frequently asked questions
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By Douglas Lee
Lawyer, Ehrmann Gehlbach Badger & Lee

In 1972, the U.S. Supreme Court recognized in Branzburg v. Hayes that “news gathering is not without First Amendment protections.” The justices, however, could not agree about the form or breadth of those protections. As a result, no nationally recognized newsgatherer’s privilege exists. Instead, the protections currently in place for newsgatherers are set forth in a patchwork of inconsistent court decisions and state statutes.

Newsgatherers — a term that includes reporters, authors and television producers — often are subpoenaed to provide information in criminal and civil court proceedings. In some cases, the information sought is the identity of a confidential source. In others, the subpoenaing party seeks a reporter’s notes, video outtakes or other unpublished information. And in others, the newsgatherer is subpoenaed to testify about a crime or other event he or she witnessed.

Newsgatherers seek protection from these subpoenas for a variety of reasons. If newsgatherers cannot guarantee the confidentiality promised to some sources, they say, those sources will refuse to provide information that often is critical to important investigative reporting. Newsgatherers also claim that requests for nonconfidential, unpublished information interfere in news gathering by making them investigative arms of the government and by forcing them to spend time and money in court proceedings. Newsgatherers also cite the potential abuse they would suffer if litigants unhappy with a story or a book could routinely subpoena them to appear in court.

Many courts and state legislatures have recognized the validity of these concerns, particularly as they relate to confidential sources. In Baker v. F & F Investment, for example, the 2nd U.S. Circuit Court of Appeals in 1972 said that compelling a newsgatherer to disclose confidential sources “unquestionably threatens a journalist’s ability to secure information that is made available to him only on a confidential basis.” “The deterrent effect such disclosure is likely to have on future ‘undercover’ investigative reporting,” the court continued, “threatens freedom of the press and the public’s need to be informed . . . [and] undermines values which traditionally have been protected by federal courts applying federal public policy.”

Like the court in Baker, many federal courts have recognized a “qualified” newsgathering privilege, that is, a privilege, which can be overcome in certain circumstances, against testifying or producing information. These courts have held that such a privilege is rooted in the First Amendment and supported by the decision in Branzburg. Other federal courts, however, have rejected the existence of such a privilege, saying that neither the First Amendment nor Branzburg requires that newsgatherers be treated differently than other citizens who receive a subpoena.

In response to these contradictory federal court rulings, many state courts and legislatures have stepped into the fray. Some state courts, for example, have interpreted the First Amendment and/or their state constitution’s equivalent to offer protections for newsgatherers. In addition, more than 30 states and the District of Columbia have passed laws protecting newsgatherers from unjustified subpoenas. Such statutes often are referred to as “shield laws.”

Although the privileges recognized by the federal and state courts and created by the state legislatures vary in detail, most generally provide that the privileged information cannot be obtained unless the party seeking the information can establish that:

  • The information is highly material and relevant to the case at issue.
  • A compelling need exists for the information.
  • The information cannot be obtained by other means.

The privileges also differ in the types of information that is protected. Some privileges, for example, protect only the identity of confidential sources, while others protect all unpublished information. The privileges also differ in applicability, as some apply in both criminal and civil cases and others apply only in civil proceedings.

Shield laws and the newsgatherer’s privilege receive the most attention when they fail to protect a reporter or author. In these cases, the newsgatherer usually is ordered to reveal a confidential source or to provide unpublished information. If the newsgatherer refuses, he or she may be found in contempt of court and jailed. Vanessa Leggett, a Houston author, spent 168 days in jail in 2001 and 2002 after she refused to break promises of confidentiality to her sources.

As more and more newsgatherers work on the national stage — through television, books and the Internet — the lack of a national newsgatherers privilege is more and more problematic. Without a national privilege, these newsgatherers are subject to different and contradictory standards, with little guidance as to which standard might apply in a particular case. Which state’s law applies, for example, if a reporter working in one state is subpoenaed to testify in another state? Or if a reporter promises confidentiality to a source in a state that protects confidentiality but then is subpoenaed to reveal that source’s identity in a state that does not recognize the privilege?

These and other similar questions have not yet been answered. Thirty years after it decided Branzburg, the Supreme Court had the opportunity to resolve these issues in Leggett’s case. The court, however, declined to accept her appeal. For now, at least, the newsgatherer’s privilege and the issues surrounding it will continue to evolve at the lower federal court and state levels.



