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II. Authority for and source of the right

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  • 10th Circuit

    The Tenth Circuit first formally recognized and adopted the reporter's privilege under the First Amendment following the Supreme Court's ruling in Branzburg v. Hayes, 408 U.S. 665 (1972). As a result of the Branzburg decision, the Tenth Circuit affords newsgatherers a qualified privilege under the First Amendment against revealing news sources and confidential information. See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977).  Lower court cases within the Tenth Circuit have extended the privilege to other unpublished information, including non-confidential material, and to published information.

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  • 1st Circuit

    The qualified reporter’s privilege has primarily developed in the First Circuit post-BranzburgSee Branzburg v. Hayes, 408 U.S. 665 (1972).  The privilege is grounded in First Amendment concerns rather than federal common law.

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  • 2nd Circuit

    The reporter's privilege in the Second Circuit was developed before Branzburg v. Hayes. The most influential pre-Branzburg case in the Second Circuit was Garland v. Torre, 259 F.2d 545 (2d Cir.), cert. denied, 358 U.S. 910 (1958). In Garland, the Second Circuit developed a three-part test regarding disclosure of both confidential and non-confidential information: a litigant must make a clear and specific showing that the information sought is (1) highly material and relevant to the underlying claim; (2) necessary or critical to maintenance of the claim (the "heart of the claim" requirement); and (3) unavailable from alternative sources (the "exhaustion" requirement).

    The Garland test still applies in the Second Circuit and some other jurisdictions (See 23 Wright & Miller, Federal Practice & Procedure §5426 at 788 and n. 41 (noting that the Third Circuit, Fourth Circuit, Ninth Circuit, D.C. Circuit, District Court of Nevada, and other courts have adopted the Garland test)) when the subpoenaing party in a civil or criminal case seeks confidential information. United States v. Burke, 700 F.2d 70 (2d Cir), cert. denied, 464 U.S. 816 (1983). The Burke court derived this test from the post-Branzburg cases Baker v. F & F Investment, 470 F.2d 778, 783-85 (2d Cir.), aff'g 339 F. Supp. 942 (S.D.N.Y. 1972), cert. denied, 411 U.S. 966 (1973) and In re Petroleum Products Antitrust Litigation, 680 F.2d 5, 7-8 (2d Cir. 1982) (per curiam). To compel disclosure of non-confidential information, litigants must demonstrate that the information is: "(1) of likely relevance; (2) to a significant issue in the case; and (3) is not reasonably obtainable from other available sources." Gonzales v. National Broadcasting Co., 194 F.3d 29, 36 (2d Cir. 1999).

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  • 3rd Circuit

    The Third Circuit recognized a qualified reporter's privilege derived from the First Amendment in Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979). Expressly relying on Branzburg v. Hayes, 408 U.S. 665 (1972), the Court of Appeals cited Federal Rule of Evidence 501 and the First Amendment as the sources of, respectively, its authority to recognize the privilege and the privilege's contours, although it also described the privilege as arising under "federal common law." Riley, 612 F.2d at 714-15; see also, e.g., United States v. Criden, 633 F.2d 346, 356 (3d Cir. 1981) (privilege is "deeply rooted in the first amendment"); Parsons v. Watson, 778 F. Supp. 214, 216 (D. Del. 1991) (privilege "finds its roots" in Branzburg). The Third Circuit also has indicated that it may consider state law in evaluating a claim of privilege, even when its jurisdiction is based on a federal question. Riley, 612 F.2d at 715 ("In recognizing such privilege, we may consider also the applicable state law . . . .”); see also Downey v. Coalition Against Rape & Abuse, Inc., No. Civ. 99-3370 (JBS), 31 Media L. Rep. (BNA) 2582, 2003 WL 23164082, at *5 n.6 (D.N.J. Apr. 10, 2003) (considering both federal common law and state law policies when assessing assertion of privilege in action presenting both federal and state law claims and observing that "more emphasis on state law policy is appropriate . . . where the federal . . . claims . . . are notably weak”).

    By the same token, pursuant to Federal Rule Evidence 501, in diversity actions, courts in the Third Circuit are bound to apply the applicable state law of privilege. See, e.g., Steaks Unlimited, Inc. v. Deaner, 623 F.2d 264, 277 n.63 (3d Cir. 1980).

