating from the Court of Appeals for the Second Circuit. State court case law on the subject is sparse because the issue most often arises on reporters' motions to quash subpoenas, the court's rulings on which are usually oral and not memorialized in written opinions. As of this writing there are no appellate decisions and only two superior court decisions interpreting the new statute. In federal court, the privilege is governed by Second Circuit common law principles, as articulated in Gonzales v. NBC, 194 F.3d 29 (2d Cir. 1999).
Several high profile cases—including one involving the jailing of a New York Times reporter who defied a court order to reveal her source to a grand jury—have shaped the current landscape of the reporter’s privilege within the D.C. Circuit. These cases have reinforced the existence of a First Amendment privilege in the civil context, increased the challenge to asserting the privilege in the grand jury context, and raised the possibility of a federal common law reporter’s privilege available in all contexts.
The D.C. Circuit recognizes a qualified First Amendment privilege in civil cases against compelled disclosure of sources and other unpublished information. The court applies a two-prong test to determine whether the privilege is overcome: (1) the party seeking the information has exhausted all reasonable, alternative means of identifying the source; and (2) the information goes to the heart of that party’s case. Lee v. Dep’t of Justice, 413 F.3d 53 (D.C. Cir. 2005); see also Goldberg v. Amgen, Inc., 123 F. Supp. 3d 9 (D.D.C. 2015); Estate of Klieman v. Palestinian Auth., 293 F.R.D. 235 (D.D.C. 2013); Peck v. City of Boston (In re Slack), 768 F. Supp. 2d 189 (D.D.C. 2011); Saperstein v. Palestinian Auth. (In re Goldberg), 693 F. Supp. 2d 81 (D.D.C. 2010); Hatfill v. Gonzales, 505 F. Supp. 2d 33 (D.D.C. 2007); CFTC v. McGraw-Hill Cos., Inc., 507 F. Supp. 2d 45 (D.D.C. 2007); Mgmt. Info. Techs., Inc. v. Alyeska Pipeline Serv. Co., 151 F.R.D. 471 (D.D.C. 1993); Palandjian v. Pahlavi, 103 F.R.D. 410 (D.D.C. 1984).
Some case law indicates that the court should apply a third factor as well, balancing the public’s interest in protecting the newsgathering process against the private interest in disclosure. This third factor, however, remains a topic of active judicial debate in this Circuit. Compare Lee v. Dep’t of Justice, 428 F.3d 299 (D.C. Cir. 2005) (Tatel & Garland, JJ., dissenting from denial of rehearing en banc) (arguing that courts should weigh the information-seeking party’s “private interest” in the lawsuit against “the public’s interest in protecting journalists’ ability to report without reservation on sensitive issues”), and Grunseth v. Marriott Corp., 868 F. Supp. 333, 335-36 (D.D.C. 1994) (“Plaintiff has demonstrated no overwhelming or compelling societal interest in overcoming the presumption of favoring First Amendment protections for a reporter’s sources”), with Lee v. Dep’t of Justice, 401 F. Supp. 2d 123 (D.D.C. 2005) (characterizing the proposed public/private interest balancing test as “inherently unworkable”), and Hatfill v. Gonzales, 505 F. Supp. 2d 33 (D.D.C. 2007) (“without controlling precedent from the Circuit that the public interest balancing element is a necessary protection for reporters, the Court must decline to employ it”).
The privilege remains strongest in civil cases where the journalist or news organization is not a party. E.g., Zerilli v. Smith, 656 F.2d 705 (D.C. Cir. 1981). The courts also will evaluate the privilege, but afford it somewhat less weight, in civil cases where the press is a party. E.g., Carey v. Hume, 492 F.2d 631 (D.C. Cir. 1974) (affirming district court order directing journalists to identify sources who were eyewitnesses to events at issue).
The qualified First Amendment privilege also is recognized in enforcement actions by federal agencies, although it is not quite as strong as in the civil context. CFTC v. McGraw-Hill Cos., Inc., 390 F. Supp. 2d 27 (D.D.C. 2005); CFTC v. Whitney, 441 F. Supp. 2d 61 (D.D.C. 2006).
The D.C. Circuit has split on whether to recognize a First Amendment reporter’s privilege in the grand jury context. In re Miller, 397 F.3d 964 (D.C. Cir. 2005), opinion superseded by 438 F.3d 1141 (D.C. Cir. 2006). That case, which involved grand jury subpoenas that were sent to several journalists, resulted in four different opinions from the three-judge panel. First, writing for the court, Judge Sentelle found no First Amendment privilege with regard to grand jury subpoenas and stated that even if a common law privilege exists, it was overcome on the facts. Second, in a separate concurrence, Judge Sentelle argued that there is no common law reporter’s privilege in the grand jury context. Third, Judge Henderson concurred separately to advocate for a narrow holding that “any federal common-law reporter’s privilege that may exist is not absolute and that the . . . evidence defeats whatever privilege we may fashion.” Fourth, Judge Tatel concurred in the judgment alone and wrote that while some “First Amendment safeguards” must exist for reporters who receive grand jury subpoenas, there were “no grounds for a First Amendment challenge to the subpoenas at issue here,” and likewise that while “the consensus of forty-nine states plus the District of Columbia . . . would require us to protect reporters’ sources as a matter of federal common law,” that common law privilege would be overcome based on the harm caused by the leak at issue and the grand jury’s demonstrated need for the reporters’ testimony. The press may still seek protection from the court where harassment or bad faith can be established, however. In re Special Counsel Investigation, 332 F. Supp. 2d 26 (D.D.C. 2004).
Some case law recognizes the privilege in criminal proceedings outside the grand jury context, which cannot be overcome unless the party seeking the information shows a compelling need for the information. E.g., United States v. Ahn, 231 F.3d 26 (D.C. Cir. 2000) (affirming district court’s granting of reporters’ motion to quash, where subpoena would have required reporters to reveal sources of story, on the grounds that their testimony was irrelevant); United States v. Hubbard, 493 F. Supp. 202, 205 (D.D.C. 1979) (quashing subpoena from criminal defendant to reporter on ground of “newsman’s privilege” where alternate means of obtaining the requested information existed and “the testimony of the reporter would be far less than necessary to a fair resolution of this case”). A more recent opinion, however, calls into question the application of the privilege in the criminal context. United States v. Libby, 432 F. Supp. 2d 26 (D.D.C. 2006) (declining to recognize a First Amendment privilege at trial stage of criminal prosecution).
