Note: This page covers information specific to Arizona. See the section on Protecting Sources and Source Material for more general information.

There are four potential legal bases for protecting your sources and source material in Arizona: the Arizona Press Shield Law, the Arizona Media Subpoena Law, the United States Constitution, and the federal Privacy Protection Act.

The Arizona Press Shield Law protects the identity of confidential sources of information obtained during the newsgathering process. Information that is not related to the identity of confidential sources is not covered by the Press Shield Law.

The Arizona Media Subpoena Law sets forth six requirements that must be met before a party can subpoena a journalist to testify or produce documentary evidence relating to her newsgathering activities in a civil or criminal trial. If the requirements of the Media Subpoena Law are not met, the journalist cannot be compelled to testify about matters related to her newsgathering activities or produce documentary evidence, regardless of whether that testimony or evidence involves confidential sources or not.

The U.S. Constitution may protect you from having to disclose the identity of sources or information collected during newsgathering. Federal and state courts in Arizona recognize a qualified reporter’s privilege based on the First Amendment to the U.S. Constitution. The reporter’s privilege applies to the identity of sources and unpublished information collected or prepared in newsgathering, whether confidential or not (although protection is stronger for confidential information). Because it is qualified, the party seeking information from a reporter may overcome it upon a strong showing of need.

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.

Arizona has no other sources of law that offer you protection from disclosing information.

Arizona Press Shield Law

Source and Text

The Arizona Press Shield Law is codified at A.R.S. § 12-2237. It provides:

A person engaged in newspaper, radio, television or reportorial work, or connected with or employed by a newspaper, radio or television station, shall not be compelled to testify or disclose in a legal proceeding or trial or any proceeding whatever, or before any jury, inquisitorial body or commission, or before a committee of the legislature, or elsewhere, the source of information procured or obtained by him for publication in a newspaper or for broadcasting over a radio or television station with which he was associated or by which he is employed.

Who is Protected?

The Court of Appeals of Arizona has stated that Arizona’s Press Shield Law protects “members of the media.” Matera v. Superior Court, 170 Ariz. 446, 449 (Ariz. Ct. App. 1992). The court of appeals has expressly declined to expand the privilege beyond “‘journalists in the traditional sense of that term’” to “anyone who is engaged in gathering and publishing information which is of topical and widespread interest.” Id. at 450 (quoting von Bulow v. von Bulow, 811 F.2d 136, 143 (2d Cir. 1987)). We are not aware of any decisions applying the Press Shield Law in an online context. The limitation of the statute to sources of information obtained for publication in a newspaper or on radio or TV makes application of the statute to online publications unlikely, unless the information is intended for publication in both online and traditional media. Nevertheless, whether journalists publishing news in online outlets would be considered “journalists in the traditional sense of that term” under the law is technically an open question.

What Information is Protected?

The Arizona Press Shield Law protects journalists “from being compelled to testify about or otherwise disclose confidential sources utilized during the newsgathering process.” Matera, 170 Ariz. at 449. This protection is absolute.

The Court of Appeals of Arizona has specified that the Press Shield Law “does not protect all activities of would-be publishers or newsgatherers, nor does it protect any and all information gathered.” Id. at 449-50. Information that is not related to the identity of confidential sources is not covered by the Press Shield Law.

The Press Shield Law applies broadly, “in a legal proceeding or trial or any proceeding whatever, or before any jury, inquisitorial body or commission, or before a committee of the legislature, or elsewhere.” A.R.S. § 12-2237. By its terms, the statute does not distinguish between civil or criminal trials, grand jury proceedings, or other legal proceedings.

Waiver of the Press Shield Law

Arizona courts have not definitely determined whether the protections of the Press Shield Law can be waived. However, in one case, Flores v. Cooper Tire and Rubber Co., 218 Ariz. 52 (2008), the Court of Appeals of Arizona assumed without deciding that the protections of the Press Shield Law can be waived and elaborated on what may constitute a waiver.

The Court stated that situations in which the Press Shield Law may be waived will be construed narrowly. Id. at 59. If a media entity seeks to use the Press Shield Law as “both a sword and shield,” Arizona courts may find the privilege waived. Id. at 58. In other words, if a party seeks both affirmative relief and attempts to use the Press Shield Law to withhold privileged information, the privilege may be waived. Id. The Court has also specified, however, that seeking a declaratory judgment, as opposed to damages or an injunction, will not cause a waiver of the Press Shield Law protections. Id. In short, the Court has stated that waiver may occur “‘when the conduct . . . places the claimant in such a position, with reference to the evidence, that it would be unfair and inconsistent to permit the retention of the privilege.’” Id. (quoting Throop v. E.F. Young & Co., 94 Ariz. 146, 158 (1963)).

The Arizona Court of Appeals has also held that the disclosure of partial information will not waive the privilege as to all information gathered on the same subject matter. Id. at 59. For example, identifying a confidential source as a “whistle blower” does not waive the privilege as to the actual identity of the source. Id.

Arizona Media Subpoena Law

Source and Text

The Arizona Media Subpoena Law is codified at A.R.S. § 12-2214. It provides:

1. A subpoena for the attendance of a witness or for production of documentary evidence issued in a civil or criminal proceeding and directed to a person engaged in gathering, reporting, writing, editing, publishing or broadcasting news to the public, and which relates to matters within these news activities, shall have attached to it an affidavit of a person with a direct interest in the matters sought which states all of the following:
   1. Each item of documentary and evidentiary information sought from the person subpoenaed.
   2. That the affiant or his representative has attempted to obtain each item of information from all other available sources, specifying which items the affiant has been unable to obtain.
   3. The identity of the other sources from which the affiant or his representative has attempted to obtain the information.
   4. That the information sought is relevant and material to the affiant’s cause of action or defense.
   5. That the information sought is not protected by any lawful privilege.
   6. That the subpoena is not intended to interfere with the gathering, writing, editing, publishing, broadcasting and disseminating of news to the public as protected by the first amendment, Constitution of the United States, or by article II, section 6, Constitution of Arizona.
2. A subpoena served on a person described in subsection A without the required affidavit attached to it has no effect.
3. If the affidavit is controverted or a motion to quash the subpoena or for a protective order is filed by the person subpoenaed, the command of the subpoena shall be postponed until a hearing is held and an order is entered by the court. After the hearing the command of the subpoena shall be carried out in accordance with the order of the court.
4. This section does not apply to a subpoena for the attendance of a witness or the production of documentary evidence issued by or on behalf of a grand jury or a magistrate during an investigative criminal proceeding.

Who is Protected?

The Media Subpoena Law applies to a “person engaged in the gathering, reporting, writing, editing, publishing or broadcasting news to the public.” A.R.S. § 12-2214.

The Court of Appeals of Arizona has held that the Media Subpoena Law applies only to those people “who gather and disseminate the news on an ongoing basis as part of the organized, traditional, mass media.” Matera, 170 Ariz. at 448. Specifically, the Court has held that it does not apply to authors of non fiction books, including non fiction books about newsworthy recent events. Id. at 447, 448.

What is Protected?

The Media Subpoena Law is not a shield law. The statute “was not designed to protect the information collected, but rather was designed to aid a specific class of persons – members of the media – in performing their jobs free from the inconvenience of being used as surrogate investigators for private litigants.” Matera, 170 Ariz. at 448.

As a result, the statute is not an absolute bar on subpoenaing journalists to testify or about matters related to their news gathering or requiring them to provide news gathering product, such as videotape or pictures. Instead, the person issuing the subpoena must fulfill several requirements. If those requirements are met, the Media Subpoena Law will not protect the journalist from testifying. However, if the requirements are not met, the subpoena will have no effect and cannot be used to compel a journalist to testify or produce documentary evidence for the court. A.R.S. § 12-2214(B).

How are the Requirements of the Media Subpoena Law Met?

The statute requires that the party seeking the information (i.e., the party requesting the subpoena) fulfill six requirements before the subpoena will be issued. He must show:

1. what information he seeks;
2. that he has attempted to obtain the information from other sources and has not been able to do so;
3. the identity of the other sources from which he has attempted to obtain the information;
4. that the information is relevant and material;
5. that the information is not protected by any privilege; and
6. that the subpoena is not intended to interfere with the gathering, writing, editing, publishing, broadcasting and disseminating of news to the public. A.R.S. § 12-2214(A)(1)-(6).

The initial burden is on the party seeking the information to show compliance with parts (A)(1) through (A)(6) of the Media Subpoena Law. Bartlett v. Superior Ct. in and for Pima Cty., 150 Ariz. 178, 183 (1986). However, he does not need to show a “compelling need” or that he “cannot make his case without the information.” Id. Instead, he must “identify in reasonable detail in his affidavit the information sought, the efforts to obtain it and from what sources.” Id. To meet the requirements of (A)(4) through (A)(6), all that is required is the “affiant’s avowal, unless controverted.” Id.

If the party resisting the subpoena (i.e., the journalist) disputes the affidavit submitted by the party requesting the subpoena, the court must hold a hearing and determine whether the required showing has been made. Id. Until the hearing is held and the court enters an order, enforcement of the subpoena will be postponed. A.R.S. § 12-2214(C).

After the party seeking the information has complied with the six requirements, “the burden shifts to the party opposing the subpoena to controvert the allegations of the affidavit and to set forth the bases therefore.” Id. The party opposing the subpoena must provide specific bases for controverting the affidavit. For example, if he wishes to argue that the information sought could be obtained elsewhere, he must set forth “the manner in which previous efforts were deficient or other specific sources from which the information is available.” Id.

If the party opposing the subpoena alleges generally that the information is available from other sources, the court is not necessarily required to examine and review every other possible source of the information. Instead, if the party seeking the information avows that he has examined the other possible sources of information and found that the information is not available from those sources, this avowal will be sufficient. Id. In other words, the court will accept the word of the party seeking the information. If the party opposing the subpoena believes the information is in fact available from other sources, it is up to that party to review the other sources and “point out to the court where equivalent information could be found.” Id. Thus, while the court will not independently search the record to determine if information is available from other sources, it will review specific evidence pointed to by the party opposing the subpoena to determine if the information is available elsewhere.

For more detailed information about the Arizona Press Shield Law and Media Subpoena Law, see the Reporters Committee for Freedom of the Press’s Privilege Compendium: Arizona.

Federal Constitutional Reporter's Privilege in State Courts

The Court of Appeals of Arizona has recognized the existence of the federal constitutional privilege created by Branzburg v. Hayes, 408 U.S. 665 (1972), and its progeny. Matera, 170 Ariz. at 449. The Court has stated that the federal constitutional reporter’s privilege as created by Branzburg is limited to information regarding confidential sources or cases that “would seriously interfere with the news gathering and editorial process.” Bartlett, 150 Ariz. at 182.