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  • 4th Circuit

    The reporter’s privilege in the Fourth Circuit was developed in the wake of the Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665 (1972). First the Eastern District of Virginia in Gilbert v. Allied Chemical Corp., 411 F. Supp. 505 (E.D. Va. 1976), and then the Fourth Circuit in United States v. Steelhammer, 539 F.2d 273 (4th Cir. 1976), rev’d en banc, 561 F.2d 539 (4th Cir. 1977), construed the limited holding of Branzburg as permitting a reporter’s privilege in some cases. Justice Powell’s concurrence in Branzburg, advocating a “balance of vital constitutional and societal interests,” provided the framework for the three-part test adopted by the Fourth Circuit in LaRouche v. National Broadcasting Co., 780 F.2d 1134, 12 Media L. Rep. 1585 (4th Cir. 1986), cert. denied, 479 U.S. 818 (1986): “(1) whether the information is relevant, (2) whether the information can be obtained by alternative means; and (3) whether there is a compelling interest in the information.” Id. at 1139.

    Though state shield laws are discussed in depth in the individual state sections, it should be noted here that four of the five states in the Fourth Circuit -- Maryland, North Carolina, South Carolina, and West Virginia -- have enacted shield laws that offer journalists varying degrees of protection for sources and information. See Md. Code Ann., Cts. & Jud. Proc. § 9-112 (1992); N.C. Gen. Stat. Ch. 8, Art. 7 § 8-53.11 (1999); S.C. Code § 19-11-100 (1995); W. Va. Code 57-3-10 (2011). All these shield laws were cited in Sterling as part of the Court’s review of “the policy decisions of the States” and how they bear on the question of whether federal courts should recognize a new privilege or amend coverage of an existing one.  United States v. Sterling, 724 F.3d 482 (4th Cir. 2013).  South Carolina’s shield law was raised as a defense to providing testimony in McCoy v. City of Columbia but the Court found that the reporter was not acting in her capacity as a news gathering journalist when she spoke with plaintiff in that case, and denied movant’s motion to quash defendant’s subpoena to testify.  McCoy v. City of Columbia, 2012 WL 2327785 *2 (D.S.C. June 19, 2012).

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  • 5th Circuit

    The Supreme Court's plurality decision in Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646 (1972), is the source of the law of the Fifth Circuit on the existence of a First Amendment qualified reporter's privilege. The law of the circuit depends heavily on the Fifth Circuit's narrow view of the holding in that case.

    In Miller v. Transamerican Press, Inc., a libel case and the first opinion to recognize the privilege in the Fifth Circuit, the court construed Branzburg to hold that, where a reporter faces compulsory process issued by a grand jury, the First Amendment provides only a right to be free from process intended to harass. 621 F.2d 721, 725, as modified, 628 F.2d 932 (5th Cir. 1980). The Fifth Circuit distinguished the balance of interests in civil libel cases, however, from that in grand jury proceedings. Id. at 725-26. Based on this distinction, Miller recognized a qualified First Amendment privilege for reporters in libel cases in which the plaintiff seeks to discover the reporter's confidential sources. Id. at 725.

    The Fifth Circuit later extended the qualified privilege recognized in Miller to confidential information sought in civil cases generally. In re Selcraig, 705 F.2d 789, 792 (5th Cir. 1983). In so doing, the court noted that its recognition of a qualified reporter's privilege in Miller "was dictated by our careful reading of the plurality and concurring opinions in Branzburg." Id.

    Finally, when considering a reporter's attempt to invoke the privilege to protect non-confidential information subpoenaed in a criminal trial, the Fifth Circuit disagreed with those circuits that have derived a broad, qualified privilege in criminal cases from Justice Powell's concurrence in Branzburg. United States v. Smith, 135 F.3d 963, 969 (5th Cir. 1998). Rather, the Smith court noted that Branzburg "explicitly rejected a qualified news reporters' privilege shielding confidential source information from grand juries," id., and that Justice Powell's concurrence merely "had in mind the 'harassment of newsmen.'" Id. (quoting Branzburg, 408 U.S. at 709, 92 S. Ct. at 2671 (Powell, J., concurring)). The Fifth Circuit then equated the interests surrounding grand jury proceedings to those that arise in criminal trials. Id. at 971. As such, the Fifth Circuit in Smith held that no First Amendment qualified privilege exists for non-confidential information sought in criminal cases generally. Id. at 972.

