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.
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
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.