Certain D.C. Circuit opinions suggest that arguments for a common law privilege, in civil and criminal contexts, may be fruitful. The D.C. Circuit has never expressly rejected the common law privilege. In re Miller, 397 F.3d 964 (D.C. Cir. 2005), opinion superseded by 438 F.3d 1141 (D.C. Cir. 2006) (no need to decide whether common law reporter’s privilege exists because it would be overcome on the facts). Moreover, Judge Tatel has authored several well-reasoned concurrences in the D.C. Circuit that strongly advocate for this 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). Several district court opinions, however, have rejected the existence of a common law privilege. 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).
Delaware has a long common law history of respecting journalistic privilege. Although a reporter may only refuse to testify by claiming a privilege expressly granted under the Reporters' Privilege Act (see Delaware Rule of Evidence 513), those privileges both originated in and continue to be shaped by case law. Both common law and statutory law presume that once a reporter's privilege has been asserted, it is valid unless and until the party seeking the information proves that the privilege should not apply. The burden of overcoming the presumption is difficult. Several issues surrounding reporters' privilege have not yet been addressed in Delaware. However, this should not be interpreted as potential weakness in the doctrine, as the case law that does exist indicates a strong commitment to the privilege.
District of Columbia
The District of Columbia has codified the journalist’s privilege against the compelled disclosure of sources, news, and information. The District of Columbia enacted the Free Flow of Information Act, D.C. Code §§ 16-4701 et seq., in 1992 largely in response to the D.C. Court of Appeals’ decision in Wheeler v. Goulart, 593 A.2d 173 (D.C. 1991), which upheld an order holding a Washington Post reporter in civil contempt for refusing to answer questions regarding sources. See generally Grunseth v. Marriott Corp., 868 F. Supp. 333, 336 (D.D.C. 1994).
The District’s shield law provides an absolute privilege against compelling testimony about sources, whether or not those sources are confidential. The shield law also provides a qualified privilege for unpublished news or information, including any notes, outtakes, photographs or photographic negatives, video or sound tapes, film, or other data, irrespective of its nature. The courts have applied the privilege broadly, concluding that it applies “to information gathered outside of the District, by non-resident journalists, or about events that occurred elsewhere.” Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2381 (D.C. Super. Ct. 1999). The court also held that the shield law applies to documents created or sources found prior to the enactment of the Free Flow of Information Act. Id.
The reporter's privilege in Florida, as in most states, finds it roots in the First Amendment and the plurality opinion of Branzburg v. Hayes, 408 U.S. 665 (1972). The privilege exists in the common law and constitutional law of Florida and embodies a recognition that protecting a free and unfettered press is a sufficiently compelling interest to justify depriving litigants of potential sources of information in many cases. See, e.g., State v. Davis, 720 So. 2d 220 (Fla. 1998); Tribune Co. v. Huffstetler, 489 So. 2d 722 (Fla. 1986).
In 1976, in light of Branzburg, Florida first afforded a qualified reporter's privilege. See Morgan v. State, 337 So. 2d 951 (Fla. 1976). In Morgan, the Florida Supreme Court adopted the balancing test set forth in Justice Powell's concurring opinion in Branzburg. Thus, in assessing whether the journalist's privilege is overcome, a court must balance the interest sought to be advanced in compelling disclosure against the public's interest in unencumbered access to information. Over the next two decades, Florida courts refined that balancing test. Today, Florida's common law privilege protects a journalist's news-gathering information unless the subpoenaing party shows that the information sought is relevant to the specific issues in the case, that the information cannot be obtained by means less destructive of First Amendment rights, and that a compelling interests exists in disclosure sufficient to override the interests protected by the privilege. See Davis, 720 So. 2d at 224.
In 1998, the balancing test was codified in Section 90.5015, Florida Statutes. The statute became effective on May 12, 1998. As with the common law privilege, once the statutory privilege attaches, it only can be overcome by a clear and specific showing that the information in the journalist's possession is relevant and material to unresolved issues in the case, cannot be obtained from alternative sources, and compelling need exists that requires disclosure. Section 90.5015, by its express terms, does not limit the privileges existing under the First Amendment, Florida Constitution (Article I, § 4), or Florida common law. § 90.5015(5), Fla. Stat. (2016). Thus, it is appropriate to assert the U.S. and Florida constitutions, Florida common law, and Section 90.5015 in objecting to a reporter's subpoena. As a practical matter, however, the statutory protection is similar to the protection available to journalists in Florida under federal law. See United States v. Fountain View Apartments, Case No. 6:08-cv-891-ORL-35-DAB, 2009 WL 1905046, n.5 (M.D. Fla. July 1, 2009) (application of either federal common law or Section 90.05015(2) “will yield the same result, as the factors of each are virtually indistinguishable”) (quoting McCarty v. Bankers Ins. Co., Inc., 195 F.R.D. 39, 46 (N.D. Fla. 1998)); Gregory v. Miami-Dade County, Case No. 13-21350-CIV, 2015 WL 3442008 , n.7 (S.D. Fla. May 28, 2015) (same).
Since its enactment in 1990, the Georgia Supreme Court has repeatedly enforced Georgia's qualified reporter's privilege to protect the news media. Additionally, the Court has recognized a right of automatic appeal for non-party reporters in the event a trial court orders disclosure of newsgathering information notwithstanding an objection under the privilege. Given the established law regarding the privilege, the news media routinely prevails on those occasions that a litigant seeks to compel information from a non-party reporter obtained in the process of newsgathering.
It is uncertain whether Hawai'i recognizes the privilege of a journalist not to disclose his or her source(s) of information. In 2008, Hawai’i enacted a shield statute that included a sunset provision that would repeal the statute on June 30, 2011, unless the legislature reauthorized its extension before that time. In 2011, the legislature extended the life of the statute for two additional years, but in June 2013, the statute was allowed to lapse and therefore was automatically repealed. A subsequent legislative effort in 2015 to re-enact a similar shield statute failed, leaving Hawai’i without a shield statute.
In the only reported appellate case on the issue, the Hawai'i Supreme Court declined to recognize a First Amendment or evidentiary privilege under the facts of that case. In re Goodfader, 45 Haw. 317, 367 P.2d 472 (1961). However, the Goodfader case was decided prior to Branzburg v. Hayes, 408 U.S. 665 (1972). Subsequent to Branzburg, a Hawai'i trial court applied the privilege to bar discovery of unpublished photographs taken by a newspaper photographer. Belanger v. City and County of Honolulu, Civil No. 93-4047-10 (Haw. 1st Cir. Ct. May 4, 1994).
