A. Shield law statute

The South Carolina General Assembly adopted a shield law as Act No. 138 of 1993. The Act became effective upon the signature of the governor on June 14, 1993. The enactment is codified as S.C. Code Ann. §19-11-100 (Supp. 2001) and provides:

(A) A person, company, or entity engaged in or that has been engaged in the gathering and dissemination of news for the public through a newspaper, book, magazine, radio, television, news or wire service, or other medium has a qualified privilege against disclosure of any information, document, or item obtained or prepared in the gathering or dissemination of news in any judicial, legislative, or administrative proceeding in which the compelled disclosure is sought and where the one asserting the privilege is not a party in interest to the proceeding.

(B) The person, company, or other entity may not be compelled to disclose any information or document or produce any item obtained or prepared in the gathering or dissemination of news unless the party seeking to compel the production or testimony establishes by clear and convincing evidence that this privilege has been knowingly waived or that the testimony or production sought:

(1) is material and relevant to the controversy for which the testimony or production is sought;

(2) cannot be reasonably obtained by alternative means; and,

(3) is necessary to the proper preparation or presentation of the case of a party seeking the information, document, or item.

(C) Publication of any information, document, or item obtained in the gathering and dissemination of news does not constitute a waiver of the qualified privilege against compelled disclosure provided for in this section.

The push for a shield law grew out of a federal court prosecutions of members of the state's General Assembly for corruption. The U.S. Attorney called four reporters to the stand in the trial of a state senator. When each reporter declined to testify the court held them in contempt and confined them over the course of three days until the government withdrew the subpoenas. The contempt citations were appealed to the Fourth Circuit and resulted in a majority opinion which declined to recognize a privilege in the absence of bad faith on the part of the government. A concurring judge rejected the majority's rationale and characterized it as "a one-dimensional look at a two-dimensional problem." In re Shain, 978 F.2d 850 (4th Cir. 1992).

The shield law is not generally known to the bench and bar, and each subpoena directed at a reporter or news organization is in the first instance an educational exercise. Many lawyers and some judges are incredulous that the legislature would impose such a barrier to the quest for evidence. There have been no efforts since 1993 to amend the law.