Note: This page covers information specific to Pennsylvania. See the section on Protecting Sources and Source Material for more general information.
Pennsylvania has a shield law that may protect the identity of your confidential sources. It applies to confidential sources and information that would lead to the identity of a confidential source. If the shield applies to you, its protection is absolute, meaning that a court may not order you to disclose the covered information regardless of need of the party seeking it and the competing interests at stake. However, the shield law may only cover individuals working in the traditional news media.
Federal and state courts in Pennsylvania recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. It applies to the identity of sources and unpublished information collected or prepared during newsgathering, whether or not the information is confidential. The privilege is qualified, meaning the party seeking information can overcome the privilege upon a sufficient showing of need.
In addition, 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.
Pennsylvania courts do not recognize any common law privilege for journalists.
Source and Statutory Text
Pennsylvania's shield law, located at 42 Pa. Cons. Stat. § 5942 (scroll down to find § 5942), states in relevant part:
(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.
Who is Covered?
The Pennsylvania shield law applies to individuals working in a news-related capacity ("gathering, procuring, compiling, editing or publishing") for a "any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation." The law only applies to those working for a radio or television stations if they keep transcripts of their broadcasts going back one year.
The language of the statute suggests that it covers only those working in traditional media. That said, the CMLP is not aware of any Pennsylvania cases interpreting the language of the statute in an online context, and it is possible that a court could construe this language to include websites and other online platforms for publishing information and commentary. See, e.g., O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006) (interpreting similar statutory language in California shield law as covering online news website). One could argue that the listed media should encompass online analogs like news websites, e-zines, web radio, podcasts, and videocasts. The transcript requirement might apply to online analogs of radio and television.
There is no requirement that you earn money from your news-related activities in order to enjoy the protection of the shield law.
What Information is Protected?
Pennsylvania's shield law protects the identity of confidential sources and information that might reasonably lead to the discovery of a confidential source's identity. It does not protect other unpublished information collected or prepared in the newsgathering process, such as notes and outtakes that would not reveal the identity of a confidential source.
How Strong is the Protection?
Pennsylvania's shield is absolute, which means that, if the shield law covers you (above), then a court may not order you to reveal the identity of a confidential source or turn over material that would reveal a confidential source's identity, regardless of the requesting person's need for the information. The law applies equally in criminal and civil cases, and when you are a party to the case in question (e.g., you are suing someone or being sued).
For more detailed information about the Pennsylvania shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Pennsylvania.
Constitutional Protection in State and Federal Courts
Federal courts in the Third Circuit, which encompasses Pennsylvania, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. Pennsylvania state courts have followed the federal courts in adopting the reporter's privilege and defining its character and scope. The reporter's privilege applies to the identity of sources, information that would lead to a source's identification, and unpublished materials collected or prepared during newsgathering.
Who is Covered?
To obtain the protection of the reporter's privilege, you must demonstrate that
- You are engaged in investigative reporting;
- You are gathering news; and
- You have the intent, when starting to gather news, to disseminate information to the public.
Many online publishers and non-traditional journalists should be able to establish these three requirements. The "investigative reporting" requirement might present an obstacle for some, but in that case you wouldn't have any documents or sources to protect. It is hard to imagine a situation where you would have gathered sources and other information that would not fit the term "investigative reporting."
What Information is Protected?
The reporter's privilege protects the identity of sources, information leading to identification of a source, and unpublished information collected or prepared during newsgathering. While the source or information need not be confidential in order to receive protection, the privilege is stronger when confidential information is at stake.
How Strong is the Protection?
The reporter's privilege is qualified, which means that courts may order you to disclose information if the requesting person's need for the information outweighs the policies favoring a privilege. To determine whether ordering disclosure is appropriate in a given situation, the courts apply a balancing test considering the media's interests in protecting the information, the relevance of the material sought, and whether the source was confidential. The results of this kind of balancing test would be different depending on the facts of the particular case.
The courts are more inclined to order you to reveal information when it is sought in connection with a criminal case rather than in a civil case. They also are more likely to order you to reveal information when you are a party to the case in question.
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.