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  • 6th Circuit

    Courts recognizing the privilege derive it from the First Amendment. However, the most recent Court of Appeals case discussed the privilege in terms of the commercial speech doctrine, rather than the traditional First Amendment analysis based on the U.S. Supreme Court case, Branzburg v. Hayes. See NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998). The 6th Circuit Court of Appeals has rejected the theory that a privilege exists under the First Amendment for criminal cases, but this language has been dismissed as dictum in later district court cases. See In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987); Southwell v. Southern Poverty Law Center, 949 F. Supp. 1303 (W.D. Mich. 1996).

    More recent district court decisions have found no First Amendment privilege in criminal or civil cases. See Lentz v. City of Cleveland, 410 F. Supp. 2d 673 (N.D. Ohio 2006); Hade v. City of Fremont, 233 F. Supp. 2d 884 (N.D. Ohio 2002) (criticizing Southwell's dismissal of In re Grand Jury Proceedings' language as dicta and finding no privilege in criminal or civil cases); In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003).

    Three district courts quashed demands for reporter’s materials under the federal rules of civil procedure governing discovery because they were not substantially relevant to the elements of the plaintiffs’ claims. See Omokehinde v. Detroit Bd. of Educ., 251 F.R.D. 261 2007 WL 4357794 (E.D. Mich., Dec. 13, 2007); Johnson v. Metropolitan Government of Nashville and Davidson County, No. 3:07-0979, 2009 WL 819490 (M.D. Tenn., Mar. 27, 2009); L.W. v. Knox County Bd. of Educ., No. 3:05-CV-274, 2008 WL 82000736, Media L. Rep. 1721 (E.D. Tenn., March 25, 2008).

    The Sixth Circuit has held that a reporter can invoke the Fifth Amendment when ordered to reveal sources if the receipt of the information is illegal under various federal statutes that criminalize the unauthorized disclosure and receipt of confidential government documents and information. Convertino v. U.S. Dept. of Justice, 795 F.3d 587, 43 Media L. Rep. 2298 (6th Cir. 2015).

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  • 7th Circuit

    No reported cases discuss the reporters' privilege prior to Branzburg.

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  • 8th Circuit

    The Cervantes case was decided shortly after the Supreme Court's decision in Branzburg v. Hayes, 407 U.S. 665 (1972). Cervantes interpreted Branzburg to rule out the privilege in the grand jury context, but leave it an open question in other contexts. Cervantes treated the Branzburg decision as an anti-privilege case. However, the more common modern interpretation is to read Powell's concurrence in Branzburg (which provided the crucial fifth vote and approved of a reporter's privilege in other contexts) to establish a qualified reporter's privilege. Cervantes fails to mention the concurring opinion or any pro-privilege interpretation of Branzburg, except to quote some pro-privilege language from the opinion.

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  • 9th Circuit

    The Ninth Circuit developed a qualified privilege protecting reporters from compelled disclosure after the Supreme Court decided Branzburg v. Hayes, 408 U.S. 665 (1972). In Branzburg, the Supreme Court expressly rejected any privilege for reporters in the grand jury context and held that “whatever burden might result from requiring news gatherers to testify would not override the public interest in law enforcement and in ensuring effective grand jury proceedings.” Id. at 690. A reporter’s right to keep sources confidential in the Ninth Circuit depends upon whether the circumstances of a case mirror those in Branzburg.

    When the court finds that a case is sufficiently analogous to Branzburg, it refuses to allow journalists to invoke the reporter’s privilege. See, e.g., In re Grand Jury Proceedings (Scarce v. United States), 5 F.3d 397, 400 (9th Cir. 1993), cert. denied, 510 U.S. 1041 (1994) (affirming a district court’s ruling finding academic author in civil contempt for refusing to answer certain questions propounded to him by a federal grand jury); In re Lewis, 517 F. 2d 236, 238 (9th Cir. 1975) (affirming the contempt citation against a general manager of a radio station who refused to comply with a federal grand jury subpoena); In re Grand Jury Subpoena, No. 16-03-217, 875 F.3d 1179, 1188 (9th Cir. 2017) (affirming a district court’s enforcement of a subpoena to Glassdoor.com to identify potential witnesses to alleged fraud by a government contractor). However, when the court concludes that the facts are sufficiently distinct from Branzburg, it is more likely to find that the privilege applies. See, e.g., Bursey v. United States, 466 F.2d 1059, 1088 (9th Cir. 1972) (reversing a district court’s contempt order against members of the Black Panther Party who refused to answer questions during a grand jury proceeding because there was no substantial connection between the information sought and the criminal conduct being investigated, and holding that the “substantial connection” test was consistent with Branzburg), superseded on other grounds by statute, as recognized in In re Grand Jury Proceedings (Doe v. United States), 863 F.2d 667 (9th Cir. 1988).

