State shield statutes & leading cases

Tuesday, March 8, 2011

Today, 39 states and the District of Columbia have shield laws. Courts have provided varying levels of protection in the other states.

Alabama
Alabama’s shield law provides an absolute privilege to journalists working in the fields specified by the statute.

Code of Alabama
Sec. 12-21-142. Journalist source privilege
“No person engaged in, connected with or employed on any newspaper, radio broadcasting station or television station, while engaged in a news-gathering capacity, shall be compelled to disclose in any legal proceeding or trial, before any court or before a grand jury of any court, before the presiding officer of any tribunal or his agent or agents or before any committee of the Legislature or elsewhere the sources of any information procured or obtained by him and published in the newspaper, broadcast by any broadcasting station, or televised by any television station on which he is engaged, connected with or employed.”

Cases
No reported state cases. The 11th Circuit looked at the Alabama shield law in 2005 and declared it to grant an absolute privilege. Price v. Time, Inc., No. 04-13027 (11th Cir. 2005).

Alaska
Alaska provides a qualified privilege, as there is a provision in the statute to challenge the privilege. The state courts have not directly addressed the scope of the privilege.

Alaska Statutes
Sec. 09.25.300. Claiming of privilege by public official or reporter
“Except as provided in AS 09.25.300 — 09.25.390, a public official or reporter may not be compelled to disclose the source of information procured or obtained while acting in the course of duties as a public official or reporter.”

Cases
No reported cases.

Arizona
Arizona provides an absolute privilege only when there is a confidential relationship; otherwise it is a qualified privilege. The privilege applies in all cases, civil and criminal.

Arizona Revised Statutes
Sec. 12-2237. Reporter and informant
“A person engaged in newspaper, radio, television or reportorial work, or connected with or employed by a newspaper, radio or television station, shall not be compelled to testify or disclose in a legal proceeding or trial or any proceeding whatever, or before any jury, inquisitorial body or commission, or before a committee of the legislature, or elsewhere, the source of information procured or obtained by him for publication in a newspaper or for broadcasting over a radio or television station with which he was associated or by which he is employed.”

Sec. 12-2214. Requirements for subpoena of media witnesses
“A. A subpoena for the attendance of a witness or for production of documentary evidence issued in a civil or criminal proceeding and directed to a person engaged in gathering, reporting, writing, editing, publishing or broadcasting news to the public, and which relates to matters within these news activities, shall have attached to it an affidavit of a person with a direct interest in the matters sought which states all of the following:

“1. Each item of documentary and evidentiary information sought from the person subpoenaed.

“2. That the affiant or his representative has attempted to obtain each item of information from all other available sources, specifying which items the affiant has been unable to obtain.

“3. The identity of the other sources from which the affiant or his representative has attempted to obtain the information.

“4. That the information sought is relevant and material to the affiant’s cause of action or defense.

“5. That the information sought is not protected by any lawful privilege.

“6. That the subpoena is not intended to interfere with the gathering, writing, editing, publishing, broadcasting and disseminating of news to the public as protected by the first amendment, Constitution of the United States, or by article II, section 6, Constitution of Arizona.”

Cases
Bartlett v. Superior Court, 150 Ariz. 178, 182 (Az. App. 1986). “The claim of privilege depends, in the first instance, upon the existence of a confidential relationship such that compliance with a subpoena would either result in disclosure of confidential information or sources or would seriously interfere with the news gathering and editorial process.”

Arkansas
Arkansas statute provides a qualified privilege in civil and criminal cases.

Arkansas Code
Sec. 16-85-510. Disclosure of media sources
“Before any editor, reporter, or other writer for any newspaper, periodical, radio station, television station, or Internet news source, or publisher of any newspaper, periodical, or Internet news source, or manager or owner of any radio station shall be required to disclose to any grand jury or to any other authority the source of information used as the basis for any article he or she may have written, published, or broadcast, it must be shown that the article was written, published, or broadcast in bad faith, with malice, and not in the interest of the public welfare.”

Cases
Saxton v. Arkansas Gazette Co., 264 Ark. 133, 136 (Ark. 1978). “The Act contains various provisions dealing with the administration of justice in our courts which are applicable to both criminal and civil proceedings. Further, the use of the words ‘to any other authority’ in this section of the Act clearly indicates that the privilege asserted here is applicable to civil proceedings.” (“The Act” refers to Sec. 15 of Initiated Act No. 3 of 1936, which is the origin of this statute.)

California
California statute provides a qualified privilege in criminal cases. However, the privilege in civil cases is absolute. The privilege covers all non-confidential and confidential information.

California Code
Sec. 1070. Newsman’s refusal to disclose news source
“(a) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, cannot be adjudged in contempt by a judicial, legislative, administrative body, or any other body having the power to issue subpoenas, for refusing to disclose, in any proceeding as defined in Section 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

“(b) Nor can a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

“(c) As used in this section, ‘unpublished information’ includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.”

Cases
Delaney v. Superior Court, 50 Cal. 3d 785, 805 (Cal. 1990).
New York Times Co. v. Superior Court, 51 Cal. 3d 453, 461 (Cal. 1990).

Colorado
Colorado statute provides a qualified privilege in civil and criminal cases. The privilege pertains to all information except that mentioned in the statute.

Colorado Revised Statutes
13-90-119. Privilege for newsperson
“(2) Notwithstanding any other provision of law to the contrary and except as provided in subsection (3) of this section, no newsperson shall, without such newsperson’s express consent, be compelled to disclose, be examined concerning refusal to disclose, be subjected to any legal presumption of any kind, or be cited, held in contempt, punished, or subjected to any sanction in any judicial proceedings for refusal to disclose any news information received, observed, procured, processed, prepared, written, or edited by a newsperson, while acting in the capacity of a newsperson; except that the privilege of nondisclosure shall not apply to the following:

“(a) News information received at a press conference;

“(b) News information which has actually been published or broadcast through a medium of mass communication;

“(c) News information based on a newsperson’s personal observation of the commission of a crime if substantially similar news information cannot reasonably be obtained by any other means;

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

Cases
Gordon v. Boyles, 9 P.3d 1106 (Colo. 2000)

Connecticut
Connecticut law provides a qualified privilege in civil and criminal cases. The privilege pertains to all information, non-confidential and confidential.

General Statutes of Connecticut

Sec. 52-146t. “Protection from compelled disclosure of information obtained by news media.

