Illinois Protections for Sources and Source Material

Note: This page covers information specific to Illinois. See the section on Protecting Sources and Source Material for more general information.

Illinois has a shield law that may protect your sources and newsgathering materials. Whether the shield law covers you depends on whether the law deems you a "reporter," and on the medium in which you work. If the shield applies to you, it can protect both the identity of your sources and unpublished information collected during newsgathering. The shield law creates a qualified privilege -- in certain circumstances, a court may order you to disclose information even if you are covered by the statute.

Historically, federal courts in the Seventh Circuit, which encompasses Illinois, recognized a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. However, a recent case casts serious doubt on the continued validity of a federal reporter's privilege in Illinois.

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.

There is no common law protection for sources or source material in Illinois.

Shield Law

Source and Statutory Text

Illinois's shield law, located at 75 Ill. Comp. Stat. 5/8-901 to 8-909, states in relevant part:

Sec. 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 [the other provisions of the shield law].

Sec. 8‑902. Definitions.

(a) "Reporter" means any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full‑time or part‑time basis . . . .
(b) "News medium" means any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation; a news service whether in print or electronic format; a radio station; a television station; a television network; a community antenna television service; and any person or corporation engaged in the making of news reels or other motion picture news for public showing.
(c) "Source" means the person or means from or through which the news or information was obtained.

Sec. 8‑907. Court's findings.

An order [requiring the disclosure of protected information] shall be granted only if the court . . . finds . . . that all other available sources of information have been exhausted and, either, disclosure of the information sought is essential to the protection of the public interest involved or, in libel or slander cases, the plaintiff's need for disclosure of the information sought outweighs the public interest in protecting the confidentiality of sources of information . . . .

Who is Covered?

To be protected by the Illinois reporter shield, you must meet two conditions: First, you must fit within the law's definition of "reporter." Second, the medium in which you publish must meet the law's definition of a "news medium."

Reporter: The statute defines a "reporter" as "any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full‑time or part‑time basis." The key term here is "regularly," so you may not be covered if your activities are sporadic or occasional. Illinois courts have not ruled on whether the statute covers amateur or hobbyist newsgatherers, but the language of the statute (terms like "business" and "full-time or part-time") indicates that it might not.

News medium: The law defines "news medium" to include electronic media in addition to traditional forms of news publication. However, Illinois courts have not had the opportunity to clarify the definition of "news medium" as it applies to non-traditional journalists and other online publishers, and several questions remain unanswered. For example, the definition includes electronic periodicals and electronic news services, but it is unclear whether a blog or message board would fit into those categories. Additionally, the definition includes people making "news reels and other motion picture news," but it is hard to say whether this includes documentary films, video-blogs, and other forms of online video production. It is also unclear whether the definition includes internet radio, internet television, and podcasts.

What Information is Protected?

Illinois's shield law protects the "sources" of information. The law defines a "source" as "the person or means from or through which the news or information was obtained." The law applies to both human sources and documentary sources, including information obtained in the newsgathering process, whether confidential or non-confidential (i.e., information not obtained in return for a promise of confidentiality). In People v. Slover, 753 N.E.2d 554, 558 (Ill. App. Ct. 2001), an Illinois court held that a reporter's unpublished photograph depicting police performing a search was a protected "source" within the meaning of the statute. You do not need to promise a human source confidentiality in order to take advantage of the shield's protection.

How Strong is the Protection?

The Illinois shield law provides a qualified privilege, which means that a court may force you to reveal information in some circumstances. In order to compel disclosure of information that otherwise would be protected by the shield, a court or other legal body must find that "all other available sources of information have been exhausted" and that "disclosure of the information sought is essential to the protection of the public interest involved." The results of this kind of balancing test would be different depending on the facts of the particular case.

This standard applies in both civil and criminal cases, although a slightly different standard applies in civil defamation actions. As a practical matter, 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. One Illinois court has held that the shield does not apply to non-confidential information sought by a criminal defendant.

For more detailed information about the Illinois shield law, see the Reporter's Committee for Freedom of the Press's Privilege Compendium: Illinois.

Federal Reporter's Privilege

Until recently, it appeared that federal courts in the Seventh Circuit, which encompasses Illinois, recognized a qualified privilege based on the First Amendment to the U.S. Constitution. The courts recognizing this privilege applied it to both the identity of confidential sources and unpublished information (whether confidential or nonconfidential) collected during newsgathering. Before ordering disclosure of covered information, the courts applied a balancing test considering the media's interests in protecting the information, the relevance of the material sought, and whether the source was confidential.

A significant recent case, McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), casts serious doubt on the continued validity of the reporter's privilege in the Seventh Circuit. Unfortunately, the decision was written in an enigmatic style that makes it difficult to know for sure whether future attempts to invoke the federal reporter's privilege are foreclosed in Illinois.

For additional information on the federal reporter's privilege in the Seventh Circuit before the McKevitt case, see the Reporter's Committee for Freedom of the Press's Privilege Compendium: 7th 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.

 

Last updated on April 23rd, 2008

   
 
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