    In cases that do not involve grand jury proceedings, the Ninth Circuit relies on Justice Powell’s concurrence in Branzburg and recognizes a qualified privilege for reporters. See Farr v. Pitchess, 522 F.2d 464, 468-69 (9th Cir. 1975), cert. denied, 427 U.S. 912 (1976). This qualified privilege requires that the claimed First Amendment privilege and the opposing need for disclosure be weighed in light of the surrounding facts and a balance struck to determine where lies the paramount interest. See id. at 468; Dillon v. City & Cty. of San Francisco, 748 F. Supp. 722 (N.D. Cal. 1990) (denying a cameraman’s motion to quash because his personal observations were not privileged).

    Other sources:

    1. Justice Department Guidelines (28 C.F.R. § 50.10)

    28 C.F.R. § 50.10 establishes the Department of Justice’s policy regarding issuance of subpoenas to members of the news media. Section 50.10 begins by declaring the overarching principle that “[b]ecause freedom of the press can be no broader than the freedom of members of the news media to investigate and report the news, the Department’s policy is intended to provide protection to members of the news media from certain law enforcement tools, whether criminal or civil, that might unreasonably impair newsgathering activities.” Section 50.10(a) calls on the Department to “strike the proper balance among several vital interests: Protecting national security, ensuring public safety, promoting effective law enforcement and the fair administration of justice, and safeguarding the essential role of the free press in fostering government accountability and an open society.” It goes on to state that “[t]he Department views the use of certain law enforcement tools, including subpoenas, court orders . . . , and search warrants to seek information from, or records of, non-consenting members of the news media as extraordinary measures, not standard investigatory practices.”

    Under the guidelines: (i) subpoenas, certain court orders, and search warrants to seek information from the news media can be used only “when the information sought is essential to a successful investigation, prosecution, or litigation” and “after all reasonable alternative attempts have been made to obtain the information from alternative sources” (id. § 50.10(a)(3)); and (ii) “[i]n criminal matters, there should be reasonable grounds to believe, based on public information, or information from non-media sources, that a crime has occurred, and that the information sought is essential to a successful investigation or prosecution” (id. § 50.10(c)(4)(ii)(A)).

    Courts have held, however, that failure to fulfill the requirements of § 50.10 is not an independent ground for quashing a journalist subpoena. See, e.g., United States v. Schneider, 2003 U.S. Dist. LEXIS 27324, at *11 (N.D. Cal. Nov. 18, 2003) (“The government’s failure to abide by DOJ’s regulations is not an independent ground for quashing a subpoena.”); see also In re Grand Jury Subpoenas to Fainaru-Wada & Williams, 438 F. Supp. 2d 1111, 1121 n.9 (N.D. Cal. 2006) (noting that the regulations “do not provide Movants with any enforceable rights”).

    2. Common Law

    Jaffee v. Redmond, 518 U.S. 1 (1996), arguably compels recognition of a common-law reporter’s privilege under Rule 501 of the Federal Rules of Evidence, which provides that the common law generally covers a claim of privilege. See In re Grand Jury Subpoena to Judith Miller, 438 F.3d 1141, 1166 (D.C. Cir. 2005), cert. denied, 125 S. Ct. 2977 (2005); id. at 1170-72 (Tatel, J., concurring) (applying Jaffee to find the existence of a common-law reporter’s privilege); see also N.Y. Times Co. v. Gonzales, 459 F.3d 160, 181 (2d Cir. 2006) (Sack, J., dissenting) (“I have no doubt that there has been developed in [the last] thirty-four years federal common-law protection for journalists’ sources under [Rule 501] as interpreted by Jaffee.”). Rule 501 expressly empowers the federal courts to recognize and elucidate privileges “in the light of reason and experience.” Fed. R. Evid. 501. In Jaffee, the Court applied Rule 501 to recognize a psychotherapist-patient privilege, articulating three closely interrelated factors to decide whether particular privileges should be recognized: (1) whether such a privilege is widely recognized by the states, (2) whether the proposed privilege serves significant public and private interests, and (3) whether recognition of those interests outweighs the burden on truth-seeking that might be imposed by the privilege. See 518 U.S. 1. Since Branzburg, an overwhelming majority of jurisdictions have adopted a reporter’s privilege through statute or judicial decision (or both). Nevertheless, courts in the Ninth Circuit so far have chosen not to recognize a common-law reporter’s privilege. In re Grand Jury Subpoena (Wolf v. United States), 201 Fed. App’x 430, 433 (9th Cir. 2006); In re Grand Jury Subpoenas to Fainaru-Wada & Williams, 438 F. Supp. 2d 1111, 1118-19 (N.D. Cal. 2006); see also Scarce, 5 F.3d at 402 (rejecting related claim of a “scholar’s privilege” as a matter of common law).