Idaho does not have a shield statute and has very few reported decisions considering the application of the reporter’s privilege. Attempts to invoke the protections of the reporter’s privilege have been based on constitutional and common law grounds and Idaho courts have developed a very unsettled relationship with the reporter’s privilege. In the earliest consideration of the privilege following the U.S. Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), the Idaho Supreme Court rejected the privilege, stating that no such privilege had been recognized by the U.S. Supreme Court in Branzburg. Caldero v. Tribune Publishing Co., 98 Idaho 288, 562 P.2d 791 (1977). Some years later, the Idaho Supreme Court expressly disavowed its prior rejection of the privilege and held that such a privilege did exist, in certain circumstances, based in part upon the federal constitution, in part upon the Idaho constitution and in part upon common law. In re Wright, 108 Idaho 418, 700 P.2d 40 (1985). In its most recent examination of the privilege, the Idaho Supreme Court has again indicated a hostility toward the privilege and strictly limited the ruling in Wright, and indicated that future consideration of the privilege will turn heavily on the facts and require a strong showing of a potential ‘chilling effect’ in order for the privilege to be recognized. State v. Salsbury, 129 Idaho 307, 924 P.2d 208 (1996).
In Illinois, reporters have a statutory qualified privilege protecting their sources, whether confidential or nonconfidential, from compelled disclosure. The Illinois Reporter’s Privilege Statute, 735 ILCS 5/8-901 to 8-909, (the “Statute”) provides that a court cannot order disclosure of the source of any information obtained by a reporter, except upon finding that “all other available sources of information have been exhausted” and either that “disclosure of the information sought is essential to the protection of the public interest involved” or in libel or slander cases, that the plaintiff’s need for disclosure “outweighs the public interest in protecting the confidentiality of sources of information used by a reporter.”
The statute is designed to preserve the autonomy of the press by allowing reporters to assure their sources of confidentiality, permitting the public to receive complete, unfettered information. In re Arya, 226 Ill. App. 3d 848, 852, 589 N.E.2d 832, 834 (1992). The Act incorporates the free press guarantees of the First Amendment and Art. I, § 4, of the Illinois Constitution (1970), and confers a presumptive privilege on the newsgathering functions of reporters and the media. “The reporter’s privilege has evolved from a common law recognition that the compelled disclosure of a reporter’s sources could compromise the news media’s first amendment right to freely gather and disseminate information.” In re Special Grand Jury Investigation of Alleged Violation of Juvenile Court Act, 104 Ill. 2d 419, 428–29, 472 N.E.2d 450, 454 (1984). “[T]his Act reflects ‘a paramount public interest in maintenance of a vigorous, aggressive and independent press capable of participating in robust, unfettered debate over controversial matters, an interest which has always been a principal concern of the First Amendment.’” People ex rel. Scott v. Silverstein, 89 Ill. App. 3d 1039, 1043, 412 N.E.2d 692, 694-95 (1980), rev’d on other grounds, 87 Ill. 2d 167 (1981) (citations omitted).
The Illinois Supreme Court and other Illinois courts have consistently upheld the principles behind the Statute. See, e.g., In Re Special Grand Jury Investigation, 104 Ill. 2d 419, 472 N.E.2d 450 (reversing circuit court’s order divesting reporter of privilege because the grand jury had not exhausted all other available sources of information); People v. McKee, 2014 IL App (3d) 130696 ¶ 11, 24 N.E.3d 75, 43 Media L. Rep. 1123 (2014) (reversing lower court’s divestiture order where subpoena was relevant only to collateral matters in proceeding); Cukier v. American Medical Ass’n, 259 Ill. App. 3d 159, 630 N.E.2d 1198 (1994)(refusing divestiture of privilege because the public has an interest in protecting confidentiality of sources, and because plaintiff failed to allege lack of other available sources); ’’People v. Slover, 323 Ill. App. 3d 620, 753 N.E.2d 554 (2001) (reversing jail conviction for reporter for refusing to produce unpublished crime scene photographs sought by a criminal defendant and applying the statutory reporter’s privilege); Kelley v. Lempesis, No. 13-cv-4922, 2015 WL 4910952 (N.D. Ill. Aug. 17, 2015) (quashing subpoena for non-party broadcaster’s outtakes in civil case where litigant did not exhaust alternative sources); Dunn v. Hunt, 31 Media L. Rep. 2245 (Ill. Cir. Ct., 2003) (civil plaintiff “has not met his burden to overcome the privilege and compel disclosure of the non-broadcast news materials”) Illinois v. Fort, 15 Media L. Rep. 2251 (Ill. Cir. Ct. 1988) (quashing subpoena where criminal defendant could not show that documents were essential for a fair trial and that he had exhausted all other available sources). But see People v. Pawlaczyk, 189 Ill. 2d 177, 724 N.E.2d 901 (2000) (upholding the principles behind the Statute with some favorable language for the media, but ultimately allowing disclosure and ordering the media to identify their sources to a grand jury on the grounds that disclosure was “essential to the public interest involved”).
Indiana has a strong shield law that provides an absolute and unqualified privilege protecting reporters from revealing sources of information obtained in the course of newsgathering, whether or not that information was published or broadcast. See Ind. Code §§ 34-46-4-1, 34-46-4-2. It is important to note, however, that this privilege applies only to state related matters. It does not apply to federal matters such as federal grand jury investigations, or cases in federal court involving federal issues. See In re Indiana Newspapers Inc., 963 N.E.2d 534, 544 (Ind. Ct. App. 2012) (“Federal law has no statutory equivalent to various states’ shield laws.”). The shield law privilege belongs to the newsgatherer and is absolute. Indiana courts have not yet resolved whether the shield law protects the information obtained from a source or whether the law protects nonconfidential information. In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146, 149 (Ind. App. 1986).
As for non-statutory privileges, the Indiana Supreme Court has applied a balancing test in instances where reporters attempt to raw materials such as video or other broadcast interviews (although the Court did not express an opinion on whether a reporter’s notes or other records are privileged). In re WTHR-TV (State v. Cline), 693 N.E.2d 1, 4, 10, n. 8 (Ind. 1998). The standard as announced in WTHR-TV is that the First Amendment does not require a special showing of need and relevance beyond those imposed under normal discovery procedures when information in a criminal case is demanded from a reporter. Thus, you need to look to the Indiana Rules of Trial Procedure are instructive. In re Stearns (Vollmer v. Zulka), 489 N.E.2d 146, 151 (Ind. App. 1986), similarly balances First Amendment interests against the need for information in the civil context.