The Court has also stated that the federal constitutional reporter’s privilege is the same as the privilege created by the Arizona Press Shield Law. According to the Court of Appeals of Arizona, “under Branzburg[,] the states and the federal courts have the freedom to create, expand, or restrict protection for publishers as they see fit.” Matera, 170 Ariz. at 449. Noting that Arizona’s Press Shield Law was enacted well before Branzburg, the Court has held that “[t]he constitutional privilege afforded to reporters in Arizona is codified at A.R.S. § 12-2237,” the Press Shield Law. Id. Accordingly, it is unlikely that you will be able to use the constitutional reporter's privilege as protection in the Arizona state courts if you are not covered by the Press Shield Law.

Federal Constitutional Reporter's Privilege in Federal Courts

Federal courts in the Ninth Circuit, which encompasses Arizona, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. An important case indicates that the privilege should protect a broad category of people engaging in newsgathering, stating that "what makes journalism journalism is not its format but its content." Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993). Although the law is not clear on this point, the privilege appears to protect the identity of sources and unpublished information, whether confidential or not. Protection likely is stronger, however, for confidential information.

The courts have applied the privilege in both civil and criminal cases, although its protection is stronger in civil cases. The courts have not upheld the privilege with respect to subpoenas issued in grand jury proceedings. The privilege is qualified, which means that a court may order you to reveal information if the need of the person seeking the information outweighs the policies favoring a privilege. The results of this kind of balancing test would be different depending on the facts of the particular case.

For additional information, see The Reporters Committee for Freedom of the Press's Privilege Compendium: 9th Circuit.

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 Legal Protections for Sources and Source Material.

 

Note: This page covers information specific to California. See the section on Protecting Sources and Source Material for more general information.

There are three potential legal bases for protecting your sources and source material in California: the California shield law, the United States Constitution, and the federal Privacy Protection Act.

The shield law protects the identity of sources (whether promised confidentiality or not), information that might lead to the identity of sources, and unpublished information obtained or prepared in the course of newsgathering activities. A leading California case has found that the shield law protects some -- but not necessarily all -- online publishers and amateur journalists (more below). The level of protection offered by the shield law depends on whether the case is a civil or criminal case and whether the person from whom information is sought is a party to the case or not. It does not protect you from disclosing information when you are a party to a civil or criminal case.

The U.S. Constitution may protect you from having to disclose the identity of sources or information collected during newsgathering. Federal and state courts in California recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. The reporter's privilege applies to the identity of sources and unpublished information collected or prepared in newsgathering, whether confidential or not (although protection is stronger for confidential information). Because it is qualified, the party seeking information from a reporter may overcome it upon a strong showing of need. Unlike the shield law, this privilege may apply even when you are a party to a civil lawsuit or criminal case.

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.

California has no other sources of law that offer you protection from disclosing information.

Shield Law

Source and Text

The California shield law is contained in the California Constitution, Cal. Const. art. I, § 2(b). An essentially identical shield law is also contained in California's Evidence Code, Cal. Evidence Code § 1070.

In relevant part, California's shield law states:

A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication . . . or any person who has been so connected or employed, shall not be adjudged in contempt [by a body with legal authority] for refusing to disclose the source of any information procured . . . or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. . . .

As used in this subdivision, 'unpublished information' includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.

Who is Covered?

California's shield law protects a person "connected with or employed upon a newspaper, magazine, or other periodical publication." In an important case, O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006), a California appellate court held that the shield law applies to persons gathering news for dissemination to the public, regardless of whether the publication medium is print or online. In that case, Jason O'Grady operated an "online news magazine" about Apple Computers. He published confidential information he received about a new Apple product. Apple wished to sue the person who divulged the confidential information to O'Grady and subpoenaed him for information about the identity of his confidential source. The court applied the shield law, and O'Grady did not have to identify his source.

The O'Grady case does not mean that all online publishers will benefit from the protection of the California shield law. The court indicated that the shield law protects newsgatherers, like O'Grady, who engage in "open and deliberate publication on a news-oriented Web site of news gathered by that site's operators." On the other hand, the court said the shield law might not protect "the deposit of information, opinion, or fabrication by a casual visitor to an open forum such as a newsgroup, chatroom, bulletin board service, or discussion group." The court expressly declined to decide whether the shield law applies to bloggers because of the "rapidly evolving and currently amorphous meaning" of the word "blog." Thus, the exact reach of the California shield law is unclear, but it arguably protects online publishers who gather and disseminate news to the public. The exact definition of "news" is uncertain, and future cases will no doubt determine its contours more precisely.

What Information is Protected?

California's shield law protects several types of information. First, it protects unpublished information obtained or prepared in the process of gathering information for communication to the public, including things like notes and outtakes. This unpublished information may be protected from disclosure regardless of whether you obtained it in confidence or not.

Second, it protects the identity of sources, whether confidential or not. The shield protects not only the identity of sources themselves, but also information that might lead to their identity.

Shield Law Protection in Different Contexts

The strength of protection offered by California's shield law varies based on the type of case and whether the person from whom information is sought is a party to the case:

• Civil cases in which the newsgatherer is a third party: Here, the shield law offers you absolute protection (assuming you are covered by the statute, an issue discussed above). If a party in a civil case issues a subpoena demanding the identity of your source or unpublished information, you cannot be held in contempt for refusing to reveal that information.


• Criminal cases in which the newsgatherer is a third party: Here, the strength of the shield depends on whether a prosecutor or a criminal defendant is seeking the information. Prosecutors generally cannot overcome the shield -- if a prosecutor seeks protected information from you, you generally will not be forced to reveal information if you are covered by the shield law (above). On the other hand, criminal defendants can sometimes overcome the shield. If a criminal defendant seeks information from you (again, assuming you were covered by the shield law), a California court would balance your privilege against the defendant's right to a fair trial. As a threshold matter, the criminal defendant would need to show "a reasonable possibility that the information [would] materially assist his defense." The court would then weigh four factors to determine whether to compel disclosure: (1) whether the information sought is confidential or sensitive, (2) the interests protected by the shield law, (3) the importance of the information to the defendant, and (4) whether alternative sources for the information exist. The results would be different depending on the facts of the particular case.


• When the newsgatherer is a party to a case: When you are a party to a case, the law still protects you from being held in contempt for refusing to disclose the identity of your source and/or unpublished newgathering information, but this provides little protection because contempt is not the only remedy available to the court to force you to disclose information.  For instance, if you refuse to disclose information, the court could enter judgment against you.

For more detailed information about the California shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: California.

Federal Constitutional Reporter's Privilege in State Courts

Even when California's shield law is inapplicable, a newsgatherer still may receive some protection based on the First Amendment of the U.S. Constitution. As discussed above, California's shield law does not protect parties to civil and criminal cases. However, California's state courts have found that the First Amendment provides newsgatherers with a qualified privilege against disclosure of confidential sources and information provided by confidential sources, even when they are parties to the case in which information is sought. In applying the qualified privilege, a court will balance the need of the person seeking information and the public interest in disclosure against the public interest in an uninhibited press.

Before ordering disclosure of the identity of confidential sources or information provided by confidential sources, California state courts balance five factors: (1) whether the reporter is a party to the litigation; (2) the importance of the information to the case; (3) whether other sources for the information are available; (4) the importance of protecting confidentiality; and (5) the strength of the case of the party seeking disclosure. It is not clear whether California courts would extend this protection to those publishing news through non-traditional media.

Federal Constitutional Reporter's Privilege in Federal Courts

Federal courts in the Ninth Circuit, which encompasses California, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. An important case indicates that the privilege should protect a broad category of people engaging in newsgathering, stating that "what makes journalism journalism is not its format but its content." Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993). Although the law is not clear on this point, the privilege appears to protect the identity of sources and unpublished information, whether confidential or not. Protection likely is stronger, however, for confidential information.

The courts have applied the privilege in both civil and criminal cases, although its protection is stronger in civil cases. The courts have not upheld the privilege with respect to subpoenas issued in grand jury proceedings. The privilege is qualified, which means that a court may order you to reveal information if the need of the person seeking the information outweighs the policies favoring a privilege. The results of this kind of balancing test would be different depending on the facts of the particular case.

For additional information, see The Reporters Committee for Freedom of the Press's Privilege Compendium: 9th Circuit.

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 Legal Protections for Sources and Source Material.

 

Note: This page covers information specific to the District of Columbia. See the section on Protecting Sources and Source Material for more general information.

The District of Columbia has a shield statute that may protect your newsgathering material from forced disclosure. The shield law protects both the identity of sources and unpublished information collected or prepared in the newsgathering process, such as notes and outtakes. The protection for the identity of sources is "absolute," meaning there are no exceptions to the law's protection. On the other hand, protection for unpublished information is "qualified," meaning it will not provide protection in all circumstances. The shield protects those who are "employed by the news media" (definition below), so it may not protect some amateur journalists and others who publish informally and/or sporadically.

In addition, federal courts in the D.C. Circuit have recognized a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. This qualified privilege protects a broad category of individuals collecting information for dissemination to the public, and it protects both the identity of sources and unpublished information.

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.

The District of Columbia has no other sources of law that offer you protection from disclosing information.

Shield Law

Source and Statutory Text

The District of Columbia has a shield law, titled the Free Flow of Information Act, D.C. Code § 4701-4704. You can see the four parts of D.C.'s shield law below, with excerpts of important text.

• D.C. Code § 16-4701. Definitions. - Defines who is included in the statute's coverage.

For the purpose of this chapter, the term "news media" means . . . [a]ny printed, photographic, mechanical, or electronic means of disseminating news and information to the public.

• D.C. Code § 16-4702. Compelled disclosure prohibited. - Provides the general rule prohibiting legal bodies from forcing disclosure of information.
  

• D.C. Code § 16-4703. Compelled disclosure permitted. - Sets out the exceptions to the law's general rule against forced disclosure.
  

• D.C. Code § 16-4704. Activities not constituting a waiver. - States that publication or discussion of confidential information does not eliminate the law's protection.

Who is Covered?

The D.C. shield law applies to information obtained by any person "while employed by the news media." In addition to traditional news media formats like newspapers, magazines, and television, the term "news media" also covers the broader category of "any printed, photographic, mechanical, or electronic means of disseminating news and information to the public." So, the "news media" clearly encompasses those engaging in online publishing of news and information.

The key question for many online publishers, therefore, will be whether they are "employed" in online publishing. There is no law specifically addressing this point in the online or non-traditional journalism context. But generally the law does not seem to require traditional employment by an organization. For instance, one case, Prentice v. McPhilemy, Case No. 98-CA-0004309 (D.C. Super. Ct. May 5, 1999), held that an author working on his own to write a book was covered by the statute. However, the law may require some kind of income or payment in return for your activities. This "employment" requirement could present an obstacle to some amateur journalists and others who publish independently, informally and/or sporadically and who do not make money from their activities.