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  • Alaska

    Alaska's appellate courts have not had occasion to rule definitively on the existence or scope of a news reporter's privilege. The privilege has been asserted, and acknowledged, in a number of trial court cases, and in virtually all of these, the press interest has been represented by the author of this outline. There is no explicit reference to a reporter's privilege in the Alaska Constitution. There are several Alaska Supreme Court opinions interpreting Alaska's analogue to the First Amendment, Article I, section 5, of the state constitution, as providing greater protection for freedom of expression than its federal counterpart, though never in this context. The state constitution, therefore, should always be cited as an alternate basis for the privilege to preserve this issue. There is a state statute that addresses a reporter's privilege, see AS 09.25.300 - 390, and through Evidence Rule 501, court rules recognize and implement this and other statutory privileges. This statute was enacted in 1967, as an express change in court rules, to create an evidentiary privilege for “newspapermen.” Allred v. State, 554 P.2d 411, 415 (Alaska 1976). The focus on Allred was a psychotherapist-patient privilege, and a statute relating to this passed the same year as the reporter’s privilege statute.  In comparing the two, a dissenting opinion in Allred noted that the reporter’s privilege statute’s provisions “do not prohibit a reporter from revealing the source of information and is limited to regulating the procedure under which a court is to determine whether to require the reporter to testify. While some aspects of the statute create a substantive right of the reporter, the provisions weigh heavily on the procedural rather than the substantive side” of the line distinguishing these. Id. at 423-424. The statute's substantive provisions do not provide particularly strong protection, but it contains some useful procedural provisions and should be cited for this reason. While the statute is sometimes noted, the principal source of legal authority that has been relied upon in asserting, and recognizing, a privilege in Alaska courts to date has been the qualified constitutional privilege under the First Amendment recognized by the majority in Branzburg, and subsequent cases.

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  • Arkansas

    The privilege afforded to reporters under Arkansas law from having to reveal their confidential sources is a matter of statute, and, as three circuit courts have concluded, a right existing under Article 2, Section 6 of the Arkansas Constitution as well as the First Amendment to the Constitution of the United States. See Ark. Code Ann. § 16-85-510; State v. Bernard, No. 94-2133 (Cir. Ct. of Pulaski County, Ark. filed Feb. 21, 1995); First Commercial Trust v. Aldridge, No. 94-3006 (Cir. Ct. of Pulaski County, Ark. filed Dec. 12, 1994); State v. Echols, No. CR 93-450A (Cir. Ct. of Craighead County, Ark. filed Mar. 11, 1994); see also Philip S. Anderson, The Reporter's Privilege in Arkansas: An Overview With Commentary, 29 U. Ark. Little Rock L. Rev. 1, 7–11 (2006); but see Susan Webber Wright, A Trial Judge's Ruminations on the Reporter's Privilege, 29 U. Ark. Little Rock L. Rev. 103, 115–17 (2006).

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  • Colorado

    The source for the Shield Law protections in Colorado are found in C.R.S. § 13-90-119, which grants a qualified privilege protecting newspersons from subpoenas in judicial proceedings. See also, C.R.S. §§ 24-72.5-101 through 106 (qualified privilege to newspersons in administrative proceedings), addressed more fully at Section II D. The privilege created by the Shield Law are similar to those at common law. In order to trump the privilege, the information sought must be a) integral to the case; b) not available from any alternative source; and c) the need for the information outweighs the prevailing First Amendment interest. Before the Colorado legislature's enactment of the Shield Law protections in 1990, many state trial courts had acknowledged the existence of a common law privilege. See, e.g., Jones v. Woodward, 15 Media L. Rep. 2060 (Denver Dist. Ct. 1988) (using qualified privilege to grant reporter's motion to quash subpoena). However, the state appellate courts had weighed in on the privilege issue, asserting there was no privilege under the Colorado constitution. See Pankratz v. District Court, 609 P.2d 1101 (Colo. 1980) (a reporter must testify before a grand jury because he was the only witness to criminal conduct); Gagnon v. District Court In & For Cty. of Freemont, 632 P.2d 567 (Colo. 1981) (defendant/reporter required to provide confidential source and documents in defamation action because information was "clearly relevant").