“(b) No judicial, executive or legislative body with the power to issue a subpoena or other compulsory process may compel the news media to testify concerning, or to produce or otherwise disclose, any information obtained or received, whether or not in confidence, by the news media in its capacity in gathering, receiving or processing information for potential communication to the public, or the identity of the source of any such information, or any information that would tend to identify the source of any such information, unless such judicial, executive or legislative body complies with the provisions of subsections (c) to (e), inclusive, of this section.”

Cases
Connecticut State Board of Labor Relations v. Fagin, 33 Conn. Supp. 204, 206-207 (1976). “The Second Circuit Court of Appeals, whose interpretations of federal constitutional provisions are binding upon this court, has recognized the limited constitutional privilege of a newsman to withhold confidential sources.”

Delaware
Delaware law provides a qualified reporters’ privilege in civil and criminal cases and pertains to confidential as well as non-confidential information.

Delaware Code
Sec. 4321. Privilege in nonadjudicative proceedings
“A reporter is privileged in a nonadjudicative proceeding to decline to testify concerning either the source or content of information that he obtained within the scope of his professional activities.”

Sec. 4322. Privilege in adjudicative proceedings
“A reporter is privileged in an adjudicative proceeding to decline to testify concerning the source or content of information that he or she obtained within the scope of his or her professional activities if the reporter states under oath that the disclosure of the information would violate an express or implied understanding with the source under which the information was originally obtained or would substantially hinder the reporter in the maintenance of existing source relationships or the development of new source relationships.”

Cases
State v. Rogers, 820 A.2d 1171, 1173 (Del. Super. Ct. 2003). “[T]he Court concludes that the Act governs all claims of privilege advanced by news reporters in this State, whether the privilege is invoked to protect the identity of confidential sources or the information obtained from known and identified sources.”

District of Columbia
The District of Columbia provides a qualified privilege in civil and criminal cases. The D.C. statute does however, provide an absolute privilege against compelled disclosure of sources of information.

District of Columbia Code
Sec. 16-4702. Compelled disclosure prohibited
“Except as provided in section 16-4703, no judicial, legislative, administrative, or other body with the power to issue a subpoena shall compel any person who is or has been employed by the news media in a news gathering or news disseminating capacity to disclose:

“(1) The source of any news or information procured by the person while employed by the news media and acting in an official news gathering capacity, whether or not the source has been promised confidentiality; or

“(2) Any news or information procured by the person while employed by the news media in the course of pursuing professional activities that is not itself communicated in the news media, including any:
(A) Notes;
(B) Outtakes;
(C) Photographs or photographic negatives;
(D) Video or sound tapes;
(E) Film; or
(F) Other data, irrespective of its nature, not itself communicated in the news media.”

Sec. 16-4703. Compelled disclosure permitted
“(a) A court may compel disclosure of news or information otherwise protected from disclosure under section 16-4702(2) if the court finds that the party seeking the news or information established by clear and convincing evidence that:

“(1) The news or information is relevant to a significant legal issue before a judicial, legislative, administrative, or other body that has the power to issue a subpoena;

“(2) The news or information could not, with due diligence, be obtained by any alternative means; and

“(3) There is an overriding public interest in the disclosure.

“(b) A court may not compel disclosure of the source of any information protected under section 16-4702.”

Cases
There have been no reported District of Columbia cases since the enactment of the law in 1992.

Florida
Florida law provides a qualified privilege in civil and criminal cases and pertains to confidential as well as non-confidential information.

Florida Statutes
Sec. 90.5015. Journalist’s privilege
“(2) PRIVILEGE. — A professional journalist has a qualified privilege not to be a witness concerning, and not to disclose the information, including the identity of any source, that the professional journalist has obtained while actively gathering news. This privilege applies only to information or eyewitness observations obtained within the normal scope of employment and does not apply to physical evidence, eyewitness observations, or visual or audio recording of crimes. A party seeking to overcome this privilege must make a clear and specific showing that:

“(a) The information is relevant and material to unresolved issues that have been raised in the proceeding for which the information is sought;

“(b) The information cannot be obtained from alternative sources; and

“(c) A compelling interest exists for requiring disclosure of the information.”

Cases
State v. Davis, 720 So. 2d 220, 227 (Fla. 1998). “[T]he qualified reporter’s privilege in Florida applies to factual situations involving both nonconfidential and confidential information.”

Georgia
Georgia law provides a qualified privilege in civil and criminal cases and pertains to confidential as well as non-confidential information.

Official Code of Georgia Annotated Sec. 24-9-30. Persons, companies, or other entities engaged in gathering or dissemination of news
“Any person, company, or other entity engaged in the gathering and dissemination of news for the public through a newspaper, book, magazine, or radio or television broadcast shall have a qualified privilege against disclosure of any information, document, or item obtained or prepared in the gathering or dissemination of news in any proceeding where the one asserting the privilege is not a party, unless it is shown that this privilege has been waived or that what is sought:

“(1) Is material and relevant;

“(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.”

Cases
In re Paul, 270 Ga. 680 (Ga. 1999).

Hawaii
On July 2, 2008, Hawaii Gov. Linda Lingle signed H.B. 2557, adding Hawaii to the list of states having shield laws enacted by statute. The new law provides a qualified privilege in civil and criminal cases and applies to confidential sources and information.

“SECTION 1. Chapter 621, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

“§621 — Limitation on compellable testimony from journalists and newscasters; exceptions. (a) A journalist or newscaster presently or previously employed by or otherwise professionally associated with any newspaper, magazine, news agency, press association, wire service, or radio or television transmission station or network shall not be required by a legislative, executive, or judicial officer or body, or any other authority having the power to compel testimony or the production of evidence, to disclose, by subpoena or otherwise:
(1) The source of any published or unpublished information obtained by the person in the course of gathering, receiving, or processing of information for communication to the public; or
(2) Any unpublished information obtained or prepared by the person in the course of gathering, receiving, or processing information for communication to the public.
(b) The limitation on compellable testimony established by this section may also be claimed by and afforded to any individual who can credibly establish that the individual has, with respect to the source or information sought, participated in the gathering, preparation, collection, photographing, recording, writing, editing, reporting, or publishing of news or information of substantial public interest for the purpose of dissemination to the general public by means of any tangible or electronic medium.