What Information is Protected? How Strong is the Protection?

D.C.'s shield law protects two categories of information, which are protected to different degrees:

Identity of Sources: D.C.'s shield law protects "the source of any news or information." The shield protection is absolute -- under no circumstances can courts compel someone covered by the statute (above) to divulge the identity of a source. It protects you whether or not you promise confidentiality to the source in question. The shield applies equally in criminal and civil cases. It also applies whether or not the newsgatherer is a party to the case in which information is sought.

Unpublished information: D.C.'s shield law protects information gathered or prepared for a story, post, or other work, which is not ultimately published. The shield covers all types of materials, whether written, audio, video, or any other format. It applies in both criminal and civil cases, and it applies whether or not the newsgatherer is a party to the case in which information is sought.

The protection offered by the D.C. shield law to unpublished information is qualified, which means that a court may force you to reveal it under certain circumstances, even if you are covered by the statute (above). In order to compel disclosure of unpublished information, a court or other legal body must find that three conditions are met: (1) the news or information is relevant to a significant legal issue; (2) the news or information could not, with due diligence, be obtained by any alternative means; and (3) there is an overriding public interest in the disclosure. ("Due diligence" is a legal term that generally refers to a reasonable amount of effort.)

The results of this kind of balancing test would be different depending on the facts of the particular case. Courts may be particularly inclined to order disclosure when the person trying to protect information is a party to the lawsuit in question, or when a criminal defendant seeks information to mount a defense.

For more detailed information about the D.C. shield law, see the Reporters Committee for Freedom of the Press' Privilege Compendium: D.C..

Federal Reporter's Privilege

Federal courts in the D.C. Circuit have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. This qualified privilege applies to the identity of sources and unpublished information collected during newsgathering.

Who is Covered?

Although the law is not entirely clear on who may take advantage of the federal reporter's privilege, federal courts in D.C. have taken a broad view of who qualifies as a "reporter" or "journalist."

In one case, a federal district court characterized the law as follows: "an individual successfully may assert the journalist's privilege if he is involved in activities associated with gathering and dissemination of news, even though he may not ordinarily be a member of the institutionalized press." Under this view, the party claiming the reporter's privilege must introduce competent evidence to show that he or she had an "intent to use material -- sought, gathered, or received -- to disseminate information to the public and that such intent existed at the inception of the newsgathering process." Alexander v. FBI, 186 F.R.D. 21, 50 (D.D.C. 1998).

In another case, a court upheld the claimed privilege of an individual who published his own biweekly newsletter on U.S. political and social movements. The court explained that "the privilege is not limited to the writers of large established newspapers and media enterprises but is equally applicable to the sole publisher of a newsletter or other writing or paper distributed to the public to inform, to comment, or to criticize." Liberty Lobby, Inc. v. Rees, 111 F.R.D. 19, 20 (D.D.C. 1986). It would be possible to draw an analogy between this kind of newsletter and an independently published blog or website.

These cases provide strong support for the argument that a amateur and non-traditional journalists, including those who publish online, are protected by the federal reporter's privilege in D.C.

What Information is Protected?

In D.C., the federal reporter's privilege protects both the identity of sources and unpublished information collected during newsgathering. With regard to sources, the privilege applies whether or not you promise confidentiality to a source. However, when you do not promise confidentiality to a source, the privilege may be weaker, and a court may be more willing to require disclosure.

Strength of the Privilege

In D.C., the federal reporter's privilege is qualified, meaning that a party seeking information can overcome it upon a proper showing of need. The federal courts are most likely to uphold the reporter's privilege in a civil case where the person invoking the privilege is not a party to the lawsuit. In contrast, courts are more likely to order disclosure of information in a criminal case where the criminal defendant is seeking information from a reporter to help mount his/her defense.

For additional information, see the Reporters Committee for Freedom of the Press' Privilege Compendium: D.C. Circuit.

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.

Note: This page covers information specific to Florida. See the section on Protecting Sources and Source Material for more general information.

Florida has a shield law that may protect your sources and newsgathering materials. It protects both the identity of sources and unpublished information acquired or prepared during newsgathering, such as notes and outtakes. However, the protection extends only to "professional journalists" and appears to be limited to traditional media formats.

Nevertheless, even if you do not qualify for Florida's shield law, you may still be able to protect your sources and source material. Both prior to and after the passage of the shield law, Florida courts have confirmed that a common law privilege protects the identity of a journalist's sources and source materials. This common law privilege may offer protection for amateur and non-traditional journalists.

In addition, federal courts in the Eleventh Circuit, which encompasses Florida, recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. However, the scope of this privilege is uncertain.

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.

Shield Law

Source and Statutory Text

Florida's shield law, located at Fla. Stat. § 90.5015, states in relevant part:

(1) DEFINITIONS . . . (a) "Professional journalist" means a person regularly engaged in collecting, photographing, recording, writing, editing, reporting, or publishing news, for gain or livelihood, who obtained the information sought while working as a salaried employee of, or independent contractor for, a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine. Book authors and others who are not professional journalists, as defined in this paragraph, are not included in the provisions of this section.

(2) PRIVILEGE.--A professional journalist has a qualified privilege not to be a witness concerning, and not to disclose the information, including the identity of any source, that the professional journalist has obtained while actively gathering news. This privilege applies only to information or eyewitness observations obtained within the normal scope of employment and does not apply to physical evidence, eyewitness observations, or visual or audio recording of crimes. A party seeking to overcome this privilege must make a clear and specific showing that: (a) The information is relevant and material to unresolved issues that have been raised in the proceeding for which the information is sought; (b) The information cannot be obtained from alternative sources; and (c) A compelling interest exists for requiring disclosure of the information.

. . .

(4) WAIVER.--A professional journalist does not waive the privilege by publishing or broadcasting information.

Who is Covered?

Florida's shield law applies only to "professional journalists." To qualify for the shield law's protection, you must be acting as an employee or independent contractor for "a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine." Book authors are specifically excluded from protection. The CMLP is not aware of any Florida cases addressing whether an employee or independent contractor for an online news publication is covered by the statute, but the language of the statute makes such coverage doubtful. In addition, the "professional journalist" requirement would likely exclude from coverage many types of amateur and non-traditional journalists who do not receive payment for their work.

What Information is Protected?

Florida's shield law extends to both the identity of sources and unpublished information gathered and prepared in the course of newsgathering, such as notes and outtakes. The statute excludes from its protection physical evidence, eyewitness accounts, or recordings of crimes. The shield law protects the identity of a source whether or not you promise confidentiality to the source in question. Publication of some information on a topic does not constitute a waiver of the privilege with respect to that topic.

How Strong is the Protection?

The shield law provides a qualified privilege, which means that a court may force you to reveal information in some circumstances, even if you are covered by the statute (above). In order to compel disclosure of the identity of an anonymous source or unpublished information, a court or other legal body must find that three conditions are met: (1) the information is relevant and material to unresolved issues in the case; (2) the information cannot be obtained from alternative sources; and (3) a compelling interest exists for requiring disclosure of the information. The results of this kind of balancing test would be different depending on the facts of the particular case.

The same test applies in criminal and civil cases and whether or not you are a party to the lawsuit. As a practical matter, courts may be particularly inclined to order disclosure when the person trying to protect information is a party to the lawsuit in question or when a criminal defendant seeks information to mount a defense.

For more detailed information about the Florida shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Florida.

Common Law Privilege

The Florida common law (i.e., judge-made law) may protect you from having to disclose information even if the shield law does not. Unlike in some other states, where shield laws eliminated common law protections for newsgatherers, the Florida shield law explicitly preserves common law protections. Additionally, the Florida Supreme Court has continued to recognize a common law privilege after enactment of the shield law.

Who is Protected?

Florida courts have not indicated specifically who is protected by the common law privilege for newsgatherers. There are at least some indications that the common law will protect people that the shield law does not. For instance, while the shield does not protect book authors, a Florida court has held that the common law privilege covers them. Florida v. Trepal, 24 Media L. Rep. 2595, 2596 (Fla. Cir. Ct. 1996). It is not clear how this precedent would translate into an online or amateur-journalism context.

What Information is Protected?

The common law privilege applies to the identity of sources and information collected in the course of newsgathering, and it applies whether or not you promise confidentiality to a source. Like the shield law, the common law privilege does not apply to eyewitness observations or physical evidence of a crime.

How Strong is the Protection?

The Florida common law privilege is a qualified privilege. If the you and your information fit within its scope, then a court will only order you to disclose information on if it finds: (i) the information is relevant and significant to unresolved issues in the case; (ii) the information cannot be obtained from other sources; and (iii) a compelling interest exists for requiring disclosure. The results of this kind of balancing test would be different depending on the facts of the particular case. Courts may be particularly inclined to order disclosure when the person trying to protect information is a party to the lawsuit in question or when a criminal defendant seeks information to mount a defense.

Federal Reporter's Privilege

Federal courts in the Eleventh Circuit, which encompasses Florida, have recognized 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.

Unfortunately, courts in the Eleventh Circuit have not had many opportunities to define the scope of the privilege, so it is hard to say whether an amateur or non-traditional journalist could take advantage of it. When it applies, however, the privilege is qualified, meaning that a court must establish three things before ordering disclosure: (a) the information is highly relevant; (b) it is necessary to the proper presentation of the case; and (c) it is unavailable from other sources. Courts applying this test often also tend to weigh the public interest in disclosure of the information against the public interest in promoting a an uninhibited press. The results of this kind of balancing test would be different depending on the facts of the particular case.

For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 11th Circuit.

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.

Note: This page covers information specific to Georgia. See the section on Protecting Sources and Source Material for more general information.

Georgia has a shield law that protects the identity of sources and unpublished information collected or prepared in the newsgathering process, such as notes and outtakes. The shield law creates a qualified privilege that may be overcome in certain circumstances, and it does not apply when you are a party to a lawsuit. The language of the shield law suggests that it may not apply to electronic media and online publishing, but the law is uncertain on this point.

In addition, federal courts in the Eleventh Circuit, which encompasses Georgia, recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. However, the scope of this privilege is uncertain.

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.

There is no common law protection for sources or source material in Georgia.

Shield Law

Source and Statutory Text

Georgia's shield law, located at Ga. Code § 24-9-30, states in relevant part:

Who is Covered?

The Georgia shield law covers people engaging in "the gathering and dissemination of news for the public." Significantly, however, its coverage is limited to those disseminating news through a "newspaper, book, magazine, or radio or television broadcast." The language of the statute therefore seems to limit protection to traditional forms of media. That said, the CMLP is not aware of any Georgia cases interpreting this language 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). The argument might be even stronger with respect to electronic analogs of the media listed, such as e-zines, web radio, podcasts, or videocasts.

