Maine Enacts State Shield Law [1]

Last Friday, Maine enacted a state shield law to protect journalists from disclosing the identity of a confidential source or source material that the journalist obtained or received during the newsgathering process. See 16 Me. Rev. Stat. §61 [2] (click on the "webpage" link under the "Final Disposition" section). However, the law does not give journalists an absolute privilege against disclosing this type of information. A court may order disclosure of covered information if a party seeking disclosure as part of a civil or criminal case can show the following things:

• the information is "material and relevant" to the case;
• the information is "critical or necessary" to the party's claim or defense;
• the information cannot be obtained from "any alternative source or cannot be obtained by alternative means or remedies less destructive of First Amendment rights"; and
• disclosure satisfies an "overriding public interest.

Unfortunately the law left out language that appeared in an earlier version [2] of the bill (click on the "Bill Text" link), which defined the term "journalist" to include non-traditional journalists and (potentially) other online publishers. The newly enacted law leaves out this definition "to allow the court to determine on a case-by-case basis whether a person claiming the protection from compelled disclosure is eligible for such protection." We'll have to wait for the courts to determine who is entitled to the shield law's protections.