(1) Probable cause exists to believe that the person claiming the privilege has committed, is committing, or is about to commit a crime;
(2) The person claiming the privilege is a percipient witness to the alleged commission of a crime;
(3) The source consents to the disclosure; or
(4) In a non-criminal judicial matter, the party seeking to compel disclosure can show by clear and convincing evidence that the source or information sought is:
(A) Unavailable despite exhaustion of all reasonable alternative sources;
(B) Noncumulative; and
(C) Necessary and relevant to the claim or defense asserted.”

Cases
Appeal of Goodfader, 45 Haw. 317 (Haw. 1961). Found that there is no First Amendment right to refuse to answer questions respecting sources of information. (Decided before Branzburg v. Hayes. No other reported cases.)

Idaho
Idaho has no shield law but does recognize a qualified privilege. Though not stated specifically, the privilege appears to apply to confidential information.

Cases
In re Contempt of Wright, 108 Idaho 418, 422 (Idaho 1985). “To the extent that Caldero (a 1977 libel action appealed to the Idaho Supreme Court) holds that under no circumstances is there a qualified newsperson’s privilege in Idaho which is protected by the First Amendment of the U.S. Constitution, we decline to follow it as precedent. Since Caldero there has been an increasing recognition by federal and other state courts, as well as state legislatures which have passed “shield laws”, of the connection between freedom of the press and the public’s right to know. A careful balancing by the courts between a First Amendment privilege, and any interest asserted which may conflict with that privilege, will serve the parties and the public most appropriately.”

Illinois
Illinois law provides a qualified privilege in civil and criminal cases and pertains to confidential as well as non-confidential information.

Illinois Compiled Statutes
Sec. 735 ILCS 5/8-901. Source of information
“No court may compel any person to disclose the source of any information obtained by a reporter except as provided in Part 9 of Article VIII of this Act.”

Cases
People v. Pawlaczyk, 189 Ill. 2d 177 (Ill. 2000).

Indiana
Indiana law provides a qualified privilege in civil and criminal cases and pertains to confidential as well as non-confidential information. The statute provides for absolute protection of any source of information.

Indiana Statutes
Sec. 34-46-4-2. Privilege
“A person described in section 1 of this chapter shall not be compelled to disclose in any legal proceedings or elsewhere the source of any information procured or obtained in the course of the person’s employment or representation of a newspaper, periodical, press association, radio station, television station, or wire service, whether:

“(1) published or not published:

(A) in the newspaper or periodical; or

(B) by the press association or wire service; or

(2) broadcast or not broadcast by the radio station or television station;

by which the person is employed.”

Cases
No reported cases since statute was enacted on July 1, 1998.

Iowa
Iowa has no state shield law but does recognize a qualified privilege. Only confidential information is protected.

Cases
Winegard v. Oxberger, 258 N.W.2d 847, 850, (Iowa 1977). Recognized a “fundamental newsperson privilege” that is “not absolute or unlimited.”
Waterloo/Cedar Falls Courier v. Hawkeye Cmty. College, 646 N.W.2d 97, 102 (Iowa 2002). “The privilege protects confidential sources, unpublished information, and reporter’s notes.”

Kansas
Kansas Gov. Mark Parkinson signed a shield bill into law on April 15, 2010, which was to take effect on July 1 with publication in the Kansas Statute Book. The new law will give journalists limited protection against forced disclosure of confidential sources or information that hasn’t been published or broadcast.

The Associated Press reported that under the law “a journalist can be forced to comply with a subpoena only if a district court judge rules that the party seeking the information made a reasonable effort to obtain it some other way.”

Cases
State v. Sandstrom, 224 Kan. 573, 574, (Kan. 1978). “Newsperson has a limited privilege of confidentiality of information and identity of news sources.”

Kentucky
The Kentucky shield law provides absolute protection from disclosing a source’s identity. In all other cases, there is a qualified privilege.

Kentucky Revised Statutes
Sec. 421.100. Newspaper, radio or television broadcasting station personnel need not disclose source of information
“No person shall be compelled to disclose in any legal proceeding or trial before any court, or before any grand or petit jury, or before the presiding officer of any tribunal, or his agent or agents, or before the general assembly, or any committee thereof, or before any city or county legislative body, or any committee thereof, or elsewhere, the source of any information procured or obtained by him, and published in a newspaper or by a radio or television broadcasting station by which he is engaged or employed, or with which he is connected.”

Cases
Branzburg v. Pound, 461 S.W.2d 345, 347, (1971), grants a privilege from disclosing the source of the information but does not grant a privilege against disclosing the information itself.

Louisiana
The Louisiana shield law provides a qualified privilege in civil and criminal cases and applies to confidential as well as non-confidential information.

Louisiana Revised Statutes
Sec. 45:1452. Conditional privilege from compulsory disclosure of informant or source
“Except as hereinafter provided, no reporter shall be compelled to disclose in any administrative, judicial or legislative proceedings or anywhere else the identity of any informant or any source of information obtained by him from another person while acting as a reporter.”

Cases
In re Grand Jury Proceedings, 520 So. 2d 372, 374 (La. 1988).

Maine
On April 18, 2008, the governor of Maine signed H.P 1431, “An Act to Shield Journalists’ Confidential Sources.” The law provides a qualified privilege in civil and criminal cases and covers only confidential sources. The law took effect immediately.

Maine Revised Statutes Annotated
Sec. 1.16. MRSA §61

“1. Compelled disclosure prohibited. A judicial, legislative, administrative or other body with the power to issue a subpoena may not compel a journalist to testify about, produce or otherwise disclose or adjudge the journalist in contempt for refusal to testify about, produce or disclose:

“A. The identity of a confidential source of any information;

“B. Any information that could be used to identify a confidential source;

“C. Any information obtained or received in confidence by the journalist acting in the journalistic capacity of gathering, receiving, transcribing or processing news or information for potential dissemination to the public; or

“D. Data, including, but not limited to, notes, drafts, outtakes, photographs, video or sound tapes, film or other data of any sort in any medium.

“2. Exceptions allowing compelled disclosure. A court may compel disclosure of the identity of a source or information described in subsection 1 if the court finds, after the journalist has been provided notice and the opportunity to be heard, that the party seeking the identity of the source or the information has established by clear and convincing evidence:

“A. In a criminal investigation or prosecution, based on information obtained from a source other than the journalist, that there are reasonable grounds to believe that a crime has occurred;

“B. In a civil action or proceeding, based on information obtained from a source other than the journalist, that there is a prima facie cause of action; or

“C. In all matters, whether criminal or civil, that:

“(1) The identity of the source or the information is highly material and relevant;

“(2) The identity of the source or the information is critical or necessary to the maintenance of a party’s claim, defense or proof of an issue material to the claim or defense;

“(3) The identity of the source or the information is not obtainable from any alternative source; and

“(4) There is an overriding public interest in the disclosure.”

