As State Shield Laws Play Tug-of-War, the Dream of a Federal Shield Law Resurfaces

Shield LawA recent challenge to a subpoena for a New York reporter's confidential source highlights the risks journalists face when different state shield laws clash. Although uniform state shield laws would reduce uncertainty for reporters on the state court level, a solution to varying federal court tests may appear in the form of a federal shield law.

Fox News reporter Jana Winter has been subpoenaed in connection with her report on the Aurora, Colorado movie theatre shooting of July 2012. Winter was one of the first to report on a notebook owned by suspect James Holmes that allegedly contains details of Holmes's planned attack. Winter's report included allegations that the notebook was sent to a physiatrist prior to the tragic mass shooting. In December 2012, Holmes's defense attorneys accused Winter of violating a gag order that had been put in place to avoid any leaks that may negatively affect their client's case.

Now, New York State's Appellate Division is hearing an appeal about whether Winter must comply with a subpoena to divulge confidential sources from her report. The court's decision will address whether Winter is permitted to remain under the protection of New York's shield law or be forced to testify under Colorado's comparatively weaker shield law.  In balancing a court order that Winter must testify against the value the public may gain by shielding her from testifying, Winter's situation demonstrates that journalists can be left without clear guidance to face conflicting state shield laws.

To date, 49 states and the District of Columbia have passed some form of a shield law or recognize some level of privilege for reporters. While this majority number may seem comforting to American journalists, great disparity among the protection afforded by these state shield laws has led to conflict -- as demonstrated by Winter's being caught between jurisdictions. An analysis of New York's shield law and Colorado's shield law highlights how conflicts could be avoided by more uniform state shield laws across the country.

Both New York's shield law and Colorado's shield law pull from the leading U.S. Supreme Court case in this area, Branzburg v. Hayes, which held that reporters have a duty to respond to relevant questions put to them during a grand jury investigation and the First Amendment may not be used as a defense for reporters summoned to testify in court. Justice Powell's often-cited concurrence emphasizes the importance of balancing freedom of press and the obligation of all citizens to give testimony. New York and Colorado both reacted to the Supreme Court's holding in Branzburg by establishing a statutory privilege, but took different measures. In placing the two side-by-side, it is clear that New York's shield law -- which provides absolute protection for confidential information and related material gathered by a journalist -- provides its journalists more protection than Colorado's shield law.

For example, there are the clear differences in the statutory exceptions to shield law protection through which a court can require disclosure. New York law grants an exception to a party seeking a subpoena for a journalist to testify if the party "has made a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source."  By contrast, the Colorado provides comparatively less protection to journalists because the shield law exceptions are far broader. Nondisclosure exceptions require that the party issuing the subpoena show, by a preponderance of the evidence, that the news information is: "(1) directly relevant to a substantial issue involved in the proceeding; (2) cannot be obtained by any other reasonable means; and (3) that a strong interest of the party seeking to subpoena the newsperson outweighs the interests under the First Amendment to the United States Constitution." (Emphasis added.) Further, the Colorado shield law permits an exception for a search warrant that is in compliance with the federal Privacy Protection Act of 1980.

Whereas New York provides journalist protection unless the news is "critical or necessary" to a claim, Colorado only needs a party to show the information is "directly relevant."  New York state courts have interpreted "critical or necessary" to include unpublished news that would cause the claim to “virtually rise[] or fall[] with the admission or exclusion of the proffered evidence.” Alternatively, Colorado's Supreme Court emphasizes Branzburg's balancing test in interpreting "directly relevant" and gives no clear definition of where the line is drawn with respect to either what is "direct" or what is "relevant." Colorado case law has held that "directly relevant" can come down to information that bears "so directly on substantial elements of plaintiff's claim" such that a breach of shield law may be permissible, but "[e]ach case must rest on its own unique facts."

Likewise, New York permits intrusion when the information "is not obtainable" from another source, and Colorado's law permits intrusion if the information sought "cannot be obtained by any other reasonable means." For Colorado, reasonable means can be demonstrated to the court if no other "reasonably available" sources exist and all other "reasonably available sources" have been exhausted.

