Note: This page covers information specific to Virginia. See the section on Protecting Sources and Source Material for more general information.
Virginia does not have a shield law. Nevertheless, there may be other legal grounds for protecting your sources and source material in Virginia.
Federal and state courts in Virginia 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 It applies to the identity of sources and unpublished information collected or prepared during newsgathering, whether or not the information is confidential.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.
Virginia courts do not recognize a common law or state constitutional privilege for journalists.
Constitutional Protection in State and Federal Court
Federal courts in the Fourth Circuit, which encompasses Virginia, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. Virginia state courts have followed the federal courts in adopting the reporter's privilege. The precise scope of the privilege is unclear.
Who is protected?
The courts have not expressly defined who is a "reporter" for purposes of the privilege, although they have applied the privilege to reporters and editors in traditional forms of media, including small and large newspapers. The CMLP is not aware of any federal or state cases in Virginia applying the privilege in an online context. Therefore, whether amateur and non-traditional journalists publishing online can take advantage of the privilege is an open question.
What information is protected?
The courts have not defined with precision what information is protected by the reporter's privilege. As a general matter, it appears to cover the identity of sources and unpublished information, both confidential and non-confidential, but the privilege is stronger with regard to confidential information.
How strong is the privilege?
The reporter's privilege is qualified, which means that a court may order you to reveal information covered by the privilege if the requesting party's need for it outweighs the policies favoring a privilege. In civil cases, in order to order disclosure, a court must find each of the following to be true:
- The information is relevant;
- The information cannot be obtained by alternative means; and
- There is a compelling interest in the information.
In criminal cases, the shield may only apply with regard to confidential information. As a practical matter, 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.