Maryland
Maryland’s shield law provides a qualified privilege in civil and criminal cases and covers confidential as well as non-confidential information.

Annotated Code of Maryland
Sec. 9-112. Privileged communications — News media

“(b) Persons affected. — The provisions of this section apply to any person who is, or has been, employed by the news media in any news gathering or news disseminating capacity.

“(c) Scope of privilege. — Except as provided in subsection (d) of this section, any judicial, legislative, or administrative body, or any body that has the power to issue subpoenas may not compel any person described in subsection (b) of this section to disclose:

“(1) The source of any news or information procured by the person while employed by the news media, whether or not the source has been promised confidentiality; or

“(2) Any news or information procured by the person while employed by the news media, in the course of pursuing professional activities, for communication to the public but which is not so communicated, in whole or in part, including:
(i) Notes;
(ii) Outtakes;
(iii) Photographs or photographic negatives;
(iv) Video and sound tapes;
(v) Film; and
(vi) Other data, irrespective of its nature, not itself disseminated in any manner to the public.”

Cases
Prince George’s County v. Hartley, 150 Md. App. 581, 601 (Md. App. 2003). First reported case since the statute was amended in 1988. “The legislature enacted Chapter 113 of the Acts of 1988, which is, in essence, the present Shield Law. It now protects both the source of any news or information, C.J. Sec. 9-112(c)(1), and the “news or information procured by the person while employed by the news media.”

Massachusetts
Massachusetts has no shield law but does recognize a qualified privilege for all cases.

Cases
Petition for the Promulgation of Rules Regarding the Protection of Confidential News Sources and Other Unpublished Information, 395 Mass. 164 (Mass. 1985). “The Governor’s Press Shield Law Task Force has petitioned this court to adopt rules providing for a qualified evidentiary privilege to protect news reporters and others from the forced disclosure of confidential sources and unpublished information … . After careful consideration of the issues presented by this petition, we conclude that, even if this court does have the power to do so, it should not be exercised in the present circumstances. Instead, we reaffirm our decision to consider the gradual development of law in this area through the case-by-case adjudication of the common law process … . This court has also noted that the method of case-by-case adjudication involves a balancing between the public interest in every person’s evidence and the public interest in protecting the free flow of information.”

Michigan
Michigan law provides for a qualified privilege in civil and criminal cases but is limited to confidential information.

Michigan Compiled Laws Service
Sec. 767.5a. Privileged communications of news reporter; exception; privileged communications of attorneys, clergy and physicians.
“Sec. 5a. (1) A reporter or other person who is involved in the gathering or preparation of news for broadcast or publication shall not be required to disclose the identity of an informant, any unpublished information obtained from an informant, or any unpublished matter or documentation, in whatever manner recorded, relating to a communication with an informant, in any inquiry authorized by this act, except an inquiry for a crime punishable by imprisonment for life when it has been established that the information which is sought is essential to the purpose of the proceeding and that other available sources of the information have been exhausted.”

Cases
Marketos v. American Employers Ins. Co., 185 Mich. App. 179, 191 (Mich. 1990). Court finds nonconfidential material not covered by statute. “Previously, in King v Photo Marketing Ass’n International, 120 Mich App 527; (Mich. App.1982), a panel of this Court recognized a qualified privilege against compelled disclosures of confidential sources in a civil case.”

Minnesota
Minnesota statute provides a qualified privilege in civil and criminal cases and extends to confidential and non-confidential information.

Minnesota Statutes
595.022 Public policy
“In order to protect the public interest and the free flow of information, the news media should have the benefit of a substantial privilege not to reveal sources of information or to disclose unpublished information. To this end, the freedom of press requires protection of the confidential relationship between the news gatherer and the source of information. The purpose of sections 595.021 to 595.025 is to insure and perpetuate, consistent with the public interest, the confidential relationship between the news media and its sources.”

595.023 Disclosure prohibited
“Except as provided in section 595.024, no person who is or has been directly engaged in the gathering, procuring, compiling, editing, or publishing of information for the purpose of transmission, dissemination or publication to the public shall be required by any court, grand jury, agency, department or branch of the state, or any of its political subdivisions or other public body, or by either house of the legislature or any committee, officer, member, or employee thereof, to disclose in any proceeding the person or means from or through which information was obtained, or to disclose any unpublished information procured by the person in the course of work or any of the person’s notes, memoranda, recording tapes, film or other reportorial data whether or not it would tend to identify the person or means through which the information was obtained.”

Cases
Weinberger v. Maplewood Review, 668 N.W.2d 667 (Minn. 2003). First reported case since law was revised in 1998.

Mississippi
Mississippi has no shield law, but does recognize a qualified privilege. There are no reported state cases dealing with reporters’ privilege and confidential sources, so the extent to which Mississippi recognizes the privilege is not clear.

Cases
Eason v. Federal Broadcasting Co., 697 So. 2d 435, 437 (Miss. 1997). The wording of this opinion confirms that Mississippi recognizes reporters’ privilege. “WDAM provides a correct recitation of the reporter’s privilege, but the reporter’s privilege is merely a qualified privilege.” This case dealt with a television station, WDAM, reporting false information. “The entire basis for the lawsuit in the present case is that the report in question was inaccurate as it pertained to the location in which the shooting occurred, and the reporter’s privilege accordingly does not apply under the present facts.”

Missouri
Missouri has no shield law, but does recognize a qualified privilege in civil and criminal cases. The privilege only applies to confidential information.

Cases
CBS, Inc. (KMOX-TV) v. Campbell, 645 S.W.2d 30, 33 (Mo. App. 1982). No privilege in grand jury proceedings. “The secrecy of the grand jury proceeding as reflected in [Secs.] 540.080, 540.110, 540.310, 540.320, RSMo. 1978, ameliorates the harmful effects of disclosure that would result in an ordinary civil or criminal trial.”

State ex rel. Classic III v. Ely, 954 S.W.2d 650, 655 (Mo. App. 1997). Qualified privilege when there is a promise of confidentiality. “We adopt the balancing test … . In so doing, however, we emphasize that the trial court must undertake this balancing test only if the journalist invokes a reporter’s shield privilege based on a promise of confidentiality to his or her source.”

Montana
Montana statute provides an absolute privilege.