In Iowa, the judicially created reporter's privilege "protects confidential sources, unpublished information and reporter's notes." Waterloo/Cedar Falls Courier v. Hawkeye Cmty. Coll., 646 N.W.2d 97, 102 (Iowa 2002). The Iowa reporter's privilege is grounded on state and federal constitutional law only; there is no shield statute or other legislative protection for journalists. The reporter's privilege has been the subject of three Iowa Supreme Court decisions, over the past 37 years, all of them favorable to the press. Waterloo/Cedar Falls Courier v. Hawkeye Cmty. Coll., 646 N.W.2d 97 (Iowa 2002); Bell v. City of Des Moines, 412 N.W.2d 585 (Iowa 1987); Lamberto v. Bown, 326 N.W.2d 305 (Iowa 1982). Because Iowa cases employ a Farber two-step procedure for in camera inspections, Iowa journalists typically do not face an immediate criminal contempt citation. Lamberto v. Bown, 326 N.W.2d 305 (Iowa 1982).
The Kansas legislature enacted a shield law in 2010. It is found at K.S.A. 60-480, et seq. It applies in litigation in Kansas state courts and should also be applied in civil litigation in federal court in Kansas in which the court’s jurisdiction is predicated on diversity of citizenship. See, e.g. Federal Rule of Evidence § 501 (“in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision”); Black & Veatch Corp. v. Aspen Ins. (UK) Ltd., 297 F.R.D. 611 (D. Kan. 2014); White v. American Airlines, Inc., 915 F.2d 1414, 1424 (10th Cir. 1990).
Prior to the enactment of the shield law, state courts applied a common law, First Amendment-based reporter’s privilege based on the decision of the Kansas Supreme Court in In re Pennington, 224 Kan. 573, 581 P.2d 812, 813 (1978), cert. denied, 440 U.S. 929 (1979). The Pennington decision proved confusing to litigants and judges attempting to understand and apply it in the years that followed. See, e.g., C. Grenz, “Into Battle Without A Shield: How One Reporter’s Use Of An Anonymous Source Led To The Creation Of A Statutory Reporter’s Privilege In Kansas,” 60 U. Kan. L. Rev. 1071 (2012). Nevertheless, the decision remains good law, and to the extent Pennington may afford greater protection to a journalist than is afforded by the shield law, Pennington will control. See, K.S.A. 60-485 (shield statute does not limit or “otherwise affect a privilege guaranteed by the constitution of the United States or the state of Kansas.”). Although it is difficult to envision a situation in which this will be the case, it is advisable for practitioners to assert both privileges—the Kansas shield statute and the qualified First Amendment-based privilege referred to in Pennington-- in state court litigation and in diversity cases in federal court.
In federal court proceedings involving the application of federal law, the qualified First Amendment privilege first recognized by the United States Court of Appeals for the Tenth Circuit in Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977) applies.
Very little has changed in Kentucky law with regard to reporter's privilege since Branzburg v. Hayes, which originated in Kentucky, was decided by the United States Supreme Court in 1972. Kentucky has had a reporter’s shield statute for many years. See KRS 421.100. The statute provides limited protection, however, shielding reporters only from being forced to disclose the identities of their confidential sources. The statute has never faced constitutional challenge and is limited in this aspect only by the state court decision in Branzburg. Branzburg v. Pound, 461 S.W.2d 345 (Ky. 1971), aff'd sub nom., 408 U.S. 665 (1972).
As a matter of state law, the reporter's privilege in Louisiana is quite strong. The reporter's shield statute applies to unpublished information as well as to confidential sources. La. R.S. 45:1451 et seq. In addition, the State Supreme Court has held that a reporter's privilege applies to unpublished information as a matter of state and federal constitutional law. See In re Grand Jury Proceedings (Ronald Ridenhour), 520 So. 2d 372 (La. 1988). To our knowledge, reporters have not been jailed or fined for invoking the reporter's privilege in Louisiana.
On April 18, 2008, Maine Governor John Baldacci signed into law “An Act to Shield Journalists' Confidential Sources”—Maine’s first statutory reporters’ privilege. The statute is codified at 16 M.R.S.A. § 61. Before then, the reporter's privilege had reached the Maine Supreme Judicial Court twice. In 1990 the Court addressed access to non-confidential outtakes in a criminal proceeding and adopted the balancing test propounded by the First Circuit in Bruno & Stillman, Inc. v. Globe Newspaper Co., 633 F.2d 583, 6 Med.L.Rptr. 2057 (1st. Cir. 1980). See In re Letellier, 578 A.2d 722, 17 Med.L.Rptr. 2169 (Me. 1990). The Court held, "The First Amendment . . . requires that we balance the competing societal and constitutional interest on a case-by-case basis, weighing any possible injury to the free flow of information against the recognized obligation of all citizens to give relevant evidence regarding criminal conduct."
In the Supreme Judicial Court's only prior decision on the subject, State v. Hohler, 543 A.2d 364, 15 Media L.Rep. 1611 (1988), the Court refused to recognize any "qualified privilege for a reporter to refuse to testify concerning non-confidential, published information obtained from an identified source."
Maryland's Shield Law was most recently amended in 2010 and 2014 to extend the privilege against compelled disclosure to students and independent contractors. The 2010 amendment covered post-secondary students engaged in news gathering or dissemination recognized by their schools as a scholastic activity or in conjunction with a school-related activity. See Md. Cts. & Jud. Proc. Code Ann. § 9-112(b)(3), (c)(2). Similarly, the 2014 amendment covered persons who are, or have been, an independent contractor of the news media acting within the scope of a contract in any news gathering or news disseminating capacity. § 9-112(b)(2), (c)(2).
The law was previously amended in 1988, in response to the decision in Tofani v. State, 465 A.2d 413, 9 Media L. Rep. 2193 (Md. 1983). Tofani concerned a journalist who had written and published several articles about sexual assaults in prison. 465 A.2d at 414. The journalist quoted and identified several of the victims and assailants. Id. When the journalist was subpoenaed to testify before a grand jury regarding the accuracy of her articles, she refused to disclose the names of her sources, on the basis of Maryland's Shield Law. Id. Denying the journalist's motion to quash, the Court held that the journalist waived her privilege by publishing those names in the press. Id. at 417-18. In response, the Maryland legislature added a broad anti-waiver provision to other 1988 amendments, absolutely prohibiting the compelled disclosure of the identity of sources, even if their identities have been published. § 9-112(e). The 1988 amendments also raised the standard of proof applicable in seeking to overcome the statutory qualified privilege against compelled disclosure of "news or information," requiring proof by "clear and convincing evidence." Md. Cts. & Jud. Proc. Code Ann. § 9-112(d)(1).