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  • Delaware

    Although Delaware's reporters' privilege has developed largely from the common law, the reporters' privilege is now codified in the Delaware Reporters' Privilege Act. The state has developed its privilege by drawing from the Supreme Court's decision in Branzburg and other federal First Amendment jurisprudence, the state's constitution, and state common law.

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  • District of Columbia

    In 1992, the District of Columbia’s City Council enacted (with Congress’s approval) the Free Flow of Information Act, D.C. Code §§ 16-4701 et seq.  (Under the District’s Home Rule Act, the Council may pass legislation for the District with certain exceptions; an act of the Council becomes effective if Congress does not pass a joint resolution disapproving of the act within a specified time period, generally 30 or 60 days.  D.C. Code §§ 1-204.04, 1-206.02.)

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  • Illinois

    Illinois courts recognize that a reporter has a right not to disclose his/her sources of information under a statute called the reporter’s privilege statute, set out in 735 ILCS 5/8-901 to 8-909. Courts typically base their opinions on the wording contained in the Statute, but they recognize that the Statute stems from the First Amendment to the United States Constitution and the standard set out by the United States Supreme Court in Branzburg v. Hayes, 408 U.S. 665 (1972) (upholding the freedom of state legislatures to fashion their own standards with respect to journalists’ privilege).

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  • Iowa

    Iowa has not adopted a shield law statute. Authority for the reporter's privilege in Iowa is based upon the First Amendment to the United States Constitution and Article I, § 7, of the Iowa Constitution. Winegard v. Oxberger, 258 N.W.2d 847, 3 Med. L. Rptr. 1326 (Iowa 1977). Iowa decisions rely heavily on Branzburg v. Hayes, 408 U.S. 665, 1 Med. L. Rptr. 2617 (1972), Garland v. Torre, 259 F.2d 545, 1 Med. L. Rptr. 2541 (2d Cir. 1958), cert. denied, 358 U.S. 910 (1958), and In re Farber, 78 N.J. 259, 394 A.2d 330, 4 Med. L. Rptr. 1360 (N.J. 1978), cert. denied 439 U.S. 997 (1978).

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  • Michigan

    As discussed in the Foreword, in Michigan the Reporter's privilege is created by case law although there are two statutes which limit subpoenas on reporters for grand jury proceedings and Prosecutor's Investigatory subpoenas.

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  • Nebraska

    Shield law protection in Nebraska derives from the statutes. The Nebraska courts have not recognized any form of reporter's privilege under the State Constitution. No reported state appellate decisions have addressed either a First Amendment privilege or the Branzburg standard.

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  • New Hampshire

    The qualified privilege is based on Part I, Article 22 of the New Hampshire Constitution.

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  • New Jersey

    New Jersey's privilege is purely statutory. Although the state constitution also includes a strong free press provision the courts have never found a reporter's privilege originating in the state constitution

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  • North Dakota

    North Dakota has codified the reporter's privilege in N.D.C.C. § 31-01-06.2. 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 court recognized that other jurisdictions have recognized Branzburg v. Hayes, 408 U.S.665 (1972) as conferring a First Amendment privilege on news gatherers. As a response to the Branzburg decision, the North Dakota legislature adopted section 31-01-06.2.

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  • Oklahoma

    The Oklahoma Supreme Court has treated Branzburg as recognizing a qualified First Amendment privilege.  Taylor v. Miskovsky, 1981 OK 143, 640 P.2d 959.  The Tenth Circuit, of which Oklahoma is a part, has utilized a tripartite balancing test to determine whether a constitutional privilege applies.  Silkwood v. Kerr-McGee, 563 F.2d 433 (10th Cir. 1977).  Oklahoma also has a qualified statutory privilege.

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  • Oregon

    The primary source for the reporter's privilege in Oregon is ORS 44.510-540.