What Information is Protected?

Georgia's shield law is broad -- it covers "any information, document, or item obtained or prepared in the gathering or dissemination of news." It extends to the identity of a source, information that would lead to the identity of a source, and unpublished information collected or prepared in the course of newsgathering. The protection applies whether or not you promise a source confidentiality, and whether or not you share the identity of the source with a limited number of third parties. Publishing information eliminates protection for the information actually published, but it does not eliminate protection for non-published information gathered in preparing the published news.

How Strong is the Protection?

The shield law provides a qualified privilege, which means that a court may force you to reveal information under certain circumstances. In order to compel disclosure of information that otherwise would be protected by the shield, a court or other legal body must find that three conditions are met: (1) the information is "material" (i.e., significant) and relevant to the case in question; (2) the information cannot be reasonably obtained by alternative means; and (3) the information is necessary to the proper preparation or presentation of the case of the party seeking the information.

The same test applies in criminal and civil cases. As a practical matter, however, courts may be particularly inclined to order disclosure when a criminal defendant seeks information to mount a defense.

The shield law does not protect you at all when you are a party to a lawsuit (for example, when you are suing or being sued, or when you are charged with a crime).

For more detailed information about the Georgia shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Georgia.

Federal Reporter's Privilege

Federal courts in the Eleventh Circuit, which encompasses Georgia, have recognized 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.

Unfortunately, courts in the Eleventh Circuit have not had many opportunities to define the scope of the privilege, so it is hard to say whether an amateur or non-traditional journalist could take advantage of it. When it applies, however, the privilege is qualified, meaning that a court must establish three things before ordering disclosure: (a) the information is highly relevant; (b) it is necessary to the proper presentation of the case; and (c) it is unavailable from other sources. Courts applying this test often also tend to weigh the public interest in disclosure of the information against the public interest in promoting a an uninhibited press. The results of this kind of balancing test would be different depending on the facts of the particular case.

For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 11th Circuit.

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.

Note: This page covers information specific to Illinois. See the section on Protecting Sources and Source Material for more general information.

Illinois has a shield law that may protect your sources and newsgathering materials. Whether the shield law covers you depends on whether the law deems you a "reporter," and on the medium in which you work. If the shield applies to you, it can protect both the identity of your sources and unpublished information collected during newsgathering. The shield law creates a qualified privilege -- in certain circumstances, a court may order you to disclose information even if you are covered by the statute.

Historically, federal courts in the Seventh Circuit, which encompasses Illinois, recognized a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. However, a recent case casts serious doubt on the continued validity of a federal reporter's privilege in Illinois.

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.

There is no common law protection for sources or source material in Illinois.

Shield Law

Source and Statutory Text

Illinois's shield law, located at 75 Ill. Comp. Stat. 5/8-901 to 8-909, states in relevant part:

Sec. 8‑901. Source of information.

Sec. 8‑902. Definitions.

Sec. 8‑907. Court's findings.

Who is Covered?

To be protected by the Illinois reporter shield, you must meet two conditions: First, you must fit within the law's definition of "reporter." Second, the medium in which you publish must meet the law's definition of a "news medium."

Reporter: The statute defines a "reporter" as "any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full‑time or part‑time basis." The key term here is "regularly," so you may not be covered if your activities are sporadic or occasional. Illinois courts have not ruled on whether the statute covers amateur or hobbyist newsgatherers, but the language of the statute (terms like "business" and "full-time or part-time") indicates that it might not.

News medium: The law defines "news medium" to include electronic media in addition to traditional forms of news publication. However, Illinois courts have not had the opportunity to clarify the definition of "news medium" as it applies to non-traditional journalists and other online publishers, and several questions remain unanswered. For example, the definition includes electronic periodicals and electronic news services, but it is unclear whether a blog or message board would fit into those categories. Additionally, the definition includes people making "news reels and other motion picture news," but it is hard to say whether this includes documentary films, video-blogs, and other forms of online video production. It is also unclear whether the definition includes internet radio, internet television, and podcasts.

What Information is Protected?

Illinois's shield law protects the "sources" of information. The law defines a "source" as "the person or means from or through which the news or information was obtained." The law applies to both human sources and documentary sources, including information obtained in the newsgathering process, whether confidential or non-confidential (i.e., information not obtained in return for a promise of confidentiality). In People v. Slover, 753 N.E.2d 554, 558 (Ill. App. Ct. 2001), an Illinois court held that a reporter's unpublished photograph depicting police performing a search was a protected "source" within the meaning of the statute. You do not need to promise a human source confidentiality in order to take advantage of the shield's protection.

How Strong is the Protection?

The Illinois shield law provides a qualified privilege, which means that a court may force you to reveal information in some circumstances. In order to compel disclosure of information that otherwise would be protected by the shield, a court or other legal body must find that "all other available sources of information have been exhausted" and that "disclosure of the information sought is essential to the protection of the public interest involved." The results of this kind of balancing test would be different depending on the facts of the particular case.

This standard applies in both civil and criminal cases, although a slightly different standard applies in civil defamation actions. As a practical matter, courts may be particularly inclined to order disclosure when the person trying to protect information is a party to the lawsuit in question, or when a criminal defendant seeks information to mount a defense. One Illinois court has held that the shield does not apply to non-confidential information sought by a criminal defendant.

For more detailed information about the Illinois shield law, see the Reporter's Committee for Freedom of the Press's Privilege Compendium: Illinois.

Federal Reporter's Privilege

Until recently, it appeared that federal courts in the Seventh Circuit, which encompasses Illinois, recognized a qualified privilege based on the First Amendment to the U.S. Constitution. The courts recognizing this privilege applied it to both the identity of confidential sources and unpublished information (whether confidential or nonconfidential) collected during newsgathering. Before ordering disclosure of covered information, the courts applied a balancing test considering the media's interests in protecting the information, the relevance of the material sought, and whether the source was confidential.

A significant recent case, McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), casts serious doubt on the continued validity of the reporter's privilege in the Seventh Circuit. Unfortunately, the decision was written in an enigmatic style that makes it difficult to know for sure whether future attempts to invoke the federal reporter's privilege are foreclosed in Illinois.

For additional information on the federal reporter's privilege in the Seventh Circuit before the McKevitt case, see the Reporter's Committee for Freedom of the Press's Privilege Compendium: 7th Circuit.

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.

Note: This page covers information specific to Indiana. See the section on Protecting Sources and Source Material for more general information.

Indiana has a shield law that may protect you from having to reveal the identity of your sources. However, the scope of the shield law is quite narrow: it applies only to sources, not documents and information collected during newsgathering, and it appears to cover only a small class of professional journalists working in traditional media. If the shield law applies to you, it provides an absolute privilege -- a court may not legally order you to reveal the identity of your source(s).

The Indiana Supreme Court has ruled that neither the U.S. Constitution nor the Indiana Constitution creates a reporter's privilege when a reporter is subpoenaed for information in a criminal case. A previous Indiana case had ruled that a qualified "reporter's privilege" applied in civil cases, but the continued validity of this case is now in question.

Historically, federal courts in the Seventh Circuit, which encompasses Indiana, recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. However, a recent case casts serious doubt on the continued validity of a federal reporter's privilege in Indiana.

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.

Indiana does not recognize any common law privilege for newsgatherers.

Shield Law

Source and Statutory Text

Indiana's shield law, located at Ind. Code § 34-46-1, -2, states:

Applicability of chapter

Sec. 1. This chapter applies to the following persons:

(1) any person connected with, or any person who has been connected with or employed by:

(A) a newspaper or other periodical issued at regular intervals and having a general circulation; or

(B) a recognized press association or wire service;

as a bona fide owner, editorial or reportorial employee, who receives or has received income from legitimate gathering, writing, editing and interpretation of news; and

(2) any person connected with a licensed radio or television station as owner, official, or as an editorial or reportorial employee who receives or has received income from legitimate gathering, writing, editing, interpreting, announcing or broadcasting of news.

Privilege against disclosure of source of information

Sec. 2. A person described in section 1 of this chapter shall not be compelled to disclose in any legal proceedings or elsewhere the source of any information procured or obtained in the course of the person's employment or representation of a newspaper, periodical, press association, radio station, television station, or wire service, whether:

(1) published or not published:

(A) in the newspaper or periodical; or

(B) by the press association or wire service; or

(2) broadcast or not broadcast by the radio station or television station;

by which the person is employed.

Who is Covered?

The Indiana shield law only covers employees and owners of newspapers, periodicals, recognized press associations, and wire services, and owners, officials, and employees of licensed radio and television stations. The statute imposes an additional requirement that the person invoking the shield receive income in connection with his or her news-related activities. These limitations appear to exclude from the shield's coverage amateur journalists and professional journalists working in media others than the traditional forms listed in the statute. That said, the CMLP is not aware of any Indiana cases interpreting this language 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). For audio and video content creators, the statutory language limiting protection to an employee, official, or owner of "a licensed radio or television station" may constitute a significant barrier to coverage. The "income" requirement would create a significant barrier for all kinds of amateur journalists and other online publishers who do not make money from their activities.

What Information is Protected?

Indiana's shield law protects only the identity of a source. This protection applies whether information from the source is published or unpublished. The law is not clear on whether you must promise confidentiality to a source in order to obtain the protection of the shield law.

How Strong is the Protection?

When the shield law covers you, its protection is absolute. In such a situation, a court or other legal body cannot force you to reveal the identity of your source. The shield applies equally in both civil and criminal cases, and at least one Indiana court has applied the shield when the person invoking the shield was a party to the lawsuit. See Jamerson v. Anderson Newspapers, Inc., 469 N.E.2d 1243 (Ind. App. 1984) (applying the shield to a reporter sued for libel).

For more detailed information about the Indiana shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Indiana.

Constitutional Reporter's Privilege in Indiana State Courts

Indiana's shield law is not the only possible source of protection for your sources and newsgathering material. Courts in some states have interpreted the First Amendment to the U.S. Constitution and similar clauses in their state constitutions as creating a qualified privilege for reporters. The Indiana Supreme Court has ruled, however, that neither the U.S. Constitution nor the Indiana Constitution creates a reporter's privilege when a reporter is subpoenaed for information in a criminal case. In re WTHR-TV, 693 N.E.2d 1 (Ind. 1998). A previous Indiana case had ruled that a qualified reporter's privilege based on the First Amendment to the U.S. Constitution applied in a civil case when unpublished source material was sought from a non-party reporter. In re Stearns, 489 N.E.2d 146, 149-51 (Ind. Ct. App. 1986). The court held that the person seeking source material had to establish three elements in order to overcome the privilege:

(a) the material sought is highly relevant;

(b) there is a compelling need for the information sufficient to override the First Amendment privilege; and

(c) the party has been unsuccessful in securing the information from other sources.