Meanwhile, on the federal side, some federal courts apply the reasoning from Branzburg to create a form of quasi shield law protection. For example, the 1st Circuit has interpreted First Amendment rights to grant journalists and others some protection in federal courts. The 2nd Circuit has leaned heavily on Justice Powell's concurrence in Branzburg; both the 2nd Circuit and the 3rd Circuit have cited a reporters' privilege as a "federal common law privilege" available to journalists to refuse to divulge their sources. So, while federal courts look to Branzburg, reasoning among the circuits, like in the states, seems scattered and is hardly uniform.

But at least on the federal level, some level of uniformity may be created by the enactment of a federal shield law. A federal shield law is hardly a novel idea. Rumblings began in the early 1970's, and the idea of a federal shield law has resurfaced time and time again. It seems that each time, history intervenes and the federal shield law falls to the wayside. A recent shield law resurgence occurred back in 2009, and history intervened once again. This time, the movement was hindered by WikiLeaks, which caused many would-be voting senators to back down from supporting the federal shield law in the face of a federal investigation into WikiLeaks and the national security risks it posed.

The 2009 proposal was also delayed by the question of how a federal shield law might protect non-traditional media outlets, such as blogs. The line may be blurred further when considering whether a federal shield law would protect those who typically may not be thought of as a textbook "journalist." Would there be a credentialing process upon which judges would rely? Or would freedom of the press be limited to only household media names? Could the judge's possible bias, or at least lack of expertise in new media, affect the cases to which he or she applies the federal shield law? 

Senator Charles Schumer has been pushing for a federal shield law since 2009. Although the Obama administration opposed the 2009 law, in May 2013, Obama publically advocated for Senator Schumer's proposed legislation. On May 16, 2013, Schumer released his proposal for the "Free Flow of Information Act of 2013." He discussed the amended bill but during an interview with CBS's "Face the Nation" on May 26, 2013, describing how the law may function. Recognizing the continuous tension between the two conflicting issues -- the importance of protecting private government information against the freedom of the press -- Schumer said his new shield law bill would place the decision in the hands of a judge. For instance, if a government official wanted to get source information from a journalist, that official would first need to take the matter to court. "[A] judge will impose a balancing test, which is more important, the government's desire to keep the information to find out who leaked the information or the robust freedom of the press," Schumer said.

Although a federal shield law would provide consistency in federal courts, it would likely do little to help a journalists like Jana Winter who struggle against non-uniform state shield laws. Sen. Schumer's current proposal is limited to protecting against the compelled disclosure of sources by federal judicial or executive entities, or by federal administrative agencies, in relation to issues arising under federal law. Even in federal court, some journalists may actually find themselves preferring existing protection found by a federal court under the First Amendment to a federal shield law, as a statute may not grant them as broad of protection as current constitutional doctrine. Those journalists that cover national security, for example, might not receive any protection under a federal shield law simply because of their chosen line of work.

The harm caused by lenient shield laws and frequent subpoenas is evident: the journalism industry suffers from a chilling effect as anonymous sources become be more hesitant to step forward with information. Because journalists work to serve the public, this chilling effect would jeopardize public interest. Yet, in balancing these concerns against worries of damage to national security, it is difficult to place two much-valued American ideals in competition: freedom of the press and national security.

Meanwhile, as the James Holmes trial continues, the Reporters Committee for Freedom of the Press filed an amici curiae brief in support of Winter in the New York case. The brief expresses public policy concern about the ramifications of Winter's subpoena, arguing that the subpoena may chill future sources from providing valuable information to journalists on issues of public interest. On June 24, 2013, Holmes's attorneys filed for an extension for a supplemental brief about Winter's motion to squash the subpoena.

As Winter's case focuses the public eye on the conflict that can occur when state shield laws go head to head, the question of uniformity among the states surfaces. A federal shield law would serve as a baseline under which journalists would be protected in federal court; perhaps a uniform state shield law could do the same at a state level? Such uniformity would prove a true victory for those reporters, like Winter, caught up in a multi-state shield law tug-of-war.

Samantha Scheller is an intern at the Digital Media Law Project and a rising 2L at the University of North Carolina School of Law. She believes Captain America would approve of a federal shield law.

(Image courtesy of Wikipedia France user Midnight68.)


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