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 This privilege protects the identity of sources and unpublished information obtained or prepared in the newsgathering process, such as notes and outtakes.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
[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, procured, transmitted, compiled, edited or disseminated has a privilege to refuse to disclose, in any legal or quasilegal proceeding or before any investigative body, including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative committee, or elsewhere
a. The source, author, means, agency or person from or through whom any information was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated, or delivered; and
b. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated.
- . . .
N.J. Stat. § 2A:84A-21a
a. "News media" means 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.
b. "News" means any written, oral or pictorial information gathered, procured, transmitted, compiled, edited or disseminated by, or on behalf of any person engaged in, engaged on, connected with or employed by a news media and so procured or obtained while suchrequired relationship is in effect.
. . .
h. "In the course of pursuing his professional activities" means any situation, including a social gathering, in which a reporter obtains information for the purpose of disseminating it to the public, but does not include any situation in which a reporter intentionally conceals from the source the fact that he is a reporter, and does not include any situation in which a reporter is an eyewitness to, or participant in, any act involving physical violence or property damage.
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.