In light of the WTHR-TV case, however, the continued validity of the Stearns case, and the continued existence of a federal reporter's privilege in Indiana state courts, is in doubt. Therefore, at least in Indiana state court, you may not want to put much reliance on a constitutional reporter's privilege for sources or source material.

Constitutional Privilege in Indiana Federal Courts

Until recently, it appeared that federal courts in the Seventh Circuit, which encompasses Indiana, recognized a qualified privilege based on the First Amendment to the U.S. Constitution. The courts recognizing this privilege applied it to both the identity of confidential sources and unpublished information (whether confidential or non-confidential) collected or prepared during newsgathering. Before ordering disclosure of covered information, the courts applied a balancing test considering the media's interests in protecting the information, the relevance of the material sought, and whether the source was confidential.

A significant recent case, McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), casts serious doubt on the continued validity of the federal reporter's privilege in the Seventh Circuit. Unfortunately, the decision was written in an enigmatic style that makes it difficult to know for sure whether future attempts to invoke the federal reporter's privilege are foreclosed in Illinois. Therefore, you cannot rely on their being a constitutional reporter's privilege for your sources or source material in Indiana federal courts.

For additional information on the federal reporter's privilege in the Seventh Circuit before the McKevitt case, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 7th Circuit.

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.

Note: This page covers information specific to Massachusetts. See the section on Protecting Sources and Source Material for more general information.

For additional information about engaging in journalism in the Commonwealth of Massachusetts, please see our printable PDF guide Newsgathering in Massachusetts, co-produced with the Harvard Law School Cyberlaw Clinic.

Massachusetts does not have a shield law. The state legislature recently considered enacting a shield law, but failed to do so.

You may be able to protect your sources and unpublished information obtained in the course of newsgathering under Massachusetts "common law." "Common law" is judge-made law. Because common law is developed on a case-by-case basis by courts, rather than through legislative pronouncement of general rules, it often suffers from gaps, ambiguities, and uncertainties. This is the case with Massachusetts's common law privilege for reporters, which is not well defined.

In addition, federal courts in the First Circuit, which encompasses Massachusetts, recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution that protects the identity of sources and (potentially) unpublished information collected or prepared during newsgathering. However, the scope of this privilege is uncertain, and its protection depends on the circumstances of your particular case. Massachusetts state courts do not recognize any protections for reporters based on the U.S. Constitution or the Massachusetts Constitution.

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.

Common Law

Massachusetts courts recognize a common law privilege for reporters. It applies to sources and unpublished information. Its exact character and scope are uncertain, as is its application to online publishing and non-traditional journalism.

Who is Covered?

Massachusetts courts have not defined who exactly is covered by the common law reporter's privilege. However, a federal court interpreting Massachusetts law held that an investment analyst who wrote a report for his job was covered by the common law privilege for reporters even though he was not a part of the "organized press." Summit Technology, Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992). However, this decision has no weight as precedent (i.e., it is not legally binding) in Massachusetts state courts. That means that future courts that reach the same issue could rule differently. Moreover, it is unclear how this case would apply in other cases, such as when the person seeking to protect information is an amateur or hobbyist. Nevertheless, it provides support for the argument that people outside the traditional news media are covered by the Massachusetts common law privilege as long as they are gathering information with an intent to disseminate it to the public.

What Information is Protected?

The common law privilege protects unpublished information gathered or prepared in the course of newsgathering and the identity of sources. The law gives more protection to confidential information (i.e., information received in exchange for a promise of confidentiality) than non-confidential information.

How Strong is the Protection?

The common law privilege is qualified, meaning that courts sometimes will order you to disclose information, even if you and your information qualify for protection. Courts in Massachusetts do not apply any set formula in determining whether information should be disclosed or not. Instead, they balance the "interests" of the newsgatherer and the party who wants the information. The results of this kind of balancing test would be different depending on the facts of the particular case.

The same test applies in criminal and civil cases and whether or not you are a party to the lawsuit. As a practical matter, however, courts may be particularly inclined to order disclosure when you are a party to the lawsuit in question or when a criminal defendant seeks information to mount a defense. The protection is especially weak if someone sues you for defamation; however, a court might find that you are not required to reveal your sources if the plaintiff cannot "demonstrate an essential relationship between the identities of the sources and the plaintiffs' ability to establish an element of their claim." Wojcik v. Boston Herald, Inc., 60 Mass. App. Ct. 510, 517 n.17 (2004).

For more detailed information about Massachusetts's common law privilege, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Massachusetts.

Constitutional Protection in Federal Court

Federal courts in the First Circuit, which encompasses Massachusetts, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. It applies to the identity of sources and (potentially) to unpublished information collected or prepared during newsgathering.

In interpreting the only Supreme Court case addressing reporter’s privilege, Branzburg v. Hayes, 408 U.S. 665 (1972), the U.S. Court of Appeals for the First Circuit has recognized some room for balancing First Amendment interests with countervailing governmental interests in reporters’ disclosure of sources. The majority opinion in Branzburg held that the First Amendment does not provide a reporter with a privilege from testifying before a grand jury about information obtained and events witnessed in the course of researching a story. However, Justice Powell’s fifth-vote concurring opinion is often considered controlling, establishing a qualified privilege subject to a balancing test “between freedom of the press and the obligation of all citizens to give relevant testimony.” The First Circuit has held that “[t]he Branzburg analysis, especially as to the strength of the governmental and public interest in not impeding criminal investigations, guides our outcome,” implicitly adopting some form of Justice Powell’s balancing. In re Dolours Price, 685 F.3d 1, 18 (1st Cir. 2012), cert. denied, 133 S. Ct. 1796 (U.S. 2013).

Who is Covered?

Federal courts in the First Circuit have extended the reporter's privilege to people other than traditional journalists, including research analysts and academics. In an important case, the First Circuit Court of Appeals stated that

Cusumano v. Microsoft Corp., 162 F.3d 708, 714 (1st Cir. 1998). The court's statement indicates that the key factor in determining coverage is whether the person seeking protection collects information with the intent to spread it to the public. Many online publishers and non-traditional journalists could fit into this category.

What Information is Protected?

The reporter's privilege protects the identity of your sources, as well as information that might lead to the identification of sources. You do not have to promise confidentiality to be covered by the privilege, but courts give greater protection when the source is confidential. In some circumstances, the reporter's privilege may also protect unpublished information obtained or prepared in the course of newsgathering.

How Strong is the Protection?

The federal reporter's privilege is qualified. That means that, even if you are protected by the privilege, a court or other legal body may order disclosure of the information in question upon a sufficient showing of need by the party seeking the information. As part of this protection, a court may require the party seeking information from a reporter to try to get the information elsewhere first.

The reporter's privilege applies in both civil and criminal cases, but the privilege is weaker in criminal cases.  In a decision dealing with government subpoenas directed at an oral history research project at Boston College (the "Belfast Project") in aid of a criminal investigation in the United Kingdom, the First Circuit interpreted Branzburg as holding that “the fact that disclosure of the materials sought by a subpoena in criminal proceedings would result in the breaking of a promise of confidentiality by reporters is not by itself a legally cognizable First Amendment or common law injury.” In re Dolours Price, F.3d at 16.  In a subsequent decision in the same case, U.S. v. Trustees of Boston College, 12-1236, 2013 WL 2364165 (1st Cir. May 31, 2013), the First Circuit held that the Supreme Court's balancing of interests in Branzburg allowed the government to obtain production of materials relevant to the UK criminal investigation notwithstanding concerns about source confidentiality, while allowing judges to deny access to materials not deemed relevant. The First Circuit further held that Branzburg allowed for a different balancing of interests in civil cases and other situations factually distinct from the criminal investigation in Branzburg, including allowing a court to require the government to demonstrate a higher degree of "direct relevance" to obtain materials that would disclose source identities. 

It is also available when you are a party to the lawsuit in question (i.e., you are suing someone or being sued), but the privilege is also weaker in these circumstances, and successful assertion of the privilege may make it difficult for you to make out your case.

For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 1st Circuit.

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.

Note: This page covers information specific to Michigan. See the section on Protecting Sources and Source Material for more general information.

Michigan has two shield law statutes that may protect your sources and source material, but only in limited circumstances. The Michigan shield laws apply only when you receive a subpoena as part of a grand jury proceeding or as part of a criminal investigation. But they offer you no protection in civil cases (whether you are a party to the case or not), or when a criminal defendant seeks information from you.

Federal courts in the Sixth Circuit Court of Appeals, which encompasses Michigan, recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. However, the scope of this privilege is uncertain because courts in the Sixth Circuit have only addressed the reporter's privilege in two cases.

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.

Shield Laws

Circumstances of Protection

Michigan's two shield laws apply when prosecutors seek information in criminal cases. The first shield law applies to grand jury proceedings. Grand jury proceedings occur when a prosecutor decides to charge someone with a crime. The prosecutor must ask the grand jury to indict the accused person before the person can be tried for the crime. In other words, grand juries decide preliminarily whether there is sufficient evidence for government to try the accused person. As part of this process, government prosecutors sometimes issue subpoenas to third parties (i.e., people not involved in the criminal case) who might have relevant information, including the press. The grand jury shield provides protection against these subpoenas.

The second Michigan shield law applies to subpoenas issued by prosecutors as part of a criminal investigation. The prosecutorial investigation shield may give you protection if you receive such a subpoena.

Michigan's shield laws do not apply when a criminal defendant seek information from you. They also do not apply in civil cases.

Source and Statutory Text

Michigan's grand jury shield can be found at MCL 767.5a. The state's prosecutorial investigation shield law can be found at MCL 767A.6(6).

Both laws cover "a reporter or other person who is involved in the gathering or preparation of news for broadcast or publication." Both laws protect "the identity of an informant, any unpublished information obtained from an informant, or any unpublished matter or documentation, in whatever manner recorded, relating to a communication with an informant."

The grand jury shield has this exception: it does not apply in "an inquiry for a crime punishable by imprisonment for life when it has been established that the information which is sought is essential to the purpose of the proceeding and that other available sources of the information have been exhausted."

The prosecutorial investigation shield has two exceptions: it does not cover published information, and it does not cover situations in which the newsgatherer is the subject of the investigation.

Who is Covered?

Both shield laws protect "a reporter or other person who is involved in the gathering or preparation of news for broadcast or publication." The shields appear to cover anyone who is involved in spreading "news" to the public, which should cover many online publishers and non-traditional journalists. However, Michigan courts have not had a chance to address the meaning of this statutory language and have not defined "news."