Massachusetts does not have a shield law, and the Supreme Judicial Court of Massachusetts has not been willing to recognize a reporter's privilege under either the Massachusetts or U.S. Constitution. Nevertheless, Massachusetts courts have been willing to use a common law balancing test based on general First Amendment principles to protect reporters' confidential sources in some circumstances.
Michigan recognizes a qualified privilege for journalists served with a subpoena against the disclosure of unpublished information. In the one appellate decision, King v Photo Marketing Association International, 120 Mich App 527; 327 NW2d 515, 517-518 (1982) the Court stated that a reporter could not be compelled to relate confidential information without a showing that the information was critical to the subpoenaing party's case and that there were no other sources for the information. In addition, Michigan statutes provide protection to reporters from subpoenas issued in Grand Jury proceedings MCL 767.5a and from subpoenas issued by Prosecutors under MCL § 767A.6 unless they are the object of the investigation. Under the Grand Jury statute the privilege applies except in cases involving life imprisonment in which case the privilege is limited in the same manner as subpoenas issued in civil cases, to wit, the information must be critical to the subpoenaing party's case, the reporter must be the only source of the information and the information must be relevant. The Michigan statute which allows prosecutors to apply for subpoenas from court's to act as a one person grand jury, contains a similar limitation.
One other case on photographs required the newspaper to produce photographs, published and unpublished of a fire scene. However, the holding in the case is limited by the fact that the newspaper had routinely provided photographs for the cost of reproduction until a month before the request for photos. Under the circumstances the newspaper was unable to file an affidavit with regard to the burden of providing photos since it had clearly done so for many years before.
Trial courts, however, have been liberal in their willingness to protect reporters from burdensome requests for information, whether testimony or notes.
Journalists in Minnesota have a strong qualified privilege for their confidential sources and unpublished information. A state statutory privilege was created in 1973, and was amended in 1998 to make clear that it applies to unpublished information as well as to confidential sources. Federal courts in the state recognize a qualified privilege under the First Amendment.
At the time of submission of this summary, there are no reported decisions from Mississippi's appellate courts regarding the reporters' privilege, qualified or otherwise. The authors were limited to selected orders from state trial courts which discuss the reporters' privilege, although with limited legal analysis. The majority of these orders recognize a qualified privilege for reporters and apply a three-part test forwarded by the Fifth Circuit Court of Appeals in Miller v. Transamerican Press, Inc., 621 F.2d 721, 726 (5th Cir. 1980). Only two reported cases from the federal courts in Mississippi apply the reporters' privilege. Brinston v. Dunn, 919 F. Supp. 240 (S.D. Miss. 1996); McKee v. Starkville, 11 Med. L. Rptr. 2312, No. EC-82-36-NB-D, (N.D. Miss. Jan. 27, 1985); see also Lousteau v. City of Canton, Miss., No. 3:11CV676-DPJ-FKB, 2013 WL 1827738, at *1 (S.D. Miss. Apr. 30, 2013) (discussing the privilege and permitting the requested discovery); Pyron v. Madison County, 13 Media L. Rep. 1621 (S.D. Miss. 1986) (same). The analysis below relies upon the limited trial court orders discussed below and cases from Mississippi's federal district courts.
Readers should recognize that these trial court orders and federal decisions carry no precedential value for state courts and should not be relied on as such. Instead, they provide the tenor which one may expect from state courts in Mississippi when applying for protection under the reporters' privilege. As these selected trial court orders rely upon the three-part analysis forwarded by the Fifth Circuit Court of Appeals and federal district courts in Mississippi, it would be reasonable to look to Fifth Circuit precedent in formulating an argument in favor of enforcing the reporters' privilege.
The following are various trial court orders gathered by the authors and referred to throughout this summary: Lousteau v. City of Canton, Miss., No. 3:11CV676-DPJ-FKB, 2013 WL 1827738, at *2 (S.D. Miss. Apr. 30, 2013); Linda Brune v. City of Jackson, No. 3:99cv77 (S.D. Miss. 2001); Alfred Stubblefield v. City of Jackson, No. 3:93cv279 (S.D. Miss. 1995); Charles R. Pope v. Village Apartments, Hinds County Circuit Court, No.92-72-436CV (Jan. 23,1995); State v. Byron de la Beckwith, Hinds County Circuit Court, No. 90-3-495CR H (July 28, 1993); Mary Doe v. Maurin-Ogden Mgmt. Corp., Hinds County Circuit Court, No. 90-64-502 (Feb. 8, 1991); State v. Hand, Tallahatchie County Circuit Court, No. CR89-49-C (T-2) (July 31, 1990); In re Grand Jury Subpoena, Hinds County Circuit Court, No. 38,664 (Oct. 4, 1989); City of Jackson v. Crawford, Municipal Court of Jackson, Mississippi, No. 88-0219 (May 20, 1988); State v. Young, Hinds County Circuit Court Crim. No. 825 (Mar. 16, 1988); McKee v. Starkville, 11 Med. L. Rptr. 2312, No. EC-82-36-NB-D, (N.D. Miss. Jan. 27, 1985); Hersdorffer v. Mississippi Publishers Corp., Hinds County Circuit Court, No. 29,251 (Apr. 7, 1983); Hawkins v. Williams, Hinds County Circuit Court, No. 29,054 (Mar. 16, 1983).
Montana has had a shield law in some form since 1943. It has been amended five times up to the present, each time being broadened or strengthened. There have been only five Montana Supreme Court cases discussing this law, State ex. rel. Adams v. District Court of the Third Judicial District, 169 Mont. 336, 546 P.2d 988 (1976); Sible v. Lee Enterprises, Inc., 224 Mont. 163, 729 P.2d 1271 (1986); State v. Slavin, 2004 MT 76, 320 Mont. 425; State v. Kolb, 2009 MT 9, 349 Mont. 10, 200 P.3d 504; and State v. Ditton, 2009 MT 10N. Note however, that State v. Ditton is a non-published, non-citable opinion.
