Note: This page covers information specific to Massachusetts. See the section on Protecting Sources and Source Material for more general information.
For additional information about engaging in journalism in the Commonwealth of Massachusetts, please see our printable PDF guide Newsgathering in Massachusetts, co-produced with the Harvard Law School Cyberlaw Clinic.
Massachusetts does not have a shield law. The state legislature recently considered enacting a shield law, but failed to do so.
You may be able to protect your sources and unpublished information obtained in the course of newsgathering under Massachusetts "common law." "Common law" is judge-made law. Because common law is developed on a case-by-case basis by courts, rather than through legislative pronouncement of general rules, it often suffers from gaps, ambiguities, and uncertainties. This is the case with Massachusetts's common law privilege for reporters, which is not well defined.
In addition, federal courts in the First Circuit, which encompasses Massachusetts, recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution that protects the identity of sources and (potentially) unpublished information collected or prepared during newsgathering. However, the scope of this privilege is uncertain, and its protection depends on the circumstances of your particular case. Massachusetts state courts do not recognize any protections for reporters based on the U.S. Constitution or the Massachusetts Constitution.
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.
Massachusetts courts recognize a common law privilege for reporters. It applies to sources and unpublished information. Its exact character and scope are uncertain, as is its application to online publishing and non-traditional journalism.
Who is Covered?
Massachusetts courts have not defined who exactly is covered by the common law reporter's privilege. However, a federal court interpreting Massachusetts law held that an investment analyst who wrote a report for his job was covered by the common law privilege for reporters even though he was not a part of the "organized press." Summit Technology, Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992). However, this decision has no weight as precedent (i.e., it is not legally binding) in Massachusetts state courts. That means that future courts that reach the same issue could rule differently. Moreover, it is unclear how this case would apply in other cases, such as when the person seeking to protect information is an amateur or hobbyist. Nevertheless, it provides support for the argument that people outside the traditional news media are covered by the Massachusetts common law privilege as long as they are gathering information with an intent to disseminate it to the public.
What Information is Protected?
The common law privilege protects unpublished information gathered or prepared in the course of newsgathering and the identity of sources. The law gives more protection to confidential information (i.e., information received in exchange for a promise of confidentiality) than non-confidential information.
How Strong is the Protection?
The common law privilege is qualified, meaning that courts sometimes will order you to disclose information, even if you and your information qualify for protection. Courts in Massachusetts do not apply any set formula in determining whether information should be disclosed or not. Instead, they balance the "interests" of the newsgatherer and the party who wants the information. The results of this kind of balancing test would be different depending on the facts of the particular case.
The same test applies in criminal and civil cases and whether or not you are a party to the lawsuit. As a practical matter, however, courts may be particularly inclined to order disclosure when you are a party to the lawsuit in question or when a criminal defendant seeks information to mount a defense. The protection is especially weak if someone sues you for defamation; however, a court might find that you are not required to reveal your sources if the plaintiff cannot "demonstrate an essential relationship between the identities of the sources and the plaintiffs' ability to establish an element of their claim." Wojcik v. Boston Herald, Inc., 60 Mass. App. Ct. 510, 517 n.17 (2004).
For more detailed information about Massachusetts's common law privilege, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Massachusetts.
Constitutional Protection in Federal Court
Federal courts in the First Circuit, which encompasses Massachusetts, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. It applies to the identity of sources and (potentially) to unpublished information collected or prepared during newsgathering.
In interpreting the only Supreme Court case addressing reporter’s privilege, Branzburg v. Hayes, 408 U.S. 665 (1972), the U.S. Court of Appeals for the First Circuit has recognized some room for balancing First Amendment interests with countervailing governmental interests in reporters’ disclosure of sources. The majority opinion in Branzburg held that the First Amendment does not provide a reporter with a privilege from testifying before a grand jury about information obtained and events witnessed in the course of researching a story. However, Justice Powell’s fifth-vote concurring opinion is often considered controlling, establishing a qualified privilege subject to a balancing test “between freedom of the press and the obligation of all citizens to give relevant testimony.” The First Circuit has held that “[t]he Branzburg analysis, especially as to the strength of the governmental and public interest in not impeding criminal investigations, guides our outcome,” implicitly adopting some form of Justice Powell’s balancing. In re Dolours Price, 685 F.3d 1, 18 (1st Cir. 2012), cert. denied, 133 S. Ct. 1796 (U.S. 2013).
Who is Covered?
Federal courts in the First Circuit have extended the reporter's privilege to people other than traditional journalists, including research analysts and academics. In an important case, the First Circuit Court of Appeals stated that
[T]he medium an individual uses to provide his investigative reporting to the public does not make a dispositive difference in the degree of protection accorded to his work. . . . [T]he courts will make a measure of protection available to him as long as he intended "at the inception of the newsgathering process" to use the fruits of his research "to disseminate information to the public."
Cusumano v. Microsoft Corp., 162 F.3d 708, 714 (1st Cir. 1998). The court's statement indicates that the key factor in determining coverage is whether the person seeking protection collects information with the intent to spread it to the public. Many online publishers and non-traditional journalists could fit into this category.
What Information is Protected?
The reporter's privilege protects the identity of your sources, as well as information that might lead to the identification of sources. You do not have to promise confidentiality to be covered by the privilege, but courts give greater protection when the source is confidential. In some circumstances, the reporter's privilege may also protect unpublished information obtained or prepared in the course of newsgathering.
How Strong is the Protection?
The federal reporter's privilege is qualified. That means that, even if you are protected by the privilege, a court or other legal body may order disclosure of the information in question upon a sufficient showing of need by the party seeking the information. As part of this protection, a court may require the party seeking information from a reporter to try to get the information elsewhere first.
The reporter's privilege applies in both civil and criminal cases, but the privilege is weaker in criminal cases. In a decision dealing with government subpoenas directed at an oral history research project at Boston College (the "Belfast Project") in aid of a criminal investigation in the United Kingdom, the First Circuit interpreted Branzburg as holding that “the fact that disclosure of the materials sought by a subpoena in criminal proceedings would result in the breaking of a promise of confidentiality by reporters is not by itself a legally cognizable First Amendment or common law injury.” In re Dolours Price, F.3d at 16. In a subsequent decision in the same case, U.S. v. Trustees of Boston College, 12-1236, 2013 WL 2364165 (1st Cir. May 31, 2013), the First Circuit held that the Supreme Court's balancing of interests in Branzburg allowed the government to obtain production of materials relevant to the UK criminal investigation notwithstanding concerns about source confidentiality, while allowing judges to deny access to materials not deemed relevant. The First Circuit further held that Branzburg allowed for a different balancing of interests in civil cases and other situations factually distinct from the criminal investigation in Branzburg, including allowing a court to require the government to demonstrate a higher degree of "direct relevance" to obtain materials that would disclose source identities.
It is also available when you are a party to the lawsuit in question (i.e., you are suing someone or being sued), but the privilege is also weaker in these circumstances, and successful assertion of the privilege may make it difficult for you to make out your case.
For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 1st 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.