The second shield law, which covers investigations by prosecutors, excludes from coverage those who are the subject of a criminal investigation. Therefore, if you are the subject of a criminal investigation, you cannot rely on the prosecutorial investigation shield to refuse to disclose information.

What Information is Protected?

Both shield laws protect three things. First, they protect the identity of "informants." Second, they protect any other unpublished information you have obtained from an "informant." Third, they protect any notes, recordings, and similar materials made in connection with your communications with an "informant." The shield laws do not define the term "informant," but it probably applies what is commonly called a "source." They do not distinguish between confidential and non-confidential information, as long as it is not published.

How Strong is the Protection?

Remember, the shield laws only apply to investigations by prosecutors and grand jury proceedings. They do not protect you from inquiries by criminal defendants or parties in civil cases.

When the shields apply, they are, with one exception, "absolute." That means that if you and your information are protected by the shield, courts may never order you to reveal it.

The one exception is that the grand jury shield does not cover "an inquiry for a crime punishable by imprisonment for life when it has been established that the information which is sought is essential to the purpose of the proceeding and that other available sources of the information have been exhausted." In other words, to obtain your information in a grand jury proceeding, a prosecutor must show all of the following:

• The case concerns a crime punishable by life imprisonment;
• The information is "essential" to the proceeding; and
• No other source of the same information is available.

Note also that the prosecutorial investigation shield does not protect you when you are the subject of a criminal investigation.

For more detailed information about the Michigan shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Michigan.

Constitutional Protection in Federal Court

Federal courts in the Sixth Circuit, which encompasses Michigan, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. To date, courts have applied it to the identity of confidential sources only.

Who is Covered?

The scope of the federal reporter's privilege is uncertain in federal court in Michigan. Some lower federal courts in the Sixth Circuit have applied the privilege to individuals outside the traditional press, such as writers of a non-profit organization's newsletter and a freelance writer. These cases do not have weight as precedent, so it is uncertain whether other courts would follow them.

What Information is Protected?

The Sixth Circuit Court of Appeals has held that the reporter's privilege protects the identity of confidential sources. The Court of Appeals and lower courts have not yet decided whether the privilege protects other information or non-confidential sources.

How Strong is the Protection?

The federal reporter's privilege is qualified. That means that, even if you are protected by the privilege, a court or other legal body may order disclosure of the information in question upon a strong showing of need by the party seeking the information.

Federal courts in the Sixth Circuit have not determined whether the reporter's privilege applies in cases where a criminal defendant or prosecutor in a criminal case is seeking information from a reporter. It does not apply when a grand jury issues a subpoena requesting information.

For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 6th Circuit.

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.

Note: This page covers information specific to New Jersey. See the section on Protecting Sources and Source Material for more general information.

New Jersey has a shield law that may protect your sources and newsgathering materials. When information is sought in connection with a civil case, the shield law provides "absolute" protection, meaning that it cannot be overcome. When information is sought in connection with a criminal case, the shield law provides a qualified privilege, meaning that a court sometimes may order you to disclose information even if you are covered by the statute.

In addition, federal courts in the Third Circuit, which encompasses New Jersey, recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution and the common law. This privilege protects the identity of sources and unpublished information obtained or prepared in the newsgathering process, such as notes and outtakes. The strength of the privilege's protection depends on the circumstances of your particular case. New Jersey state courts do not recognize any protections for reporters based on the U.S. Constitution, the New Jersey Constitution, or the common law.

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.

Shield Law

Source and Statutory Text

New Jersey's shield law, located at N.J. Stat. §§ 2A:84A-21 to 21.8, states in relevant part:

N.J. Stat. § 2A:84A-21

. . .

N.J. Stat. § 2A:84A-21a

Who is Covered?

New Jersey's shield law uses a complicated series of definitions to describe who the law protects. Despite the complexity, a reasonable reading suggests that the law will protect most people who bring news to the public regularly, including amateur and non-traditional journalists publishing through online media.

First, to be covered, you must be a "person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered. . . ." You may perform a variety of different roles. You need not be a writer -- any role in "gathering, producing, transmitting, compiling, editing, or disseminating" is sufficient for protection. You need not be a paid employee of a news source to be covered. However, you must somehow be "connected with" the "news media." Therefore, whether you are protected hinges on what "news media" means. That definition is discussed below.

What does "news media" mean? The law defines it to mean "newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public." Importantly, "news media" is not limited to the institutional press or "mainstream media" -- as long as you have the requisite relationship with one of the mediums it lists, you are covered. The definition of "news media" encompasses a wide variety of media. Since it covers electronic sources that are similar to the traditional sources it lists, it should cover periodicals online, Web radio, regular podcasts, and the like. It may cover blogs, since they are analogous to electronic newspapers or magazines. However, the law may not cover electronic media that are not analogous to the traditional sources listed, such as bulletin boards and non-updated Web pages. Future cases will hopefully clarify the shield law's application to online publishing and non-traditional journalism.

What Information is Protected?

New Jersey's shield law protects both the identity of your sources and unpublished information you gather in the process of obtaining news.

Identity of sources

The shield law protects not only the identity of a source, but also any information that would lead to identification. You do not have to promise a source confidentiality in order to protect his/her identity under the shield. Publishing some information provided by a source does not eliminate the law's protection of the source's identity.

Unpublished information

The shield law protects, with certain exceptions, information gathered for purposes of dissemination to the public. Publishing a story only eliminates protection for the information that is actually published. The shield law excludes from coverage your first-hand eyewitness accounts or your participation in physical violence or property damage.

The law protects information collected "in the course of pursuing [your] professional activities." The phrase "in the course of pursuing...professional activities" might seem to limit the law's protection to professional employees, but the law defines it considerably more broadly. It means "any situation, including a social gathering, in which a reporter obtains information for the purpose of disseminating it to the public." Thus, as mentioned above, the key is whether you obtain information for the purpose of disseminating it to the public.

How Strong is the Protection?

The strength of the shield depends on the type of case:

Civil: When information is sought in connection with a civil case, the shield is "absolute." If a party in a civil case issues a subpoena demanding the identity of your source or unpublished information, you cannot be held in contempt for refusing to reveal that information. The absolute protection applies when you are a party to a civil case (e.g., you are suing or being sued), but asserting it could make it more difficult to make out your case.

Criminal When information is sought in connection with a criminal case, the shield is qualified -- courts sometimes may order you to disclose information even if you and the information are protected by the shield. Prosecutors generally cannot overcome the shield -- if a prosecutor seeks protected information from you, you ordinarily will not be forced to reveal information if you are covered by the shield law (above). On the other hand, criminal defendants can overcome the shield, if they can prove the following things to the court:

• The information is "relevant, material, and necessary" for the defendant's case;
• The information cannot be obtained from a less intrusive source;
• "[T]he value of the material sought as it bears upon the issue of guilt or innocence outweighs the privilege against disclosure";
• "[T]he request is not overbroad, oppressive, or unreasonably burdensome."

For more detailed information about the New Jersey shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: New Jersey.

Constitutional and Common Law Protections in Federal Court

Federal courts in the Third Circuit, which encompasses New Jersey, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution and the common law. It 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?

Federal courts in the Third Circuit apply the reporter's privilege to 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 qualified 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.

For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 3rd Circuit.

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.

Note: This page covers information specific to New York. See the section on Protecting Sources and Source Material for more general information.

New York has a shield law that may protect your sources and newsgathering materials. If you qualify for its protection, you must be careful not to disclose information you obtain to people who do not work for the same organization as you, or you may lose the shield's protection.

New York state courts recognize a qualified "reporter's privilege" based on the U.S. Constitution and the New York Constitution. The precise scope of these protections is uncertain. New York state courts do not recognize any common law privilege for newsgatherers.

Federal courts in the 2nd Circuit Court, which encompasses New York, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution and the common law. The level of protection depends on whether you obtained the information in question in exchange for a promise of confidentiality.

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.

Shield Law

Source

New York's shield law is located at N.Y. Civ. Rights Law § 79-h. Because of the statute's complexity, we won't reproduce it here. Instead, we will explain its important aspects below.

Who is Covered?

New York's shield law covers only specific categories of people. In general, you must earn money in connection with work for a traditional news organization in order to be protected. Specifically, you must meet three conditions: (1) you must have the right kind of job; (2) you must work with what the law defines as "news"; and (3) you must work in one of the media listed by the statute. Meeting all three of these conditions likely will present a serious obstacle for many amateur and non-traditional journalists and other online publishers.

Each condition is detailed below.

Type of Job

To qualify for protection, you must either be a "professional journalist" or a "newscaster." You must earn money in your role to qualify for either.

The law defines "professional journalist" to mean:

one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public; such person shall be someone performing said function either as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication.

In essence, you must be an employee or freelance worker performing a newsgathering or editing role for a professional medium of communication.

The law defines "newscaster" to mean someone who "for gain or livelihood, is engaged in analyzing, commenting on or broadcasting, news by radio or television transmission." In other words, you must earn money as a television or radio reporter.

News

To qualify for protection, you must work with "news." The law defines "news" to mean "written, oral, pictorial, photographic, or electronically recorded information or communication concerning local, national or worldwide events or other matters of public concern or public interest or affecting the public welfare." Some information, such as a profile of a person of no particular importance who has not been involved in a significant event of public importance, might not be included in this definition.

Medium

To be protected, you must work in one the media listed below:

• Newspaper: Only conventional print newspapers that charge a subscription fee and have been established for at least a year fit in this category.
• Magazine: Only conventional and established print magazines that charge a subscription fee and have been established for at least a year fit this category.
• News agency, press association, or wire service: Essentially organizations analogous to the Associated Press or Reuters.
• Radio or television transmission station or network: Unlike the other other mediums listed above, the law does not define these terms. Thus, unlike with the other terms, it is unclear if radio and television are limited to traditional formats, or if they can include cable networks or Internet-based formats.
• Other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public: This is likely to be broad enough to encompass online publication, but only to the extent that such publication is carried out either as a business or to demonstrable professional standards; citizen journalists, as well as amateur reporting and blogging, are unlikely to be protected.  This category also serves as a catch-all for other modes of professional communication not listed above, such as print books.

What Information is Protected?

The New York shield law protects the identity of sources and information collected in the course of newsgathering. You do not need to have spoken with the source or obtained the information in confidence to obtain protection, but the level of protection is higher if you did.

