Note: This page covers information specific to Arizona. See the section on Protecting Sources and Source Material for more general information.
There are four potential legal bases for protecting your sources and source material in Arizona: the Arizona Press Shield Law, the Arizona Media Subpoena Law, the United States Constitution, and the federal Privacy Protection Act.
The Arizona Press Shield Law protects the identity of confidential sources of information obtained during the newsgathering process. Information that is not related to the identity of confidential sources is not covered by the Press Shield Law.
The Arizona Media Subpoena Law sets forth six requirements that must be met before a party can subpoena a journalist to testify or produce documentary evidence relating to her newsgathering activities in a civil or criminal trial. If the requirements of the Media Subpoena Law are not met, the journalist cannot be compelled to testify about matters related to her newsgathering activities or produce documentary evidence, regardless of whether that testimony or evidence involves confidential sources or not.
The U.S. Constitution may protect you from having to disclose the identity of sources or information collected during newsgathering. Federal and state courts in Arizona recognize a qualified reporter’s privilege based on the First Amendment to the U.S. Constitution. The reporter’s privilege applies to the identity of sources and unpublished information collected or prepared in newsgathering, whether confidential or not (although protection is stronger for confidential information). Because it is qualified, the party seeking information from a reporter may overcome it upon a strong showing of need.
The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.
Arizona has no other sources of law that offer you protection from disclosing information.
Arizona Press Shield LawSource and Text
The Arizona Press Shield Law is codified at A.R.S. § 12-2237. It provides:
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.Who is Protected?
The Court of Appeals of Arizona has stated that Arizona’s Press Shield Law protects “members of the media.” Matera v. Superior Court, 170 Ariz. 446, 449 (Ariz. Ct. App. 1992). The court of appeals has expressly declined to expand the privilege beyond “‘journalists in the traditional sense of that term’” to “anyone who is engaged in gathering and publishing information which is of topical and widespread interest.” Id. at 450 (quoting von Bulow v. von Bulow, 811 F.2d 136, 143 (2d Cir. 1987)). We are not aware of any decisions applying the Press Shield Law in an online context. The limitation of the statute to sources of information obtained for publication in a newspaper or on radio or TV makes application of the statute to online publications unlikely, unless the information is intended for publication in both online and traditional media. Nevertheless, whether journalists publishing news in online outlets would be considered “journalists in the traditional sense of that term” under the law is technically an open question.What Information is Protected?
The Arizona Press Shield Law protects journalists “from being compelled to testify about or otherwise disclose confidential sources utilized during the newsgathering process.” Matera, 170 Ariz. at 449. This protection is absolute.
The Court of Appeals of Arizona has specified that the Press Shield Law “does not protect all activities of would-be publishers or newsgatherers, nor does it protect any and all information gathered.” Id. at 449-50. Information that is not related to the identity of confidential sources is not covered by the Press Shield Law.
The Press Shield Law applies broadly, “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.” A.R.S. § 12-2237. By its terms, the statute does not distinguish between civil or criminal trials, grand jury proceedings, or other legal proceedings.Waiver of the Press Shield Law
Arizona courts have not definitely determined whether the protections of the Press Shield Law can be waived. However, in one case, Flores v. Cooper Tire and Rubber Co., 218 Ariz. 52 (2008), the Court of Appeals of Arizona assumed without deciding that the protections of the Press Shield Law can be waived and elaborated on what may constitute a waiver.
The Court stated that situations in which the Press Shield Law may be waived will be construed narrowly. Id. at 59. If a media entity seeks to use the Press Shield Law as “both a sword and shield,” Arizona courts may find the privilege waived. Id. at 58. In other words, if a party seeks both affirmative relief and attempts to use the Press Shield Law to withhold privileged information, the privilege may be waived. Id. The Court has also specified, however, that seeking a declaratory judgment, as opposed to damages or an injunction, will not cause a waiver of the Press Shield Law protections. Id. In short, the Court has stated that waiver may occur “‘when the conduct . . . places the claimant in such a position, with reference to the evidence, that it would be unfair and inconsistent to permit the retention of the privilege.’” Id. (quoting Throop v. E.F. Young & Co., 94 Ariz. 146, 158 (1963)).
The Arizona Court of Appeals has also held that the disclosure of partial information will not waive the privilege as to all information gathered on the same subject matter. Id. at 59. For example, identifying a confidential source as a “whistle blower” does not waive the privilege as to the actual identity of the source. Id.
Arizona Media Subpoena Law
Source and Text
The Arizona Media Subpoena Law is codified at A.R.S. § 12-2214. It provides:
- 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:
- Each item of documentary and evidentiary information sought from the person subpoenaed.
- 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.
- The identity of the other sources from which the affiant or his representative has attempted to obtain the information.
- That the information sought is relevant and material to the affiant’s cause of action or defense.
- That the information sought is not protected by any lawful privilege.
- 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.
- A subpoena served on a person described in subsection A without the required affidavit attached to it has no effect.
- If the affidavit is controverted or a motion to quash the subpoena or for a protective order is filed by the person subpoenaed, the command of the subpoena shall be postponed until a hearing is held and an order is entered by the court. After the hearing the command of the subpoena shall be carried out in accordance with the order of the court.
- This section does not apply to a subpoena for the attendance of a witness or the production of documentary evidence issued by or on behalf of a grand jury or a magistrate during an investigative criminal proceeding.
Who is Protected?
The Media Subpoena Law applies to a “person engaged in the gathering, reporting, writing, editing, publishing or broadcasting news to the public.” A.R.S. § 12-2214.