Montana Code Annotated
26-1-902 Extent of privilege.
“(1) Without his or its consent no person, including any newspaper, magazine, press association, news agency, news service, radio station, television station, or community antenna television service or any person connected with or employed by any of these for the purpose of gathering, writing, editing, or disseminating news may be examined as to or may be required to disclose any information obtained or prepared or the source of that information in any legal proceeding if the information was gathered, received, or processed in the course of his employment or its business.
“(2) A person described in subsection (1) may not be adjudged in contempt by a judicial, legislative, administrative, or any other body having the power to issue subpoenas for refusing to disclose or produce the source of any information or for refusing to disclose any information obtained or prepared in gathering, receiving, or processing information in the course of his or its business.”

Cases
No reported cases since law was amended in 1989.

Nebraska
Nebraska statute provides for an absolute privilege.

Nebraska Revised Statutes
Sec. 20-146. Procuring, gathering, writing, editing, or disseminating news or other information; not required to disclose to courts or public.

“No person engaged in procuring, gathering, writing, editing, or disseminating news or other information to the public shall be required to disclose in any federal or state proceeding:

“(1) The source of any published or unpublished, broadcast or nonbroadcast information obtained in the gathering, receiving, or processing of information for any medium of communication to the public; or

“(2) Any unpublished or nonbroadcast information obtained or prepared in gathering, receiving, or processing of information for any medium of communication to the public.”

Cases
None reported.

Nevada
Nevada statute provides for an absolute privilege.

Nevada Revised Statutes
Sec. 49.275. News media
“No reporter, former reporter or editorial employee of any newspaper, periodical or press association or employee of any radio or television station may be required to disclose any published or unpublished information obtained or prepared by such person in such person’s professional capacity in gathering, receiving or processing information for communication to the public, or the source of any information procured or obtained by such person, in any legal proceedings, trial or investigation:

“1. Before any court, grand jury, coroner’s inquest, jury or any officer thereof.

“2. Before the legislature or any committee thereof.

“3. Before any department, agency or commission of the state.

“4. Before any local governing body or committee thereof, or any officer of a local government.”

Cases
Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 94 (Nev. 2000). “Nevada’s news shield statute is one of the most liberal in the country. The statute confers upon journalists an absolute privilege from disclosure of their sources and information in any proceeding.”

New Hampshire
New Hampshire has no shield law, but does recognize a qualified privilege in civil and criminal cases. The court has only addressed confidential sources so it is unclear whether non-confidential sources are covered by the privilege.

Cases
State v. Siel, 122 N.H. 254, 259 (N.H. 1982). “[T]he New Hampshire Constitution, part 1, article 22, provides a qualified privilege for reporters in civil cases … . We do not believe that, in a criminal case, this State constitutional privilege must cease to exist. But because the individual citizen’s civil rights must also be protected, ‘a news reporter’s privilege is more tenuous in a criminal proceeding than in a civil case.’”

New Jersey
New Jersey statute provides for an absolute privilege in civil cases. In criminal cases the privilege is qualified, as there are statutory provisions whereby a criminal defendant may overcome the privilege.

New Jersey Statutes
Sec. 2A:84A-21. Newspaperman’s privilege
Rule 27.
“Subject to Rule 37, a person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated has a privilege to refuse to disclose, in any legal or quasi-legal proceeding or before any investigative body, including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative committee, or elsewhere.

“a. The source, author, means, agency or person from or through whom any information was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated, or delivered; and

“b. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated.

“The provisions of this rule insofar as it relates to radio or television stations shall not apply unless the radio or television station maintains and keeps open for inspection, for a period of at least 1 year from the date of an actual broadcast or telecast, an exact recording, transcription, kinescopicfilm or certified written transcript of the actual broadcast or telecast.”

Cases
Maressa v. New Jersey Monthly, 89 N.J. 176, 189 (N.J. 1982). “To summarize, we hold that the New Jersey Shield Law affords newspersons an absolute privilege not to disclose confidential sources and editorial processes, absent any conflicting constitutional right.”

New Mexico
New Mexico recognizes a qualified privilege as granted by the New Mexico Supreme Court. The court created the privilege rule after deciding in Ammerman v. Hubbard Broadcasting that the Legislature had no power to establish a privilege by statute. The rule does not specify whether the privilege applies to civil and criminal cases but does specify that it applies to confidential information.

Cases
Ammerman v. Hubbard Broadcasting, 89 N.M. 307 (N.M. 1976). “[N]o person has a privilege, except as provided by constitution or rule of this court — and no rule of this court grants a privilege to a journalist or newscaster — and in view of our equally plain and unambiguous assertion in our opinion in State ex rel. Anaya v. McBride, supra, that under our Constitution the Legislature lacks power to prescribe by statute rules of evidence and procedure, this constitutional power is vested exclusively in this court, and statutes purporting to regulate practice and procedure in the courts cannot be binding, we are able to reach no conclusion other than that the privilege purportedly created by Sec. 20-1-12.1(A) (now 38-6-7 NMSA 1978), supra, is constitutionally invalid and cannot be relied upon or enforced in judicial proceedings.”

New Mexico Rules of Evidence
11-514 News media-confidential source or information privilege
“B. General rule of privilege. A person engaged or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated has a privilege to refuse to disclose:

“(1) the confidential source from or through whom any information was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated, or delivered in the course of pursuing professional activities; and

“(2) any confidential information obtained in the course of pursuing professional activities.

“Adopted, effective November 1, 1982; as amended, effective December 1, 1993.”

Cases
No reported cases since rule became effective.

New York
New York statute provides an absolute privilege for confidential information and a qualified privilege for non-confidential information. The privilege applies in both civil and criminal cases.

New York Consolidated Law
Sec. 79-h. Special provisions relating to persons employed by, or connected with, news media.
“(b) Exemption of professional journalists and newscasters from contempt: Absolute protection for confidential news.
“(c) Exemption of professional journalists and newscasters from contempt: Qualified protection for nonconfidential news.”

Cases
Beach v. Shanley, 62 N.Y.2d 241 (N.Y. 1984). “The inescapable conclusion is that the Shield Law provides a broad protection to journalists without any qualifying language. It does not distinguish between criminal and civil matters, nor does it except situations where the reporter observes a criminal act.”

North Carolina
North Carolina recognizes a qualified privilege in civil and criminal cases and pertains to confidential as well as non-confidential information.