One of the most noteworthy shield law cases in Montana was never appealed to the Supreme Court. The first was Linda Tracy v. City of Missoula, Missoula County Cause No. DV-00-849 (2001). A journalism student prepared and disseminated a video documentary of confrontations between police and citizens that occurred after a large scale police presence was brought into the city to deal with a Hells Angels gathering. The Angels themselves were a dud, but what many local people perceived as heavy handed police tactics led to two interesting days of protests, tear gas, and arrests. The city attempted to subpoena Linda Tracy's source material for use in criminal prosecutions, and she resisted on the basis of the shield law and the First Amendment. The District Court quashed the subpoena after a hearing.
A second noteworthy shield law case that was not discussed by the Supreme Court was the district court’s decision in Doty v. Molnar, Yellowstone County Cause No. DV 07-022 (2008). In Doty, a losing candidate for the Billings Public Service Commission in 2004 brought a libel suit against his opponent for comments made during the election. As part of his case, Doty issued a subpoena to the Billings Gazette seeking the identity, including email and IP address, of two individuals who had anonymously posted comments about Doty on the newspaper’s website under the aliases of “CutiePie” and “Always wondering.” Doty believed each was Molnar in disguise. The court quashed the subpoena because the judge agreed with the newspaper that the anonymous commenters were sufficiently connected to the newspaper to warrant protection under Montana’s shield law. This decision, among others, was affirmed in a non-published and non-citable opinion of the Montana Supreme Court in Doty v. Molnar, 2013 MT 236N, 317 P.3d 204.
Since the 1973 enactment of the "Free Flow of Information Act," Nebraska has had one of the broader, more absolute shield laws in the nation. Nebraska's shield law has generally been effective in limiting the number of subpoenas issued to reporters and, when such subpoenas have issued, has worked well at the trial court level to impose meaningful limits on the scope of testimony which can be compelled from reporters. The State's appellate courts have not addressed or dealt with shield law issues.
New Hampshire does not have a shield law, but the New Hampshire Supreme Court (the “Court”) has recognized a qualified constitutional privilege to protect the identity of confidential news sources. There have been few recent efforts to enact a shield law statute, although none has been successful. There has been only one recent case involving the reporter's privilege, State v. Gibson, 170 N.H. 316 (2017), discussed hereinafter. As the First Circuit Court of Appeals observed in Gray v. St. Martin's Press, 221 F.3d 243, 253 (2000), “New Hampshire law on the qualified confidential source privilege for reporters "is not a model of clarity." 221 F.3d at 253.
New Jersey originally adopted a reporter's privilege in 1933. Today New Jersey's newsperson's privilege is one of the strongest in the nation. Our Supreme Court has found "the legislative intent in adopting this statute ...as seeking to protect the confidential sources of the press as well as the information so obtained by reporters and other media representatives to the greatest extent permitted by the Constitution of the United States and that of the State of New Jersey" In Re Myron Farber, 78 N.J. 259 (1978). Indeed, the definition of "reporter" has been given a broad definition and court reading while the exceptions to the privilege are construed narrowly.
The privilege is statutorily based and protects both the source and the information. The privilege may only be pierced by a criminal defendant where the source or information sought is "relevant, material and necessary to the defense" and cannot be obtained from any less intrusive source. Once the criminal defendant satisfies these criteria the court then is required to examine the materials in camera to determine the probable admissibility at trial. If the court determines the materials are admissible then an order to produce only those materials which satisfy both aspects of the test will be issued.
Civil defendants and prosecutors cannot overcome the shield unless the reporter is an eyewitness to, or participant in, any act involving physical violence or property damage. Even this "eyewitness" exception has been construed narrowly so that a reporter cannot be compelled to testify if there are other witnesses. N.J.S.A 2A:84A-21(h).
Because of the strong privilege, reporters in New Jersey are rarely subpoenaed and if they are the subpoena is often withdrawn after a letter from counsel invoking the privilege.
In addition to Farber, supra., three other New Jersey Supreme Court decisions, State v. Boiardo, 82 N.J. 446 (1980) (Boiardo I); State v. Boiardo, 83 N.J. 350 (1980) (Boiardo II); and In re Schuman, 114 N.J. 14 (1989) set forth the history and scope of the privilege.
New Mexico has had a reporter’s privilege on the books since 1967. In 1973, following the United States Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), the statute was lengthened and strengthened. But in 1976, the New Mexico Supreme Court held the statute unconstitutional to the extent that it purported to regulate matters of procedure in the state courts by creating a rule of evidence.
The separation-of-powers problem was solved in 1982, when the state supreme court promulgated its own rule of evidence embodying a reporter’s privilege. Rule 11-514 endows journalists with a privilege to refuse to disclose “confidential sources” and “confidential information.” The privilege may yield, however, to a showing that “the confidential information or source is crucial to the case of the party seeking disclosure,” that the requesting party’s interest in disclosure “clearly outweighs the public interest” in continued confidentiality, and that the requesting party “has reasonably exhausted alternative means of discovering” the information. The rule also specifies the manner in which courts will adjudicate assertions of privilege. Meanwhile, the 1973 statute presumably continues to define the scope of the reporter’s privilege, and the procedure for enforcing it, in legislative and administrative proceedings.
North Carolina's statutory "reporter's privilege" or "shield law" became effective on October 1, 1999. This law was a reaction to a decision of the North Carolina Court of Appeals (later affirmed by the North Carolina Supreme Court) that held that reporters do not enjoy a privilege with respect to non-confidential information obtained from non-confidential sources in criminal cases. The court's surprising decision was contrary to some 14 years of consistent lower court decisions that had recognized a reporter's privilege under the federal and state constitutions in civil and criminal proceedings.
The North Carolina shield law is among the two strongest laws of its kind in the country—only Nevada’s unqualified, “absolute” reporter’s privilege is stronger. The shield law enacted in reaction to this adverse decision is quite expansive in the protection granted to journalists. It applies to virtually everyone connected with the publication or distribution of information via any news medium; it protects confidential as well as non-confidential information; it applies to judicial and quasi-judicial proceedings; and it can only be overcome by a specific showing of need by the party seeking the information.
While the experience of North Carolina's trial courts in interpreting this statute has been limited, the law seems to have been successful in clarifying the circumstances under which reporters may be compelled to disclose information obtained in the course of their newsgathering activities. Thus far, trial courts have had little difficulty in following the requirements of the statute, and journalists have been generally successful in protecting the fruits of their newsgathering labor.
