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 (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 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.