National shield law needed, press lawyer says
Congress must enable reporters to keep their confidential sources protected, Bruce Sanford says. 10.24.04

R.I. reporter convicted of criminal contempt
Jim Taricani, who faces up to six months in prison for refusing to identify source, calls ruling 'assault on journalistic freedom.' 11.18.04

Media groups troubled by R.I. reporter's conviction
Press organizations praise WJAR's Jim Taricani, say case points to need for federal shield law for journalists. 11.19.04

Senator proposes bill to protect reporters who won't reveal sources
'A free press is the best guarantee of a knowledgeable citizenry,' Christopher Dodd, D-Conn., says after introducing legislation. 11.22.04

Lawyer comes forward as convicted reporter's confidential source
Joseph Bevilacqua Jr. acknowledges leaking FBI videotape to WJAR's Jim Taricani but claims he never asked that his identity be kept secret. 12.02.04

Bill to create federal shield law introduced in House
Legislation sponsored by Reps. Mike Pence, Rick Boucher would also protect news media from having to reveal confidential sources. 02.02.05

Intel panel complains press leaks help U.S. foes
Those disclosing classified info should be more vigorously prosecuted, commission warns; excessive secrecy more harmful than leaks, AP attorney counters. 04.01.05

Journalist shield bill heads for hearings; support grows
But lawmakers acknowledge that passage, by no means certain, wouldn’t help two reporters now facing jail for protecting sources. 04.29.05

Lawyers' group backs federal protection for journalists
American Bar Association rejected supporting shield law 30 years ago, but reconsidered idea after jailing of New York Times reporter. 08.11.05

Senators question jailing of Times reporter
Senate Judiciary Committee hears testimony from Judith Miller, others about proposed national shield law to protect confidential sources. 10.19.05

Policinski: Ignorance poses major threat to first freedoms
Fear, apathy among other dangers, First Amendment Center executive director says during speech at Freedom of Information Oklahoma conference. 11.15.05

Conn. legislature approves journalist shield law
Gov. Rell's spokesman says she'll sign bill; opponent of measure says it would make reporters a privileged class. 05.04.06

Revised shield-law proposal picks up Senate support
Measure's authors add exceptions that could force reporters to disclose sources if they witness a crime or obtain information deemed secret by law. 05.19.06

Calif. appeals court: Shield law protects online reporters, bloggers
Unanimous panel denies Apple Computer Inc.'s bid to identify sources of leaked product information that appeared on Web sites. 05.30.06

5 news organizations to pay Wen Ho Lee
Settlement ends proceedings against reporters who were protecting confidential sources. 06.02.06

Sponsors hold out hope for federal press shield law
Indiana Republicans acknowledge limited time left for congressional approval this session, more compromises may be necessary. 07.26.06

Bush administration opposes journalist shield law
Deputy attorney general tells Senate panel that proposal to protect reporters from having to identify their sources would encourage leaks of classified information. 09.21.06

Pa. appeals court says reporter may protect source's identity
Panel overturns lower court ruling that had found importance of grand jury secrecy outweighed protections of state shield law. 01.08.07

At ASNE, Specter advocates passage of shield law
Pennsylvania senator says journalists do more to shed light on corruption and mismanagement 'than all congressional oversight combined,' but fear of being jailed can hinder their work. 03.28.07

Wash. state enacts sunshine, reporter shield laws
One measure mandates study of 300-plus exemptions to public-records law; other protects journalists from being jailed for refusing to reveal confidential sources. 04.30.07

Lawmakers make new bid to pass federal shield law
Anticipating objections from White House, sponsors have included exceptions that would apply if judge determines interest in disclosing source outweighs interest in newsgathering. 05.03.07

White House again voices opposition to shield law for reporters
Justice Department official says bill's broad definition of who is a journalist includes bloggers, thus would pose significant problems for federal investigators. 06.15.07

House panel backs bill to allow reporters to keep sources secret
News media say shield law is needed to ensure public is informed about government corruption, but Bush administration says it could harm national security. 08.02.07

Senate panel moves ahead with bill to create media shield law
Letters from two executive-branch officials warn that making it harder for government to track down leaks could endanger national security. 09.28.07

House votes to give journalists shield for confidential sources
Co-sponsor Mike Pence, R-Ind., says measure 'is not about protecting reporters, it's about protecting the public's right to know.' 10.17.07

Subpoenas issued to 3 Seattle Times reporters
City attorney — also head of state's Sunshine Committee — says information would help city defend itself against fired police officer's defamation suit. 12.03.07