North Carolina General Statutes
Sec. 8-53.11. Persons, companies, or other entities engaged in gathering or dissemination of news.
“(b) A journalist has a qualified privilege against disclosure in any legal proceeding of any confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist.

“(c) In order to overcome the qualified privilege provided by subsection (b) of this section, any person seeking to compel a journalist to testify or produce information must establish by the greater weight of the evidence that the testimony or production sought:

“(1) Is relevant and material to the proper administration of the legal proceeding for which the testimony or production is sought;

“(2) Cannot be obtained from alternate sources; and

“(3) Is essential to the maintenance of a claim or defense of the person on whose behalf the testimony or production is sought.

Cases
No reported cases since law became effective in 1999.

North Dakota
North Dakota recognizes a qualified privilege in civil and criminal cases and pertains to confidential as well as non-confidential information.

North Dakota Century Code
Sec. 31-01-06.2. Disclosure of news sources and information required only on court order
“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.”

Cases
Grand Forks Herald v. District Court, 322 N.W.2d 850, 854 (N.D. 1982).

Ohio
Ohio statute provides for a qualified privilege in civil and criminal cases. In the case of a source’s identity, there is an absolute protection. The privilege extends to confidential as well as non-confidential information.

Ohio Revised Code
Sec. 2739.04. Revelation of news source by broadcasters
“No person engaged in the work of, or connected with, or employed by any noncommercial educational or commercial radio broadcasting station, or any noncommercial educational or commercial television broadcasting station, or network of such stations, for the purpose of gathering, procuring, compiling, editing, disseminating, publishing, or broadcasting news shall be required to disclose the source of any information procured or obtained by such person in the course of his employment, in any legal proceeding, trial, or investigation before any court, grand jury, petit jury, or any officer thereof, before the presiding officer of any tribunal, or his agent, or before any commission, department, division, or bureau of this state, or before any county or municipal body, officer, or committee thereof.”

Sec. 2739.12. Newspaper reporters not required to reveal source of information
“No person engaged in the work of, or connected with, or employed by any newspaper or any press association for the purpose of gathering, procuring, compiling, editing, disseminating, or publishing news shall be required to disclose the source of any information procured or obtained by such person in the course of his employment, in any legal proceeding, trial, or investigation before any court, grand jury, petit jury, or any officer thereof, before the presiding officer of any tribunal, or his agent, or before any commission, department, division, or bureau of this state, or before any county or municipal body, officer or committee thereof.”

Cases
State v. Geis, 2 Ohio App.3d 258, 263 & 263 (Ohio App. 1981). “We hold that the legislature intended to give broadcast journalists a testimonial privilege from disclosing only the identity of the informant … . R.C. 2739.04 arms radio and television news reporters with an absolute privilege to protect the identity of their informants in any judicial proceeding. However, before a trial court rules that certain evidence is protected by R.C. 2739.04 the trial court must take into account the Sixth Amendment rights of a criminal defendant.”

Oklahoma
Oklahoma statute provides a qualified privilege in civil and criminal cases and pertains to “any unpublished information,” confidential and non-confidential.

Oklahoma Statutes
Sec. 2506. Journalist’s privilege.
“B. No journalist shall be required to disclose in a state proceeding either:

“1. The source of any published or unpublished information obtained in the gathering, receiving or processing of information for any medium of communication to the public; or
“2. Any unpublished information obtained or prepared in gathering, receiving or processing of information for any medium of communication to the public; unless the court finds that the party seeking the information or identity has established by clear and convincing evidence that such information or identity is relevant to a significant issue in the action and could not with due diligence be obtained by alternate means.

“This subsection does not apply with respect to the content or source of allegedly defamatory information, in a civil action for defamation wherein the defendant asserts a defense based on the content or source of such information.”

Cases
Taylor v. Miskovsky, 1981 OK 143 (Ok. 1981).

Oregon
Oregon statute provides for an absolute privilege except in those cases specified by statute (44.530 (3.)).

Oregon Revised Statutes
44.520. Limitation on compellable testimony from media persons; search of media persons’ papers, effects or work premises prohibited; exception.
“(1) No person connected with, employed by or engaged in any medium of communication to the public shall be required by a legislative, executive or judicial officer or body, or any other authority having power to compel testimony or the production of evidence, to disclose, by subpoena or otherwise: (a) The source of any published or unpublished information obtained by the person in the course of gathering, receiving or processing information for any medium of communication to the public; or

“(b) Any unpublished information obtained or prepared by the person in the course of gathering, receiving or processing information for any medium of communication to the public.

“(2) No papers, effects or work premises of a person connected with, employed by or engaged in any medium of communication to the public shall be subject to a search by a legislative, executive or judicial officer or body, or any other authority having power to compel the production of evidence, by search warrant or otherwise. The provisions of this subsection, however, shall not apply where probable cause exists to believe that the person has committed, is committing or is about to commit a crime.”

44.530 Application of ORS 44.520.

“(3) The provisions of ORS 44.520 (1) do not apply with respect to the content or source of allegedly defamatory information, in civil action for defamation wherein the defendant asserts a defense based on the content or source of such information.”

Cases
State v. Pelham, 136 Ore. App. 336 (Ore. App. 1995).

Pennsylvania
Pennsylvania statute provides a qualified privilege in civil and criminal cases and applies to confidential as well as non-confidential information.

Pennsylvania Consolidated Statutes
Sec. 5942. Confidential communications to news reporters
“(a) GENERAL RULE. — No person engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news, shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit.

“(b) EXCEPTION. — The provisions of subsection (a) insofar as they relate to radio or television stations shall not apply unless the radio or television station maintains and keeps open for inspection, for a period of at least one year from the date of the actual broadcast or telecast, an exact recording, transcription, kinescopic film or certified written transcript of the actual broadcast or telecast.

Cases
Commonwealth v. Bowden, 576 Pa. 151, 171 (Pa. 2003). “Bowden and Washington contend that this statute, enacted by the General Assembly to protect reporters from the threat of subpoena, provides an absolute privilege that shelters reporters from compelled disclosure of their unpublished materials. In support of this contention, they rely on this Court’s decision in In re Taylor, 412 Pa. 32, (Pa. 1963), asserting that it interprets the Shield Law as protecting reporters’ unpublished information from disclosure regardless of the confidentiality of any human sources. The reporters also aver that the Taylor decision has been incorporated into the Shield Law itself, as the General Assembly twice re-enacted the Shield Law following Taylor … . Thus, applying Taylor, the reporters contend that the absolute privilege provided by the Shield Law protected their unpublished materials from disclosure. We disagree.”