The North Dakota statute governing the reporter's privilege is codified in N.D.C.C. § 31-01-06.2:
No person shall be required in any proceeding or hearing to disclose any information or the source of any information procured or obtained while the person was engaged in gathering, writing, photographing, or editing news and was employed by or acting for any organization engaged in publishing or broadcasting news, unless directed by an order of a district court of this state which, after hearing, finds that the failure of disclosure of such evidence will cause a miscarriage of justice.
The reporter's privilege has not been extensively litigated in North Dakota. The case that most thoroughly examines the statute is Grand Forks Herald v. Dist. Court in and for Grand Forks Cnty., 322 N.W.2d 850 (N.D. 1982). The North Dakota Supreme Court ruled that the North Dakota statute governing the reporter's privilege did not require that the news source be confidential in order for the court to determine that the privilege applied. In dicta, the court speculated that the confidentiality of the information is one of the factors that district courts should consider in determining whether the disclosure of the evidence will result in a miscarriage of justice. Additional factors in determining whether disclosure would result in a miscarriage of justice were whether alternative sources of information were available to the party seeking the information and whether disclosure would create a chilling effect on First Amendment rights.
Generally, application of the reporter's privilege is subject to the discretion of the district court. In its 1982 opinion, the court emphasized that the key factor in determining protected information is whether failure to disclose the information would result in a miscarriage of justice.
The statute was most recently considered in Moore v. State, 2006 ND 8, 711 N.W. 2d 606 (N.D. 2006), in which the North Dakota Supreme Court summarily affirmed a denial of an inmate’s application for post-conviction relief. The petitioner had alleged the trial court falsified the sentencing hearing transcript, and sought to subpoena a television reporter present at the hearing to support his assertion. The North Dakota Supreme Court upheld the district court’s order quashing the subpoena, which noted that the information sought was protected under N.D.C.C. § 31-01-06.2.
The reporter's privilege in Ohio is based primarily on statutory shield laws which protect the identity of confidential sources. In addition, however, a number of Ohio appellate and trial courts have recognized a constitutional protection for non-published/non-broadcast reporter's notes, outtakes, and other source-related materials.
Oklahoma has had a shield law since 1974. Originally adopted at the urging of the Oklahoma Press Association following the Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), the journalist’s privilege statute is now incorporated in the state's evidence code. It has been the subject of only one reported case, Taylor v. Miskovsky, 1981 OK 143, 640 P.2d 959. In the twenty-five years since that decision, however, the privilege has often been invoked by reporters who have found themselves the target of discovery in criminal and civil proceedings in which they are not directly involved. As a result, there are a number of unreported decisions at the trial level that give some indication how the courts treat the statute and the First Amendment principles that underlie it.
Oregon's reporter's privilege is found in ORS 44.510 to 44.540. With exceptions for information in a defamation action, and in some cases, information required under Criminal Compulsory Process, the privilege is absolute, protecting not just confidential sources but all unpublished information of any sort. There is some lingering question over "eye witness" testimony from a reporter concerning events actually perceived by the reporter.
The Pennsylvania Shield Law and the First Amendment reporter’s privilege provide broad protections to reporters in Pennsylvania who are subpoenaed for their notes, documents and/or testimony. The Shield Law is an absolute privilege that precludes the compelled disclosure of confidential source information. Conversely, the First Amendment reporter’s privilege is a qualified privilege that protects both confidential and non-confidential sources, as well as a reporter’s resource materials and unpublished and even published information. In order to overcome the First Amendment privilege, the person serving the subpoena must prove (1) that the information sought is crucial to the claims at issue, (2) that alternative sources of the information have been exhausted, and (3) that the reporter is the only source of the information.
It has been said that the Rhode Island Shield Law is a "suit of journalistic armor," effective so long as the silver bullets of the statute's few exceptions do not apply. It was originally passed in the early 1970's amidst mounting national concerns for safeguarding journalistic privilege and freedom of the press.
Rhode Island's Shield Law is codified in Rhode Island General Laws § 9-19.1-1, et seq., and is also known as the "Newsman's Privilege Act." It first became effective in 1971. Rhode Island is the only state in New England that has a Shield Law. In passing the Act, the Rhode Island General Assembly "plainly intended to respond to the legitimate needs of a free and dynamic press by according comprehensive safeguards to journalists and allied professionals against the compelled disclosure of confidential information and sources." Fischer v. McGowan, 585 F. Supp. 978, 984 (D.R.I. 1984). In essence, the Newsman's Privilege Act protects the disclosure of confidential information obtained by a person in his or her capacity as a news gatherer. R.I. Gen. Laws § 9-19.1-2. The protection does not apply if the information is already public, if the information is defamatory and the defendant is relying on the source of the information as a defense, or if the information should have been secret because of grand jury proceedings.
The South Carolina General Assembly adopted a reporter's shield law in 1993 in response to a major lobbying effort by the South Carolina Press Association with assistance from the South Carolina Broadcasters Association. The only appellate decision involving the shield law arose out of the murder trial of Susan Smith, the woman who rolled her car into a lake with her young sons strapped in their car seats. Twila Decker, a reporter for The State newspaper in Columbia, S.C. had obtained access to information in a report on the court-ordered psychiatric examination of the defendant in spite of what the trial judge believed was an airtight order of confidentiality for the report. Decker was called to the stand by the court and interrogated as to her source. Upon refusing to disclose her source Decker was held in contempt. Her imprisonment was stayed pending an accelerated appeal to the Supreme Court of South Carolina.
Recent cases involving motions to quash subpoenas served on journalists have generally met with success. The major points of dispute have been the scope of coverage, e.g., who is a journalist, and the exhaustion of alternative sources for the information.
In 1974, in the wake of the U.S. Supreme Court decision in Branzburg v. Hayes, 408 U.S. 665 (1972), Tennessee adopted its current reporter's shield law. The statute protects journalists' sources and information, gathered for publication or broadcast, whether obtained confidentially or not, and whether published or not. See Tenn. Code Ann. § 24-1-208. Tennessee's broad shield law has generally been interpreted by Tennessee courts to favor protection for journalists. Tennessee courts have not addressed whether a privilege is also available by way of the state or federal constitutions.
The state of the Reporter’s Privilege remains strong thanks to the state’s shield law, although there is still uncertainty as to how some provisions are interpreted. The shield law (signed on May 13, 2009, and effective upon signing) has been used on a number of occasions with mostly positive results. Not only have numerous court proceedings resulted in favorable rulings for reporters and the media, but there is considerable anecdotal evidence of many media outlets convincing the subpoenaing party to withdraw the subpoena upon being informed of the shield law.