Seattle drops demand that newspaper identify sources
City withdraws subpoenas issued to three Seattle Times reporters, saying it had not meant to challenge newspaper's ability to protect confidential sources. 12.06.07

Utah high court drafts journalist shield law
Proposal would make it difficult for lawyers, judges to force news reporters to reveal confidential sources. 12.15.07

Utah high court adopts broad privilege for reporters
New rule 'provides near-absolute protection for confidential sources,' says attorney for state media coalition. 01.25.08

Reporter asks appeals court to block contempt order, fines
Lawyers for former USA Today writer Toni Locy tell D.C. Circuit that judge is making demands that are 'vastly overbroad.' 03.11.08

Bush officials mount campaign against media-shield bill
In letters to senators, Attorney General Michael Mukasey, others say measure could harm national security, would encourage more leaks of classified data. 04.04.08

McCain says he 'narrowly' backs shield law
GOP presidential candidate criticizes potential harm to national security, but also says information from anonymous sources can do good. 04.15.08

Attorneys general back federal media shield
37 state officials sign on to letter; measure faces uncertain future in Senate as some Republicans strongly oppose bill allowing reporters to protect sources. 06.20.08

Lawmakers chide attorney general for opposition to shield bill
Michael Mukasey tells House committee that current laws limiting government's ability to force reporters to reveal sources are adequate. 07.24.08

Media shield stalls in Senate
Republicans block measure, saying chamber should act instead on energy bill. 07.30.08

Mont. judge: Shield law protects anonymous commentators
Court rejects former candidate's bid for identities of those who posted comments on Billings Gazette's online edition. 09.04.08

Ex-prosecutor gets go-ahead to question Detroit reporter
Federal judge rejects David Ashenfelter's bid to protect confidential sources, saying court is bound by precedent set by 6th Circuit, which doesn't recognize journalist's privilege. 09.11.08

Pa. high court agrees reporter can protect source
'The news media have a right to report news, regardless of how the information was received,' chief justice writes for majority. 09.26.08

Branzburg v. Hayes, reporters’ privilege & circuit courts
By Bill Kenworthy A guide to how circuit courts have ruled on reporters’ privilege in protecting confidential sources. 07.12.05

State shield statutes & leading cases
By Bill Kenworthy State-by-state compilation of journalist-shield statutes, cases. 10.17.05

2004 confidential-sources survey

Track shield laws, subpoenas, confidentiality cases here

Jailed & subpoenaed journalists — a historical timeline

Newsgatherers may feel pinch of 7th Circuit's ruling on privilege
By Douglas Lee Judges back trial court's decision that journalists' unpublished taped interviews aren't protected. 08.28.03

Taking prisoners in the war on journalism
By Paul K. McMasters Hunt for whoever leaked CIA agent's name puts shadow of jail over journalists instead of leakers. 10.24.04

Journalists need a get-out-of-jail-free card
By Paul K. McMasters Law enforcement wants journalists to help do its investigating — and is filing charges against them if they refuse. 11.28.04

'Do Journalists Need a Better Shield?'
Paul McMasters and Geoffrey R. Stone debate issue of journalist shield law (re-posted by permission from the Legal Affairs magazine Web site). 12.14.04

Does it matter that the press is under siege?
By Paul K. McMasters Wen Ho Lee settlement marks another loss of ground in journalists’ efforts to report thoroughly, fairly on an increasingly secretive federal government. 06.18.06

When these reporters make a promise, it’s for keeps
By Gene Policinski San Francisco Chronicle journalists covering BALCO may have put themselves in awkward position with confidential source, but cost of breaking pledge would have been high. 02.25.07

Internet expanding scope, meaning of ‘free press’
By Gene Policinski Bloggers, citizen journalists raise legal issues about who constitutes 'the press' — including whom a proposed federal shield law would protect from revealing confidential sources. 06.03.07

Fireworks over journalists’ donations raise issue of ‘journalist as citizen’
By Gene Policinski Many news professionals claim to be a special class when it comes to protecting sources, but some apparently also want to be 'just like any citizen' when it comes to giving money to candidates. 07.01.07

Libby’s legacy: The conservative case for a national shield law
By Michael Berry Prosecutors aren't just subpoenaing reporters in cases where national security might be compromised — they're going after reporters’ sources for stories on athletes’ steroid use and street protests. 01.18.08

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