Note: This page covers information specific to the District of Columbia. See the section on Protecting Sources and Source Material for more general information.
The District of Columbia has a shield statute that may protect your newsgathering material from forced disclosure. The shield law protects both the identity of sources and unpublished information collected or prepared in the newsgathering process, such as notes and outtakes. The protection for the identity of sources is "absolute," meaning there are no exceptions to the law's protection. On the other hand, protection for unpublished information is "qualified," meaning it will not provide protection in all circumstances. The shield protects those who are "employed by the news media" (definition below), so it may not protect some amateur journalists and others who publish informally and/or sporadically.
In addition, federal courts in the D.C. Circuit have recognized a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. This qualified privilege protects a broad category of individuals collecting information for dissemination to the public, and it protects both the identity of sources and unpublished information.
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.
The District of Columbia has no other sources of law that offer you protection from disclosing information.
Shield LawSource and Statutory Text
The District of Columbia has a shield law, titled the Free Flow of Information Act, D.C. Code § 4701-4704. You can see the four parts of D.C.'s shield law below, with excerpts of important text.
- D.C. Code § 16-4701. Definitions. - Defines who is included in the statute's coverage.
For the purpose of this chapter, the term "news media" means . . . [a]ny printed, photographic, mechanical, or electronic means of disseminating news and information to the public.
- D.C. Code § 16-4702. Compelled disclosure prohibited. - Provides the general rule prohibiting legal bodies from forcing disclosure of information.
Except as provided in section 16-4703, no [legal body] 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 . . . .
- D.C. Code § 16-4703. Compelled disclosure permitted. - Sets out the exceptions to the law's general rule against forced disclosure.
(a) A court may compel disclosure of news or information otherwise protected from disclosure under section 16-4702(2) if the court finds . . . by clear and convincing evidence that: (1) The news or information is relevant to a significant legal issue . . .; (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.
- D.C. Code § 16-4704. Activities not constituting a waiver. - States that publication or discussion of confidential information does not eliminate the law's protection.
The publication by the news media or the dissemination by a person employed by the news media of a source of news or information, or a portion of the news or information, procured while pursuing professional activities shall not constitute a waiver of the protection from compelled disclosure that is contained in section 16-4702.
Who is Covered?
The D.C. shield law applies to information obtained by any person "while employed by the news media." In addition to traditional news media formats like newspapers, magazines, and television, the term "news media" also covers the broader category of "any printed, photographic, mechanical, or electronic means of disseminating news and information to the public." So, the "news media" clearly encompasses those engaging in online publishing of news and information.
The key question for many online publishers, therefore, will be whether they are "employed" in online publishing. There is no law specifically addressing this point in the online or non-traditional journalism context. But generally the law does not seem to require traditional employment by an organization. For instance, one case, Prentice v. McPhilemy, Case No. 98-CA-0004309 (D.C. Super. Ct. May 5, 1999), held that an author working on his own to write a book was covered by the statute. However, the law may require some kind of income or payment in return for your activities. This "employment" requirement could present an obstacle to some amateur journalists and others who publish independently, informally and/or sporadically and who do not make money from their activities.
What Information is Protected? How Strong is the Protection?
D.C.'s shield law protects two categories of information, which are protected to different degrees:
Identity of Sources: D.C.'s shield law protects "the source of any news or information." The shield protection is absolute -- under no circumstances can courts compel someone covered by the statute (above) to divulge the identity of a source. It protects you whether or not you promise confidentiality to the source in question. The shield applies equally in criminal and civil cases. It also applies whether or not the newsgatherer is a party to the case in which information is sought.
Unpublished information: D.C.'s shield law protects information gathered or prepared for a story, post, or other work, which is not ultimately published. The shield covers all types of materials, whether written, audio, video, or any other format. It applies in both criminal and civil cases, and it applies whether or not the newsgatherer is a party to the case in which information is sought.
The protection offered by the D.C. shield law to unpublished information is qualified, which means that a court may force you to reveal it under certain circumstances, even if you are covered by the statute (above). In order to compel disclosure of unpublished information, a court or other legal body must find that three conditions are met: (1) the news or information is relevant to a significant legal issue; (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. ("Due diligence" is a legal term that generally refers to a reasonable amount of effort.)
The results of this kind of balancing test would be different depending on the facts of the particular case. Courts may be particularly inclined to order disclosure when the person trying to protect information is a party to the lawsuit in question, or when a criminal defendant seeks information to mount a defense.
For more detailed information about the D.C. shield law, see the Reporters Committee for Freedom of the Press' Privilege Compendium: D.C..
Federal Reporter's Privilege
Federal courts in the D.C. Circuit have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. This qualified privilege applies to the identity of sources and unpublished information collected during newsgathering.
Who is Covered?
Although the law is not entirely clear on who may take advantage of the federal reporter's privilege, federal courts in D.C. have taken a broad view of who qualifies as a "reporter" or "journalist."
In one case, a federal district court characterized the law as follows: "an individual successfully may assert the journalist's privilege if he is involved in activities associated with gathering and dissemination of news, even though he may not ordinarily be a member of the institutionalized press." Under this view, the party claiming the reporter's privilege must introduce competent evidence to show that he or she had an "intent to use material -- sought, gathered, or received -- to disseminate information to the public and that such intent existed at the inception of the newsgathering process." Alexander v. FBI, 186 F.R.D. 21, 50 (D.D.C. 1998).
In another case, a court upheld the claimed privilege of an individual who published his own biweekly newsletter on U.S. political and social movements. The court explained that "the privilege is not limited to the writers of large established newspapers and media enterprises but is equally applicable to the sole publisher of a newsletter or other writing or paper distributed to the public to inform, to comment, or to criticize." Liberty Lobby, Inc. v. Rees, 111 F.R.D. 19, 20 (D.D.C. 1986). It would be possible to draw an analogy between this kind of newsletter and an independently published blog or website.
These cases provide strong support for the argument that a amateur and non-traditional journalists, including those who publish online, are protected by the federal reporter's privilege in D.C.
What Information is Protected?
In D.C., the federal reporter's privilege protects both the identity of sources and unpublished information collected during newsgathering. With regard to sources, the privilege applies whether or not you promise confidentiality to a source. However, when you do not promise confidentiality to a source, the privilege may be weaker, and a court may be more willing to require disclosure.
Strength of the Privilege
In D.C., the federal reporter's privilege is qualified, meaning that a party seeking information can overcome it upon a proper showing of need. The federal courts are most likely to uphold the reporter's privilege in a civil case where the person invoking the privilege is not a party to the lawsuit. In contrast, courts are more likely to order disclosure of information in a criminal case where the criminal defendant is seeking information from a reporter to help mount his/her defense.
For additional information, see the Reporters Committee for Freedom of the Press' Privilege Compendium: D.C. 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 General: Legal Protections for Confidential Sources and Source Material.