Disclosure of information has significant negative consequences for protection under the shield law. The impact depends on who discloses the information:

• If your source discloses his or her identity after you have spoken with him or her, the source is considered "non-confidential." You still are protected by the the shield, but the level of protection is lower than if the source's identity were confidential.
• If, after obtaining information, you disclose confidential information or the identity of your source to anyone other than another reporter or editor at your news organization, you waive (i.e., give up) protection for that information. In other words, you lose the shield's protection completely. As a result, in order to retain protection, you should not speak about confidential news information or reveal the identity of sources to outsiders. Once information is published, it is not protected.

How Strong is the Protection?

New York's shield law has two tiers of protection.

Tier One: If you promised your source confidentiality or obtained information in return for a promise of confidentiality, then the shield is absolute. In other words, courts may not order you to reveal it under any circumstances. The absolute protection applies equally whether the information is sought in a civil or criminal case. It applies even if you are a party to the case in which information is sought (e.g., you are suing or being sued).

Tier Two: If the information is not confidential, then the shield is qualified, which means that sometimes a court may order you to reveal the information. In order to order disclosure, courts must find all three of the following factors to be true:

• The information is highly "material" (legally significant) and relevant;
• The information is critical or necessary to a party's case; and
• The information is not obtainable from any alternative source.

These tests apply when information is sought in a civil case, in a criminal case, and when you are a party. As a practical matter, however, courts are more inclined to order you to reveal information if you are a party to the case. Courts also are more likely to order disclosure when the the party seeking the information is a criminal defendant.

For more detailed information about the New York shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: New York.

Constitutional Protection in New York State Court

Even if the shield law does not apply to you, you may be able to protect your newsgathering information based on other legal protections. New York state courts recognize a qualified reporter's privilege based on the U.S. Constitution and the New York Constitution. It covers both confidential and non-confidential information. Beyond that, the exact scope of the protection is uncertain.

For additional details, see the Reporters Committee for Freedom of the Press's Privilege Compendium: New York.

Constitutional and Common Law Protection in Federal Court

Federal courts in the Second Circuit, which encompasses New York, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution and the common law. It applies to the identity of sources and unpublished information collected or prepared during newsgathering.

Who is Covered?

Exactly who is covered by the reporter's privilege is unclear. Some cases suggest, however, that you do not need to receive payment for your work or be affiliated with a mainstream news publication.

What Information is Protected?

The reporter's privilege extends to the identity of sources and unpublished information obtained or prepared during newsgathering. It protects both confidential and non-confidential information, but confidential information gets more protection (below). If you witness a crime, the privilege does not protect your observations.

How Strong is the Protection?

There are two tiers of protection, depending on whether the information is confidential or not. Both levels of protection are qualified, meaning that a court may order you to reveal information under some circumstances.

Tier One: If you obtained the information in confidence (i.e., in exchange for a promise of confidentiality), then it gets more protection. A court can order you to disclose the information only if it finds that each of the following is true:

• The information is highly "material" (i.e., legally significant) and relevant;
• The information is necessary or critical to the maintenance of the party's case; and
• The information is not obtainable from other available sources.

Tier Two: If you did not obtain the information in confidence, then it gets less protection. A court can order you to reveal non-confidential information if it find that each of the following is true:

• The information is "of likely relevance" to a significant issue in the case; and
• The information is not reasonably obtainable from other available sources.

These tests apply when the information is sought in a civil case, in a a criminal case, and when you are a party. As a practical matter, however, courts are more inclined to order you to reveal information if you are a party to the case, and the protection is especially weak if someone sues you for defamation. In addition, courts are more likely to order you to disclose information if a criminal defendant is seeking the information in order to mount a defense.

For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 2nd Circuit.

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.

Note: This page covers information specific to North Carolina. See the section on Protecting Sources and Source Material for more general information.

North Carolina has a shield statute that may protect your sources and newsgathering materials. It protects both the identity of your sources and unpublished information collecting during newsgathering. The shield law provides only qualified protection, meaning that a court can order you to reveal information under certain circumstances, even if you qualify for the shield law's protection. North Carolina state courts do not recognize a state constitutional or common law privilege for reporters.

Federal courts in the Fourth Circuit, which encompasses North Carolina, recognize a qualified privilege based on the First Amendment to the U.S. Constitution. However, the scope of this privilege is uncertain.

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.

Shield Law

Source and Statutory Text

North Carolina's shield law, located at N.C. Gen. Stat. § 8‑53.11, states:

(2) Cannot be obtained from alternate sources; and

Who is Covered?

North Carolina's shield law generally covers anyone who is involved with news on behalf of a medium that regularly provides news to the public. The key limitation is that your medium must be "regularly engaged in the business of publication or distribution of news." If you post information on a bulletin board that does not regularly distribute news, or on a static and unchanging website, you probably will not be protected. Moreover, to be protected, your medium must be "accessible to the general public."

To be covered, your involvement with news can be in the role of "gathering, compiling, writing, editing, photographing, recording, or processing information." This phrase seems to encompass most news-related roles. Your medium can be "print, broadcast, or other electronic means" -- essentially, any medium.

What Information is Protected?

North Carolina's shield law protects, with an exception, any "confidential or nonconfidential information, document, or item" you obtain while acting in your role as a newsgatherer. The only exception is that the shield does not protect your eyewitness observations of any crimes or torts. The exception also includes any physical evidence and any recordings you make of a crime or tort.

How Strong is the Protection?

The shield law provides qualified protection, meaning that a court can order you to reveal covered information under some circumstances. In order for a court in North Carolina to order disclosure of information that otherwise would be protected by the shield, the court must find all three of the following to be true:

• The information is relevant and "material" (i.e., legally significant) to the case;
• The information cannot be obtained from alternative sources; and
• The information is essential to the case of the person seeking it.

North Carolina's shield applies equally in civil and criminal cases. As a practical matter, however, courts may be particularly inclined to order disclosure when a criminal defendant seeks information to mount a defense, or when you are a party to the case.

For more detailed information about the North Carolina shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: North Carolina.

Constitutional Protection in Federal Court

Federal courts in the Fourth Circuit, which encompasses North Carolina, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. The precise scope of the privilege is unclear.

Who is protected?

Federal courts in the Fourth Circuit 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 Fourth Circuit cases 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 Fourth Circuit has not defined with precision what information is protected by its 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.

For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 4th Circuit.

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.

Note: This page covers information specific to Ohio. See the section on Protecting Sources and Source Material for more general information.

Ohio has a shield law that may protect you from having to reveal the identity of your sources. However, the shield law only appears to cover those working for newspapers, press associations, and traditional radio and television broadcast stations. Ohio state courts do not recognize a "reporter's privilege" based on the U.S. Constitution or the Ohio Constitution. Nor do they recognize a common law privilege for reporters.

Federal courts in the Sixth Circuit Court of Appeals, which encompasses Ohio, recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. However, the scope of this privilege is uncertain because courts in the Sixth Circuit have only addressed the reporter's privilege in two cases.

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.

Shield Law

Sources

Ohio's shield law is made up of two provisions -- Ohio Rev. Code § 2739.04 (broadcast) and Ohio Rev. Code § 2739.12 (newspapers).

Who is Covered?

Ohio's shield law applies to

• anyone "engaged in the work of, or connected with, or employed by any newspaper or any press association for the purpose of gathering, procuring, compiling, editing, disseminating, or publishing news" (Ohio Rev. Code § 2739.12); or
• anyone "engaged in the work of, or connected with, or employed by any noncommercial educational or commercial radio broadcasting station, or any noncommercial educational or commercial television broadcasting station, or network of such stations, for the purpose of gathering, procuring, compiling, editing, disseminating, publishing, or broadcasting news." (Ohio Rev. Code § 2739.04).

The shield law provisions also specify that the person seeking to protect the identity of a source must have obtained information from the source "in the course of . . . employment."

The statutory language is broad enough to cover owners, employees, and freelancers working for newspapers, press associations, and broadcasting stations in any news-related capacity, but does not appear to cover individuals working in other media. One federal court applying Ohio law found that Dunn Bradstreet, a provider of business information, could not take advantage of the shield because it did not fit into the category of "newspaper or . . . press association." Deltec, Inc. v. Dunn & Bradstreet, 187 F. Supp. 768 (N.D. Ohio 1960). The CMLP is not aware of any cases interpreting this statutory language in an online or non-traditional journalism context. A court could give this language an expansive interpretation, but, for now at least, online publishers should not expect to be covered by the Ohio shield law.

What Information is Protected?

The Ohio shield law protects the identity of sources only. It does not protect any other information obtained during the newsgathering process. The identity of your source need not be confidential for you to be protected by the shield.

How Strong is the Protection?

Ohio's shield law provides absolute protection in most cases. This means that, if you are covered by the shield law, a court generally cannot order you to reveal the identity of a source regardless of the need of the party requesting it. The protection may be weaker when a criminal defendant seeks information from you, because courts must protect the defendant's constitutional right to a fair trial (including, the ability to mount a defense). In addition, some Ohoi courts have denied protection altogether when the person invoking the shield was a defendant in a libel case.

For more detailed information about the Ohio shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Ohio.

Constitutional Protection in Federal Court

Federal courts in the Sixth Circuit, which encompasses Ohio, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. To date, courts have applied it to the identity of confidential sources only.

Who is Covered?

The scope of the federal reporter's privilege is uncertain in federal court in Ohio. Some lower federal courts in the Sixth Circuit have applied the privilege to individuals outside the traditional press, such as writers of a non-profit organization's newsletter and a freelance writer. These cases do not have weight as precedent, so it is uncertain whether other courts would follow them.

What Information is Protected?

The Sixth Circuit Court of Appeals has held that the reporter's privilege protects the identity of confidential sources. The Court of Appeals and lower courts have not yet decided whether the privilege protects other information or non-confidential sources.

How Strong is the Protection?

The federal reporter's privilege is qualified. That means that, even if you are protected by the privilege, a court or other legal body may order disclosure of the information in question upon a strong showing of need by the party seeking the information.

Federal courts in the Sixth Circuit have not determined whether the reporter's privilege applies in cases where a criminal defendant or prosecutor in a criminal case is seeking information from a reporter. It does not apply when a grand jury issues a subpoena requesting information.

For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 6th Circuit.

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.

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.

Shield Law

Source and Statutory Text

Pennsylvania's shield law, located at 42 Pa. Cons. Stat. § 5942 (scroll down to find § 5942), states in relevant part:

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 or exact recordings 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.

For additional information, see the Reporters Committee for Freedom of the Press's Compendium for the 3rd Circuit and for Pennsylvania.

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.

Note: This page covers information specific to Texas. See the section on Protecting Sources and Source Material for more general information.

Texas enacted a reporters' shield law in May 2009 that might protect your sources as well as any information gathered through your reporting. The law provides for a qualified privilege, which means that a court may order you to reveal protected information, even if you qualify as a "journalist" under the shield law.  The shield law privilege is strongest when information is sought in civil cases; the law offers less protection when information is sought in criminal cases.