In January 2008, the Utah Supreme Court adopted Utah Rule of Evidence 509. This rule provides broad protection to news reporters. In particular, it provides nearly absolute protection for confidential source information and qualified protection for non-confidential newsgathering information. Adoption of Rule 509 culminated nearly three years of intensive efforts by Utah news organizations and media outlets to enact a shield law. In adopting this rule, Utah became one of the last states to adopt a reporter’s privilege (either by statute, court rule, or appellate court opinion). Although there are not yet any judicial decisions interpreting the new rule, its robust protection for newsgathering expands the protection previously recognized under the First Amendment by state and federal trial courts in Utah. Prior to the adoption of this rule, Utah journalists and news organizations had been successful in persuading state and federal trial courts to quash subpoenas seeking reporters' testimony and news gathering material in a variety of criminal and civil cases on the grounds that the First Amendment provided a qualified privilege protecting such material. See generally Edward L. Carter, Reporter's Privilege in Utah, 18 BYU Journal of Public Law 163 (2003). State trial judges also had recognized the existence of a qualified reporter's privilege for both confidential and non-confidential information, such as outtakes and reporter notes. However, some Utah trial judges, citing the lack of a shield law or reported appellate decision defining the reporter's privilege, had been reluctant to afford journalists more than token protection from subpoenas. News reporters and photographers covering several high-profile criminal cases in 2001 and 2002 were forced to defend themselves against prosecutors' subpoenas and threats of subpoenas. Now that Rule 509 has been adopted, it is likely that courts will be much more willing, indeed obligated, to broadly protect both confidential and non-confidential newsgathering information.
Authors' note: The authors would like to thank Professor Edward Carter, Brigham Young University, who provided valuable research and writing assistance on this project.
Effective May 17, 2017, Vermont adopted a shield law for the first time, reversing a trend in Vermont Supreme Court cases that was eroding the rights of journalists. On February 16, 2018, the Washington Unit of the Vermont Superior Court applied the newly enacted law to the state’s request for a television station’s unedited video recordings of a police standoff with a suspected bank robber that resulted in the fatal shooting of the suspect. In re VSP-TK / 1-16-18 Shooting, No. 1-1-18 Wncm (Vt. Super. Ct. Wash. Unit Feb. 16, 2018), http://media.graytvinc.com/documents/OriginalRuling.PDF. Applying the Vermont Shield Law’s qualified privilege for non-confidential information to the facts before it, the trial court quashed the subpoena issued in connection with a criminal inquest. Id. at *8. This was the first court decision interpreting the Vermont Shield Law since its enactment, but the trial court, on its own initiative, sealed the decision. Id. The television station involved filed a motion to unseal the decision, which was denied. The television station appealed, and the Vermont Supreme Court reversed the decision, ordering that the February 16, 2018 decision be unsealed. See In re Vsp-Tk/1-16-18 Shooting Gray TV, -- A.3d --, 2019 VT 47 (July 19, 2019).
Accordingly, the majority of the available case law pre-dates the statutory shield law and provides general guidelines for contesting news media subpoenas pursuant to Vermont’s Rules of Civil Procedure and Vermont jurisprudence construing the United States and Vermont Constitutions and Vermont common law.
Virginia does not have a shield law, but courts recognize a reporter’s privilege based on the First Amendment to the U.S. Constitution. A court faced with a claim of privilege must perform a balancing test, taking into account (1) whether the information sought in the subpoena is relevant, (2) whether the information can be obtained by alternative means, and (3) whether there is a compelling interest in the information. There is only one case from the Supreme Court of Virginia applying the privilege, so lower courts and federal courts in Virginia frequently cite to federal precedent to determine whether the privilege applies in a specific case.
Washington State's courts have recognized, under the state's common law, a qualified confidential source privilege in both criminal and civil actions. In the modern (post-Branzburg era) the state's appellate courts have issued only three published decisions regarding reporter's privilege: Senear v. Daily Journal-American, 97 Wn.2d 148, 641 P.2d 1180 (1982) ("Senear"); Clampitt v. Thurston County, 98 Wn.2d 638, 658 P.2d 641 (1983) ("Clampitt"); and State v. Rinaldo, 102 Wn.2d 749, 689 P.2d 392 (1984) ("Rinaldo"). Only these three decisions have precedential authority in Washington courts. RCW 2.06.040; RAP 10.4(h).
The state has no published court decisions on the non-confidential journalist's privilege but would likely follow federal decisions applying a First Amendment qualified privilege.
Like "the curious incident of the dog in the night-time" in Sir Arthur Conan Doyle's 1892 story Silver Blaze, observers may well wonder why the state's judicial dogs have not barked since 1984. Perhaps, as Sherlock Holmes deduced, there was nothing to bark at -- and that, in effect, the reporter's privilege is so well-entrenched that there have been few efforts to breach it.
In April 2007, the State finally enacted a shield law.
Generally speaking, the status of the reporter's privilege in West Virginia is strong. Although the contours of the privilege may not be as developed through caselaw as in other states, the Supreme Court of Appeals of West Virginia has fashioned a strong privilege to protect reporters, especially in civil cases. Because of the strength of the privilege, incidences of reporters being jailed or fined over privilege issues are exceedingly rare in West Virginia.
In 2010, Wisconsin enacted a shield law protecting confidential sources and newsgathering materials. The act, codified at section 885.14 of the Wisconsin Statutes, provides journalists with an absolute privilege to withhold confidential source information and a qualified privilege to protect other newsgathering information. There have been no published state court decisions interpreting the shield law.
Anecdotal evidence indicates that few subpoenas are issued to news organizations in Wyoming. The subpoenas that have been issued usually ask the reporter to testify that his or her story is accurate. The infrequent use of subpoenas on news organizations may explain why the state has never enacted a shield law, or why there is no case law from the Wyoming Supreme Court, the state’s only appellate court, regarding the service of subpoenas on news organizations. The only known case in Wyoming where a news organization moved to quash a subpoena took place in the U.S. District Court for the District of Wyoming. The court denied the motion to quash, and the decision was not appealed to the Tenth Circuit Court of Appeals. Order on Appeal from Magistrate's Order, Wilson v. Amoco, Docket No. 96-CV-0124-B (D. Wyo. filed April 8, 1998). A state court is likely to look to federal law in any motion to quash a subpoena served on the news media because Wyoming does not have a shield law and has little case law regarding the state constitutional declaration of the right to freedom of speech and of the press.
No Wyoming journalist is known to have been fined or jailed for failing to comply with a subpoena.