State-by-State Guide to the Reporters Privilege for Student Media

(Alabama – Illinois)


SL = State has enacted a Shield Law

CRP = State has a Court-Recognized Privilege, generally based on the state constitution or federal First Amendent.

Alabama (SL, CRP)
Shield Law: ALA. CODE Section 12-21-142 (West, WESTLAW throughEnd of 2002 Regular Session)

The shield law protects persons “engaged in, connectedwith or employed on” any newspaper, radio or television stationfrom revealing their sources while engaged in newsgathering activities.There are currently no court cases in which the Alabama statutehas been applied to student journalists. Nevertheless, the Alabamacourts have interpreted the statute broadly and its language wouldseem to include student journalists. The law requires that thematerial sought to be shielded must be either published or broadcastbefore the protection comes into effect. The law does not specifywhether the information (as opposed to the source of information)gathered by the reporter is also confidential. Neither does itspecify whether a reporter must have promised his source confidentialityin order for the law to apply.

Alabama courts have also recognized a qualified reporter’sprivilege under the First Amendment to the United States Constitution.

Alaska (SL, CRP)
Shield Law: ALASKA STAT. Sections 09.25.300-.390 (West, WESTLAWthrough 2002 Replacement Set)

Reporters “regularly engaged” in collecting or writingnews for a “news organization” are protected from compelleddisclosure under the Alaska shield law unless the nondisclosurewould “result in a miscarriage of justice or the denial ofa fair trial . . . or be contrary to the public interest.”A news organization is defined as an individual or group thatpublishes a newspaper with a general readership at regular intervalsor “broadcasts news to the public.” Presumably, a publicationthat is distributed on and off school grounds could be said tohave a general readership because non-school-related individualswould also read it. Accordingly, student media broadcasts thatcan be heard off school grounds should be considered as “broadcastto the public.” However, the courts have not decided thata student publication only distributed on school grounds or abroadcast only heard on school property would fall outside theprotection of the law. Furthermore, student journalists “regularlyengaged” in the news gathering business would more likelybe protected by the Alaska shield law if they write for the studentmedia organization on a frequent basis. The Alaska law looks asif it should apply to many student journalists.

While there are no appellate decisions in Alaska recognizinga court-based reporter’s privilege, Alaska trial courts have applieda qualified reporter’s privilege based on the United States Constitution’sFirst Amendment.

Arizona (SL, CRP)
Shield Law: ARIZ. REV. STAT. ANN. Section 12-2237 (West, WESTLAWthrough legislation effective Feb. 7, 2003) (“The ArizonaShield Law”); ARIZ. REV. STAT. ANN. Section 12-2214(West, WESTLAW through legislation effective April 7, 2003)(“The Arizona Media Subpoenas Law”)

The Arizona shield law codified Arizona’s qualified First Amendmentprivilege. The law protects persons “engaged in newspaper,radio, television or reportorial work” or “employedby a newspaper, radio or television station” from havingto reveal their sources for material obtained for publicationor broadcast. Although the statute does not specify whether areporter must promise his source confidentiality for the shieldlaw’s protections to be in effect, in Bartlett v. SuperiorCourt, the Arizona Court of Appeals held that the shield lawonly protects confidential sources. 722 P.2d 346 (Ariz. Ct. App.1986). According to the statute, information gathered by reportersmay be subpoenaed if the subpoena is accompanied by an affidavitstating, among other things: (1) that the affiant has attemptedto obtain each item of information from all other available sources,(2) the identity of those sources and (3) that the informationis relevant and material to the cause of action or defense assertedby the affiant. The law goes on to state that a subpoena not accompaniedby such an affidavit may be ignored. This shield law does notapply before a grand jury or magistrate during an investigativecriminal proceeding. In Matera v. Superior Court, 825 P.2d971, 973 (Ariz. Ct. App. 1992), the court of appeals further limitedthe law to reporters “engaged in the gathering and disseminationof news to the public on a regular basis” (emphasisadded). Student journalists who frequently write for a studentmedia organization would be afforded the greatest protection underthis ruling. While there are currently no cases in which the Arizonalaw has been applied to student journalists, the statute’s broadlanguage regarding who is protected would indicate that the lawwould give student journalists the same protection afforded others.

Courts in Arizona have also recognized a qualified privilegeunder the First Amendment to the U.S. Constitution.