Federal courts in the Fifth Circuit, which encompasses Texas, recognize a reporter's privilege based on the First Amendment to the U.S. Constitution. The reporter's privilege applies to the identity of confidential sources. It is a qualified privilege, meaning that a court may order you to reveal protected information under certain circumstances, even if you qualify as a "reporter" for purposes of the privilege.

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.

Shield Law

Statutory Text

Texas' shield law states in relevant part:

(2) "Journalist" means a person, including a parent, subsidiary, division, or affiliate of a person, who for a substantial portion of the person's livelihood or for substantial financial gain, gathers, compiles, prepares, collects, photographs, records, writes, edits, reports, investigates, processes, or publishes news or information that is disseminated by a news medium or communication service provider . . .

(3) "News medium" means a newspaper, magazine or periodical . . . or Internet company or provider . . . that disseminates news or information to the public by any means, including: . . .

(F) electronic; and

(G) other means, known or unknown, that are accessible to the public. . .  

Tex. Civ. Prac. & Rem. Code § 22.021

(a) A judicial, legislative, administrative, or other body with the authority to issue a subpoena or other compulsory process may not compel a journalist to testify regarding or to produce or disclose in an official proceeding:

(1) [A]ny confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist or

(2) [T]he source of any information, document, or item described by Subdivision (1).

(b) A subpoena or other compulsory process may not compel the parent, subsidiary, division, or affiliate of a communication service provider or news medium to disclose the information, documents, or items or the source of any information, documents, or items that are privileged from disclosure under Subsection (a).

Tex. Civ. Prac. & Rem. Code § 22.023 . (The shield law provision for criminal cases, which contains much of the language quoted above, is found at Tex. Crim. Proc. Code § 38.11.)

Who is Covered?

Texas' shield law protects journalists, including those who publish content online, but the law might not protect purely amateur reporters.

The statute defines "journalist" relatively broadly. In addition to writers, the statute also covers those who edit, compile, photograph, investigate or publish news or information that is disseminated by a "news medium." A "news medium" includes an "Internet company or provider . . . that disseminates news or information to the public by any means." This suggests that many online publishers might be protected under the statute even if not part of the "mainstream media."   

However, one limitation on who is considered a journalist under the statute could leave many web-based reporters unprotected. The statute limits the term "journalist" to one who reports or gathers news "for a substantial portion" of his/her livelihood or for "substantial financial gain." Although the statute does not specify what constitutes substantial financial gain or a substantial portion of one's livelihood, it seems likely that casual bloggers and other amateur publishers who derive little or no income from their work would be excluded.

What Information is Protected? 

Texas' shield law protects any confidential or nonconfidential information obtained or prepared while acting as a journalist, as well as the sources of any such information. In addition, publication of any privileged information is not a waiver of the journalist's privilege. 

How Strong is the Protection?

Texas' shield law provides a qualified privilege, which means journalists may be compelled to reveal their sources or other information under certain circumstances. The strength of the privilege depends on the nature of the case:

Civil: In a civil case, the party attempting to compel the disclosure can overcome the privilege only by showing all of the following in court:

• All reasonable efforts have been exhausted to obtain the information from alternative sources;
• The subpoena is not "overbroad, unreasonable, or oppressive;"
• Reasonable and timely notice was given of the demand for the information;
• The interest of the party subpoenaing the information outweighs the public interest in gathering and dissemination of news, including the concerns of the journalist;
• The subpoena or compulsory process is not being used to obtain nonessential or speculative information; and
• The information is relevant to the proper administration of the official proceeding for which the information is sought and is essential to the maintenance of a claim or defense of the person seeking the information

Criminal: In criminal cases, the privilege does not extend to published information. Journalists may be compelled to disclose or testify regarding unpublished information obtained or created while gathering news, if the person seeking the unpublished information shows that:

• All reasonable efforts have been exhausted to obtain the information from alternative sources; and
• The unpublished information is essential to the case or is central to the investigation of a criminal case 

Furthermore, journalists can be compelled to reveal their confidential sources if the disclosure is necessary to prevent reasonably certain death or substantial bodily harm. Disclosure may also be compelled if all other means of obtaining the source's identity have been exhausted and if the source:

• Was seen by the journalist committing a felony;
• Is a person who admitted to the journalist that he committed a felony; or
• Is a person for whom probable cause exists that the person participated in a felony

Constitutional Protection in Federal Court

Federal courts in the Fifth Circuit, which encompasses Texas, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. It applies to the identity of confidential sources and possibly to non-confidential information collected during newsgathering.

Who is Covered?

The privilege clearly applies to traditional "reporters," like those working full or part-time for a newspaper or television news program, but the law is not clear on whether it applies to amateur and non-traditionalists journalists or others who publish information online. Texas courts have indicated that the privilege applies to freelance writers, but not to freelancers who publish only informally and sporadically.

What Information is Protected?

The reporter's privilege clearly applies to the identity of confidential sources, but whether it protects other non-confidential information is less certain. When information is sought from a reporter in a criminal case, there is no privilege for non-confidential sources (i.e., sources who did not give information in return for a promise of confidentiality) or other non-confidential information collected during newsgathering. In civil cases, the privilege may apply to non-confidential information, but the law is not clear.

How Strong is the Protection?

The reporter's privilege is qualified, meaning that a court may order you to reveal protected information if it finds that the need to reveal that information outweighs your interest in protecting it. As a practical matter, courts are more inclined to order disclosure when you are a party to the lawsuit in question, or when a criminal defendant seeks information in order to mount a defense.

For more information on the reporter's privilege in the Fifth Circuit, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 5th Circuit.

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.

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.

For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium for the 4th Circuit and for Virginia.

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.

Note: This page covers information specific to Washington. See the section on Protecting Sources and Source Material for more general information.

Washington state has a shield law that protects the identity of confidential sources and other materials collected or prepared in the newsgathering process, such as notes and outtakes. The state legislature adopted the shield law in 2007, and no courts have applied it yet, so so many of its provisions are open to interpretation. However, some preliminary guidance is possible. First, the law protects anyone who runs or works in a news-related capacity for an "entity" (more below) that regularly provides news to the public, including through any kind of online media. Second, the shield's protection is qualified, meaning that a court may order you to disclose protected information if the information is unavailable elsewhere and there is a compelling public interest in disclosure.

Before the state legislature adopted the new shield law, Washington state courts recognized a common law (i.e., judge-made) privilege for reporters. Typically, when a legislature passes a specific law on a topic, such as a privilege for reporters, courts often say that the new statute takes the place of the common law on that topic and strips it of its force as law. While no court in Washington has said so, it seems unlikely that Washington courts will continue to recognize a common law privilege now that a shield law is in place. For more information on Washington's common law privilege, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Washington.

Washington state courts do not universally recognize a "reporter's privilege" based on the First Amendment to the U.S. Constitution or the Washington Constitution. One unpublished appellate court decision, issued prior to the passage of the shield law, hinted that a privilege under the First Amendment might exist. If Washington courts were to recognize a constitutional protection for reporters, that protection would exist in addition to the protections given by the shield law, and it probably would function like the reporter's privilege recognized by the federal courts in Washington.

Federal courts in the Ninth Circuit, which encompasses Washington, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. The reporter's privilege applies to the identity of sources and unpublished information collected or prepared in newsgathering, whether confidential or not (although protection is stronger for confidential information). Because it is qualified, the party seeking information from a reporter may overcome it upon a strong showing of need.

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.

Shield Law

Source and Statutory Text

Washington's shield law, located at Wash. Rev. Code § 5.68.010, states in relevant part:

Who is Protected?

The language of Washington's shield law is extremely broad. It covers the "news media," defined as

Any newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite station or network, or audio or audiovisual production company, or any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution.

It also covers any "employee, agent, or independent contractor" who is working (or has worked) for one of these entities. While no Washington court has interpreted this language, it clearly applies to online publishing. This would cover owners, employees, freelancers, and (most likely) volunteers for one of these entities.

A harder question is whether your website or blog qualifies as an "entity" that distributes news or information on a regular basis. If you publish only sporadically, then you likely fall outside the protection of the statute. More troubling, the meaning of "entity" is uncertain. The statute does not specifically require the entity to be formally organized, like a like a corporation, LLC, or nonprofit organization. But whether a court might read in such a requirement is less clear. Arguably, "entity" could refer to any platform for disseminating news or information, including a solo blog or website. Nevertheless, if you are operating in Washington, one of the benefits of creating a formal business entity would be increased certainty about coverage under the shield law.

What Information is Protected?

The Washington shield law protects confidential sources and any information collected "for potential communication to the public." This latter category would include unpublished materials, whether confidential or non-confidential, collected during your newsgathering activities.

By publishing information received from a confidential source or obtained during newsgathering, you do not waive (i.e., give up) the protection for the source or other, unpublished materials.

The shield law does not protect physical evidence of a crime.

How Strong is the Protection?

Washington's shield law is qualified, which means that a court may order you to disclose information under certain circumstances, even when you are covered by the statute (above). Specifically, a court will order you to reveal protected information if the party seeking your information can prove the following things by clear and convincing evidence:

• The person seeking the information has a reasonable chance of succeeding in his/her case, even without the information sought;
• The information is highly material (i.e., legally significant) and relevant;
• The information is critical or necessary to the maintenance of the person's claim, defense, or proof;
• The person seeking the information has exhausted all reasonable and available means to obtain it from alternative sources; and
• There is a compelling public interest in disclosure -- on this factor, a court may consider whether or not the information was obtained from a confidential source in evaluating the public interest in disclosure.

The same test applies in criminal and civil cases, and when the reporter is a party to the lawsuit in question. As a practical matter, however, the final factor ("compelling public interest in disclosure") will often weigh in favor of your disclosing information when the party seeking information is a criminal defendant trying to mount a defense. This factor will also weigh in favor of disclosure when your information is not confidential (i.e., not received in exchange for a promise of confidentiality).

Constitutional Protection in Federal Court

Federal courts in the Ninth Circuit, which encompasses Washington, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. An important case indicates that the privilege should protect a broad category of people engaging in newsgathering, stating that "what makes journalism journalism is not its format but its content." Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993). Although the law is not clear on this point, the privilege appears to protect the identity of sources and unpublished information, whether confidential or not. Protection likely is stronger, however, for confidential information.

The courts have applied the privilege in both civil and criminal cases, although its protection is stronger in civil cases. The courts have not upheld the privilege with respect to subpoenas issued in grand jury proceedings. The privilege is qualified, which means that a court may order you to reveal information if the need of the person seeking the information outweighs the policies favoring a privilege. The results of this kind of balancing test would be different depending on the facts of the particular case.

For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 9th Circuit.

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.