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  • Tennessee

    Tennessee has a shield law that protects journalists' sources and all other information gathered for publication or broadcast, whether obtained confidentially or not, and whether published or not. See Tenn. Code Ann. § 24-1-208. The shield law was enacted in 1974, in the wake of the 1972 U.S. Supreme Court decision in Branzburg v. Hayes. Cases under the statute have focused on the shield law's broad protection and have not addressed whether a privilege is also available by way of the state or federal constitutions.

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  • Texas

    was signed by Governor Rick Perry that day and became effectively immediately. The law is now codified at Texas Civil Practice & Remedies Code §§22.021-22.027 and Texas Code of Criminal Procedure arts. 38.11 and 38.111. Prior to the passage of the shield law, advocates of a reporter’s privilege and Texas courts looked to the First Amendment to the United States Constitution, and, specifically, to the Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), and cases following Branzburg in the federal circuits, to find the basis of a reporter's privilege. See, e.g., Holland v. Centennial Homes, Inc., No. 3:92-CV-1533-T, 3:92-CV-1534-T, 1993 U.S. Dist. LEXIS 21624, 22 Med. L. Rptr. 2270 (N.D. Tex. Dec. 21, 1993); but see State ex rel. Healey v. McMeans, 884 S.W.2d 772 (Tex. Crim. App 1994) (en banc) (“[N]ewsmen have no constitutional privilege, qualified or otherwise, to withhold evidence relevant to a pending criminal prosecution.”). Additionally, some support for such a privilege was also found in Article I, §8 of the Texas Constitution. See Channel Two Television v. Dickerson, 725 S.W.2d 470 (Tex. App.—Houston [1st Dist.] 1987). In that case, the appellate court found that a reporter's privilege existed based on the Texas Constitution. The court applied the three-part test of Justice Powell’s concurrence in Branzburg, holding that a party seeking materials or testimony must show that it is:

    (1) highly material and relevant;

    (2) necessary or critical to the maintenance of the claim; and

    (3) not obtainable from other sources.

    Channel Two, 725 S.W.2d at 472 (format added).

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  • Utah

    Neither the Utah Constitution nor the Utah Code explicitly recognizes a reporter’s privilege. However, in January 2008, the Utah Supreme Court adopted Utah Rule of Evidence 509, which creates a privilege for reporters. Utah appellate courts have yet to apply this rule, although prior to this rule, both the Utah Supreme Court and the Utah Court of Appeals mentioned in dicta the existence of some form of newsgathering protection based on Branzburg v. Hayes, 408 U.S. 665 (1972). See Redding v. Jacobsen, 638 P.2d 503 (Utah 1981); State v. Krueger, 975 P.2d 489 (Utah Ct. App. 1999). Various Utah trial courts and the U.S. District Court for the District of Utah also found a qualified First Amendment privilege based not only on Branzburg but also Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977).  See, e.g., Bottomly v. Leucadia Nat'l Corp., 24 Med. L. Rep. 2118, 1996 U.S. Dist. LEXIS 14760 (D. Utah July 2, 1996); see also Wood v. Farmington City, No. 2:10-CV-933-DB-PMW, 2011 WL 5834430, at *2 (D. Utah Nov. 21, 2011) (recognizing reporter’s privilege and applying Silkwood factors without reference to Rule 509).

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  • Virginia

    Virginia does not have a shield law, but courts recognize a reporter's privilege based on the First Amendment to the U.S. Constitution.  The privilege has been limited in recent cases, particularly by the Fourth Circuit and federal courts in Virginia, and in criminal cases.

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  • West Virginia

    The Supreme Court of Appeals of West Virginia has held that a reporter is entitled to a qualified privilege when engaged in the news-gathering function. This qualified privilege was articulated first in State ex rel. Hudok v. Henry, 182 W.Va. 500, 389 S.E.2d 188 (W.Va. 1990). The state Supreme Court delineated a balancing test for application of the reporter's privilege. The source for the privilege was found in the United States Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), and in the First Amendment to the United States Constitution.

    In 2011, the West Virginia Legislature enacted a “Reporter’s Privilege” statute.  W.Va. Code § 57-3-10.  That statute expanded the earlier application of the reporter’s privilege insofar as the compelled identification of confidential sources is concerned and also specifically left in place the more broadly applied reporter’s qualified privilege protections as stated in Hudok.

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