Journalists argue that the law recognizes a First Amendment-based privilege that protects them from legal actions that threaten the integrity of their effort to gather and disseminate news. The subpoena is one legal action that poses such a threat. Common sense and experience suggests that some sources will refuse to share sensitive information with journalist if they are viewed as an extension of a law enforcement or prosecutory agency. Journalists argue, and many state legislatures have agreed, that reporter’s privileges encourage the active and vital exchange of information necessary to keep the public fully informed about the world in which they live.
First Amendment Privilege
The Supreme Court’s decision in Branzburg v. Hays, 408 U.S. 665 (1972), has been widely interpreted as recognizing that a reporter’s privilege under the First Amendment does exist in some circumstances. A First Amendment Privilege can be overcome when a court is persuaded that the information being sought from the journalist is:
- highly material and relevant
- necessary or critical to the maintenance of the legal claim, and
- not obtainable from the other available resources.
Privilege Based on State Common Law or Constitution
Independent of any First Amendment privilege or shield law, several states have found that a reporter has a qualified privilege to refuse to reveal sources or information under state law. The courts have found that such a privilege exists either at common law or in the state constitution, or both. In these states, the privilege is in addition to the First Amendment.
State Shield Laws
Besides the court-recognized privileges, lawmakers in over 30 states and the District of Colombia have passed “shield laws” that codify some variation of the reporter’s privilege (see list below). In most of these states, the privilege is qualified, often adhering to a Branzburg-like balancing test, discussed above. However, in a few states, like Montana and New York, the protection is absolute. The protections offered by these statutes may differ depending on whether the subpoena seeks the identity of a source or unpublished information. Some shield laws offer protection for sources or information only if the reporter expressly promised confidentiality.
- States with shield laws: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Delaware, District of Columbia, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, Tennessee.
- States with court-recognized privileges (some states have both a shield law and a court-recognized privilege): Alabama, Alaska, California, Connecticut, Delaware, District of Columbia, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, New Hampshire, New York, North Carolina, Ohio, Oklahoma, Pennsylvania, South Dakota, Texas, Utah, Vermont, Virginia, Washington, West Virginia, Wisconsin.
- States with neither: Hawaii, Wyoming.
Student Journalists and the Reporter’s Privilege
Most courts seem to treat student journalists like their non-student counterparts in reporters’ privilege cases unless the specific wording of a state shield law indicates the student is not entitled to protection.
Can School Officials Force a Student To Reveal Information?
Unless school officials seek the information through formal legal channels, it can be strongly argued that they simply lack the authority to force student journalists to reveal confidential information. Without a court-issued subpoena ordering disclosure, student reporters can claim that they are both protected by the First Amendment or state law from having to disclose such information and that they are under no obligation to respond to the demands of school officials. This argument would not apply to private school officials because they are not limited by the First Amendment. Students at private schools would have to rely on other legal protections and against censorship and public pressure. Also note that faculty advisers may have a more difficult time refusing the demands of their employers and may, for example, even have a legal obligation to reveal information about criminal activity or other wrongdoing on school grounds of which they are aware.
Federal law prohibits both federal and state officers and employees — including public school officials — from searching or seizing journalists’ “work product” or “documentary materials” in their possession even when the present a search warrant. The Privacy Protection Act of 1980 has some limited exceptions. A newsroom search may be allowed when the government is searching for: (1) certain types of national security information, (2) child pornography, (3) evidence that the journalists themselves have committed a crime, or (4) materials that must be immediately seized to prevent death or serious bodily injury. In addition, “documentary materials” may also be seized if there is reason to believe that they would be destroyed in the time it took to obtain them using a subpoena, or if a court has ordered disclosure, the news organization has refused and all other remedies have been exhausted.
Even though the Privacy Protection Act applies to both federal and state law enforcement officers, eight states — California, Connecticut, Illinois, Nebraska, New Jersey, Oregon, Texas and Washington — have their own statutes providing similar or even greater protection.
For more information and specific cases dealing with court-recognized privileges see:
- Student Media Guide to Protecting Sources and Information (includes a state-by-state guide)
- Reporter’s Privilege:A complete compendium of information on the reporter’s privilege — the right not to be compelled to testify or disclose sources and information in court — in each state and federal circuit. (A publication of the Reporters’ Committee For Freedom Of The Press)