Rhode Island
Rhode Island statute provides for a qualified privilege in civil and criminal cases. However, it applies only to confidential sources.

General Laws of Rhode Island
Sec. 9-19.1-2. Nondisclosure of confidential information
“Except as provided in Sec. 9-19.1-3, no person shall be required by any court, grand jury, agency, department, or commission of the state to reveal confidential association, to disclose any confidential information, or to disclose the source of any confidential information received or obtained by him or her in his or her capacity as a reporter, editor, commentator, journalist, writer, correspondent, newsphotographer, or other person directly engaged in the gathering or presentation of news for any accredited newspaper, periodical, press association, newspaper syndicate, wire service, or radio or television station.”

Cases
Capuano v. Outlet Co., 579 A.2d 469 (R.I. 1990).

South Carolina
South Carolina provides for a qualified privilege in “any” proceeding, civil or criminal. This privilege applies to “any information, document or item” confidential as well as non-confidential.

South Carolina Code
Sec. 19-11-100. Qualified privilege against disclosure for news media; waiver.
“(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.”

Cases
State v. Smith (In re Decker), 322 S.C. 215 (S.C. 1995).

South Dakota
South Dakota has no shield law, but does recognize a qualified privilege for confidential information.

Cases
Hopewell v. Midcontinent Broadcasting Corp., 538 N.W.2d 780, 782 (S.D. 1995). “[W]e hold that a “qualified privilege” protects confidential news sources from disclosure under certain circumstances.” South Dakota has adopted a test consisting of five factors which need to be considered before deciding to compel disclosure:
“(1) NATURE OF THE LITIGATION. Disclosure is more appropriate if the news person is a party (not merely a witness), particularly in libel cases.

“(2) RELEVANCE. The information must go to the heart of the lawsuit.

“(3) ALTERNATIVE SOURCES. The plaintiff must exhaust all alternative methods of getting the information.

“(4) IMPORTANCE OF CONFIDENTIALITY. In matters of great public importance where the risk of harm is substantial, the court should protect confidential informants who fear exposure and retaliation if they reveal criminal and unethical conduct to the public even if the plaintiff has no other way to obtain the information.

“(5) THE STATEMENT IS FALSE. The plaintiff must make a prima facie showing that the statement is false.”

Tennessee
Tennessee statute provides a qualified privilege in civil and criminal cases and applies to confidential as well as non-confidential information.

Tennessee Code Annotated
24-1-208. Persons gathering information for publication or broadcast — Disclosure
“(a) A person engaged in gathering information for publication or broadcast connected with or employed by the news media or press, or who is independently engaged in gathering information for publication or broadcast, shall not be required by a court, a grand jury, the general assembly, or any administrative body, to disclose before the general assembly or any Tennessee court, grand jury, agency, department, or commission any information or the source of any information procured for publication or broadcast.

“(b) Subsection (a) shall not apply with respect to the source of any allegedly defamatory information in any case where the defendant in a civil action for defamation asserts a defense based on the source of such information.

“(c) (1) Any person seeking information or the source thereof protected under this section may apply for an order divesting such protection. Such application shall be made to the judge of the court having jurisdiction over the hearing, action or other proceeding in which the information sought is pending.”

Cases
Austin v. Memphis Pub. Co., 655 S.W.2d 146, 149 (Tenn. 1983). “In T.C.A. § 24-1-208(a), the Legislature has in clear and unambiguous language expressly stated that a newsman, etc., gathering information for publication, shall not be required to disclose to any Tennessee court, etc., ‘any information or the source of any information procured for publication or broadcast.’ The Legislature did not qualify ‘any information’ or the ‘source of any information’ with the word ‘confidential.’ The non-specific adjective ‘any’ means all.”

Texas
On May 13, 2009, Texas Gov. Rick Perry signed H.B. 670, adding Texas to the list of states having shield laws enacted by statute. The new law, which took when upon Perry’s signature, provides a qualified privilege in civil and criminal cases and applies to confidential sources and information.

Sec. 22.022. PURPOSE. The purpose of this subchapter is to increase the free flow of information and preserve a free and active press and, at the same time, protect the right of the public to effective law enforcement and the fair administration of justice.

Sec. 22.023. PRIVILEGE. (a) Except as otherwise provided by this subchapter, a judicial, legislative, administrative, or other body with the authority to issue a subpoena or other compulsory process may not compel a journalist to testify regarding or to produce or disclose in an official proceeding:
1) any confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist; or
(2) the source of any information, document, or item described by Subdivision (1).
(b) A subpoena or other compulsory process may not compel the parent, subsidiary, division, or affiliate of a communication service provider or news medium to disclose the information, documents, or items or the source of any information, documents, or items that are privileged from disclosure under Subsection (a).

Sec. 22.024. LIMITED DISCLOSURE GENERALLY. After notice and an opportunity to be heard, a court may compel a journalist, a journalist’s employer, or a person with an independent contract with a journalist to testify regarding or to produce or disclose any information, document, or item or the source of any information, document, or item obtained while acting as a journalist, if the person seeking the information, document, or item or the source of any information, document, or item makes a clear and specific showing that:
(1) all reasonable efforts have been exhausted to obtain the information from alternative sources;
(2) the subpoena is not overbroad, unreasonable, or oppressive and, when appropriate, will be limited to the verification of published information and the surrounding circumstances relating to the accuracy of the published information;
(3) reasonable and timely notice was given of the demand for the information, document, or item;
(4) in this instance, the interest of the party subpoenaing the information outweighs the public interest in gathering and dissemination of news, including the concerns of the journalist;
(5) the subpoena or compulsory process is not being used to obtain peripheral, nonessential, or speculative information; and
(6) the information, document, or item is relevant and material to the proper administration of the official proceeding for which the testimony, production, or disclosure is sought and is essential to the maintenance of a claim or defense of the person seeking the testimony, production, or disclosure.

Utah
In 2008 the Utah Supreme Court adopted Rule 509 of the Utah Rules of Evidence. Rule 509 provides for a near absolute privilege for confidential sources.

Utah Rules of Evidence. Article V, Privileges. Rule 509. News Reporters.

“(b) Privilege for Confidential Source Information. A news reporter or confidential source has a privilege to refuse to disclose and to prevent any other person from disclosing confidential source information, unless the person seeking the information demonstrates by clear and convincing evidence that disclosure is necessary to prevent substantial injury or death.