The Court of Appeals of Arizona has held that the Media Subpoena Law applies only to those people “who gather and disseminate the news on an ongoing basis as part of the organized, traditional, mass media.” Matera, 170 Ariz. at 448. Specifically, the Court has held that it does not apply to authors of non fiction books, including non fiction books about newsworthy recent events. Id. at 447, 448.
What is Protected?
The Media Subpoena Law is not a shield law. The statute “was not designed to protect the information collected, but rather was designed to aid a specific class of persons – members of the media – in performing their jobs free from the inconvenience of being used as surrogate investigators for private litigants.” Matera, 170 Ariz. at 448.
As a result, the statute is not an absolute bar on subpoenaing journalists to testify or about matters related to their news gathering or requiring them to provide news gathering product, such as videotape or pictures. Instead, the person issuing the subpoena must fulfill several requirements. If those requirements are met, the Media Subpoena Law will not protect the journalist from testifying. However, if the requirements are not met, the subpoena will have no effect and cannot be used to compel a journalist to testify or produce documentary evidence for the court. A.R.S. § 12-2214(B).
How are the Requirements of the Media Subpoena Law Met?
The statute requires that the party seeking the information (i.e., the party requesting the subpoena) fulfill six requirements before the subpoena will be issued. He must show:
- what information he seeks;
- that he has attempted to obtain the information from other sources and has not been able to do so;
- the identity of the other sources from which he has attempted to obtain the information;
- that the information is relevant and material;
- that the information is not protected by any privilege; and
- that the subpoena is not intended to interfere with the gathering, writing, editing, publishing, broadcasting and disseminating of news to the public. A.R.S. § 12-2214(A)(1)-(6).
The initial burden is on the party seeking the information to show compliance with parts (A)(1) through (A)(6) of the Media Subpoena Law. Bartlett v. Superior Ct. in and for Pima Cty., 150 Ariz. 178, 183 (1986). However, he does not need to show a “compelling need” or that he “cannot make his case without the information.” Id. Instead, he must “identify in reasonable detail in his affidavit the information sought, the efforts to obtain it and from what sources.” Id. To meet the requirements of (A)(4) through (A)(6), all that is required is the “affiant’s avowal, unless controverted.” Id.
If the party resisting the subpoena (i.e., the journalist) disputes the affidavit submitted by the party requesting the subpoena, the court must hold a hearing and determine whether the required showing has been made. Id. Until the hearing is held and the court enters an order, enforcement of the subpoena will be postponed. A.R.S. § 12-2214(C).
After the party seeking the information has complied with the six requirements, “the burden shifts to the party opposing the subpoena to controvert the allegations of the affidavit and to set forth the bases therefore.” Id. The party opposing the subpoena must provide specific bases for controverting the affidavit. For example, if he wishes to argue that the information sought could be obtained elsewhere, he must set forth “the manner in which previous efforts were deficient or other specific sources from which the information is available.” Id.
If the party opposing the subpoena alleges generally that the information is available from other sources, the court is not necessarily required to examine and review every other possible source of the information. Instead, if the party seeking the information avows that he has examined the other possible sources of information and found that the information is not available from those sources, this avowal will be sufficient. Id. In other words, the court will accept the word of the party seeking the information. If the party opposing the subpoena believes the information is in fact available from other sources, it is up to that party to review the other sources and “point out to the court where equivalent information could be found.” Id. Thus, while the court will not independently search the record to determine if information is available from other sources, it will review specific evidence pointed to by the party opposing the subpoena to determine if the information is available elsewhere.
For more detailed information about the Arizona Press Shield Law and Media Subpoena Law, see the Reporters Committee for Freedom of the Press’s Privilege Compendium: Arizona.
Federal Constitutional Reporter's Privilege in State Courts
The Court of Appeals of Arizona has recognized the existence of the federal constitutional privilege created by Branzburg v. Hayes, 408 U.S. 665 (1972), and its progeny. Matera, 170 Ariz. at 449. The Court has stated that the federal constitutional reporter’s privilege as created by Branzburg is limited to information regarding confidential sources or cases that “would seriously interfere with the news gathering and editorial process.” Bartlett, 150 Ariz. at 182.
The Court has also stated that the federal constitutional reporter’s privilege is the same as the privilege created by the Arizona Press Shield Law. According to the Court of Appeals of Arizona, “under Branzburg[,] the states and the federal courts have the freedom to create, expand, or restrict protection for publishers as they see fit.” Matera, 170 Ariz. at 449. Noting that Arizona’s Press Shield Law was enacted well before Branzburg, the Court has held that “[t]he constitutional privilege afforded to reporters in Arizona is codified at A.R.S. § 12-2237,” the Press Shield Law. Id. Accordingly, it is unlikely that you will be able to use the constitutional reporter's privilege as protection in the Arizona state courts if you are not covered by the Press Shield Law.
Federal Constitutional Reporter's Privilege in Federal Courts
Federal courts in the Ninth Circuit, which encompasses Arizona, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. An important case indicates that the privilege should protect a broad category of people engaging in newsgathering, stating that "what makes journalism journalism is not its format but its content." Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993). Although the law is not clear on this point, the privilege appears to protect the identity of sources and unpublished information, whether confidential or not. Protection likely is stronger, however, for confidential information.
The courts have applied the privilege in both civil and criminal cases, although its protection is stronger in civil cases. The courts have not upheld the privilege with respect to subpoenas issued in grand jury proceedings. The privilege is qualified, which means that a court may order you to reveal information if the need of the person seeking the information outweighs the policies favoring a privilege. The results of this kind of balancing test would be different depending on the facts of the particular case.
For additional information, see The Reporters Committee for Freedom of the Press's Privilege Compendium: 9th Circuit.
Privacy Protection Act
The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see Legal Protections for Sources and Source Material.