“(c) Privilege for Confidential Unpublished News Information. A news reporter has a privilege to refuse to disclose confidential unpublished news information, unless the person seeking such information demonstrates a need for that information which substantially outweighs the interest of a continued free flow of information to news reporters.

“(d) Privilege for other Unpublished News Information. A news reporter has a privilege to refuse to disclose other unpublished news information if the person claiming the privilege demonstrates that the interest of a continued free flow of information to news reporters outweighs the need for disclosure.”

Cases
None reported.

Vermont
Although Vermont has no shield law, it does recognize a qualified privilege in criminal cases.

Cases
State v. St. Peter, 132 Vt. 266, 271 (Vt. 1974). “[W]e hold that, when a newsgatherer, legitimately entitled to First Amendment protection, objects to inquiries put to him in a deposition proceeding conducted in a criminal case, on the grounds of a First Amendment privilege, he is entitled to refuse to answer unless the interrogator can demonstrate to the judicial officer appealed to that there is no other adequately available source for the information and that it is relevant and material on the issue of guilt or innocence.”

Virginia
Virginia has no shield law, but recognizes a qualified privilege in civil and criminal cases that applies only to confidential sources.

Cases
Brown v. Commonwealth, 214 Va. 755, 757 (Va. 1974). “We believe that, as a news-gathering mechanism, a newsman’s privilege of confidentiality of information and identity of his source is an important catalyst to the free flow of information guaranteed by the freedom of press clause of the First Amendment. Unknown at common law, it is a privilege related to the First Amendment and not a First Amendment right, absolute, universal, and paramount to all other rights … we think the privilege of confidentiality should yield only when the defendant’s need is essential to a fair trial.”

Philip Morris Co. v. American Broadcasting Co., 36 Va. Cir. 1, 14 (Va. Cir. 1995). “[T]his court holds under the U.S. Constitution that the press enjoys a qualified privilege against disclosure of confidential sources in public figure defamation cases where the reporter is a defendant.”

Washington
Washington law provides an absolute privilege against compelled disclosure of the identity of a confidential source of information and a qualified privilege in all other cases.

Revised Code of Washington. RCW 5.68.010, Protection from compelled disclosure — Exceptions — Definition.

“(1) Except as provided in subsection (2) of this section, no judicial, legislative, administrative, or other body with the power to issue a subpoena or other compulsory process may compel the news media to testify, produce, or otherwise disclose:

“(a) The identity of a source of any news or information or any information that would tend to identify the source where such source has a reasonable expectation of confidentiality … .

“(2) A court may compel disclosure of the news or information described in subsection (1)(b) of this section … .”

Cases
Senear v. Daily Journal-American, Div. of Longview Pub. Co., 97 Wn.2d 148, 157 (Wash. 1982). “We hold there is a common law qualified privilege for journalists in civil cases. This privilege, of course, applies to both working reporters and the organizations by whom they are employed.”

State v. Rinaldo, 102 Wn.2d 749, 754 (Wash. 1984). “The qualified common law privilege for journalists in civil cases is extended to criminal cases.”

West Virginia
On April 4, 2011, West Virginia Governor Earl Ray Tomblin signed a bill approving a new law to protect journalists from having to disclose confidential sources in most legal proceedings. The bill will take effect June 10, 2011.

The new law provides a near absolute privilege against compelled disclosure of the identity of a confidential source of information and covers published and unpublished information.

Code of West Virginia. Article 3. Competency of Witnesses.
§57-3-10. Reporters’ Privilege.

“(a) “Reporter” means a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood, or a supervisor, or employer of that person in that capacity: Provided, That a student reporter at an accredited educational institution who meets all of the requirements of this definition, except that his or her reporting may not provide a portion of his or her livelihood, meets the definition of reporter for purposes of this section.
(b) No reporter may be compelled to:
(1) Testify in any civil, criminal, administrative or grand jury proceeding in any court in this state concerning the confidential source of any published or unpublished information obtained by the reporter in the course of the above described activities without the consent of the confidential source, unless such testimony is necessary to prevent imminent death, serious bodily injury or unjust incarceration; or
(2) Produce any information or testimony that would identify a confidential source, without the consent of the confidential source, unless such testimony or information is necessary to prevent imminent death, serious bodily injury or unjust incarceration.
(c) Nothing in this section shall be read to limit any existing constitutional protections afforded any person under the United States or West Virginia Constitutions.”

Cases
State ex rel. Hudok v. Henry, 182 W. Va. 500, 505 (W.Va 1989). “[W]e conclude that to protect the important public interest of reporters in their news-gathering functions under the First Amendment to the United States Constitution, disclosure of a reporter’s confidential sources or news-gathering materials may not be compelled except upon a clear and specific showing that the information is highly material and relevant, necessary or critical to the maintenance of the claim, and not obtainable from other available sources.”

State ex rel. Charleston Mail Ass’n v. Ranson, 200 W. Va. 5, 13 (W.Va. 1997). “We conclude that a defendant in a criminal case may obtain unpublished, nonconfidential information from a media source upon both a particularized showing that the material sought satisfies the three above-enumerated requirements and, upon such a showing, an in camera review by the circuit court.”

Wisconsin
On May 18, 2010, Wisconsin Gov. Jim Doyle signed Assembly Bill 333 into law. The shield law was to take effect in three months. Under it, a judge could order reporters to reveal confidential information only under limited circumstances.

Cases
State v. Knops, 49 Wis. 2d 647, 659 (Wis. 1971). “We conclude that the appellant has a constitutional right to the privilege not to disclose his sources of information received in confidential relationship. However, when such confidence is in conflict with the public’s overriding need to know, it must yield to the interest of justice.”

Kurzynski v. Spaeth, 196 Wis. 2d 182, 196 (Wis. Ct. App. 1995). “Application of a qualified journalist’s privilege in the context of civil litigation requires a balancing between, on the one hand, the need to insulate journalists from undue intrusion into their news-gathering activities and, on the other hand, litigants’ need for every person’s evidence. This balancing is required irrespective of whether the journalist’s information was obtained in return for a promise of confidentiality.”

Wyoming
Wyoming has no shield law. However, Wyoming lies within the jurisdiction of the 10th Circuit, which does recognize a qualified privilege in civil cases for confidential information. It can be assumed that Wyoming would look to federal case law to help decide the question of a reporter’s privilege, as other states in this circuit have done.

Cases
No reported cases.

Updated April 2011

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