Arkansas (SL, CRP)
Shield Law: CODE ANN. Title 16 Section 16-85-510 (West, WESTLAWthrough the 2002 Extraordinary Session)

Any “editor, reporter, or other writer for any newspaper,periodical, or radio station” is protected from revealinghis or her sources unless the party seeking disclosure can showthat the article was written in “bad faith, with malice,and not in the interest of the public welfare.” However,information obtained from the source must be “written, published,or broadcast” to protect the identity of the source. Theshield law does not specify whether the source must be promisedconfidentiality to be protected. In Saxton v. Arkansas GazetteCo., 569 S.W.2d 115 (Ark. 1978), the Arkansas Supreme Courtheld that the state’s shield law applied to both civil and criminalproceedings. The Saxton court also stated that even wherethe bad faith/malice requirement is met the party seeking disclosureshould also make a “reasonable effort” to obtain theinformation by alternative means. While the law itselfdoes not specify whether information is also protected from disclosure,a federal district court ruled that the law applies only to sourcesand does not protect outtakes. Williams v. ABC, 96 F.R.D.658 (W.D. Ark. 1983).

The shield law is not applicable in federal cases that onlyinvolve federal law. In re Grand Jury Subpoena ABC, 947F. Supp. 1314 (E.D. Ark. 1996). In In re Grand Jury thecourt looked to the state’s constitution (Art. 2, Sec. 6), insteadof the shield law but held that it did not protect a news organizationfrom turning over a video and transcripts to a federal grand jury.While the Arkansas Supreme Court has interpreted this constitutionalprovision to include a reporter’s privilege for confidential sources,it does not seem to reach any further than that.

There are no cases in which the Arkansas statute has been interpretedwith student journalists in mind. However, its broad languagewould seem to indicate that students are entitled to the sameprotection as other journalists.

Courts in Arkansas have also recognized a qualified privilegeunder the Arkansas state constitution (art. 2, sec. 6).

California (SL, CRP)
Shield Law: CAL. EVID. CODE Section 1070 (West, WESTLAW throughCh. 3 of 2003-04 Reg. Sess. Urgency Legislation, Ch. 4 of 1stEx. Sess. Urg. Legis., & Ch. 1 of 2nd Ex. Sess.); CAL. 1, section 2.

While the state’s shield law only explicitly bars contemptsanctions, California courts have interpreted the law as givingnon-party journalists and other persons connected with or employedby news organizations absolute protection to refuse both disclosureof sources and unpublished information in civil cases. However,in criminal cases the protection conveyed by the statute is limitedby the Sixth Amendment, which can only be asserted by a criminaldefendant when the information sought is essential to the defendant’sfair trial. Miller v. Superior Court, 21 Cal. 4th 883,901 (1999). When such a showing is made, the statute’s privilegecan be overcome where it is shown that the material sought tobe protected is: (1) necessary, (2) relevant, (3) unavailablefrom less intrusive sources and (4) in the case of subpoenas bycriminal defendants, reasonably likely to result in exonerationof the defendant. Hammarley v. Superior Court, 153 Cal.Rptr. 608 (1979).

Further, the statue has been interpreted to protect both confidentialand non-confidential information. Rosato v. Superior Court,51 Cal. App. 3d 190 (1975), cert. denied, 427 U.S. 912(1976). Published information, which is not explicitlyprotected by the statute, has received some protection from thecourts. In Fost v. Superior Court, the court held thatpublished information can only be successfully subpoenaed if thefour-part test for unpublished information is met. 80 Cal. App.4th 724 (2000). A similar protection has also been applied inlibel actions, with the added requirement that the plaintiff mustmake a basic showing that the alleged libelous material is false.The court must then balance the need for the material againstthe need for confidentiality. Mitchell v. Marin County SuperiorCourt, 690 P.2d 625 (Cal. 1984).

In addition to the statute-based privilege, the CaliforniaSupreme Court has recognized a reporter’s qualified privilegeunder both the First Amendment and the California Constitution(Art. I, Sec. 2). California courts have viewed the scope of thisas nearly identical to the shield law. Therefore, most journalistsrelying on the reporter’s privilege will cite to both the constitutionalprotection and the statutory privilege.

In April 2000, a Sacramento County Superior Court judge quasheda subpoena issued to the editor of the student newspaper at CaliforniaState University at Sacramento. California v. Chavez, CaseNo. 99M11384 (Calif. Super. Ct. Sacramento Cty. April 7, 2000).After the editor took pictures of an arrest at a football gameand published a photo of the arrest on the front page, the subjectof the pictures subpoenaed the editor’s negatives and unpublishedphotos. The judge quashed the subpoena because the defense attorneydid not exhaust all possible alternative sources. The judge foundthat, because the subpoena was issued a week after the pictureswere published and the only witness listed in the article wasnot contacted, the defense did not meet its burden. (See story,SPLC Report, Spring 2000). In addition to the ruling inthis case, the broad language of the statute indicates that studentsare entitled to the same protections as other journalists.

Colorado (SL)
Shield Law: COLO. REV. STAT. ANN. Sections 24-72.5-101 to24-72.5-106 (West, WESTLAW through the end of the 2002 secondregular and third extraordinary sessions of the 63rd General Assembly& S.C.R. 02-1, 02-2 and 02-6)

Colorado’s press shield law protects “newspersons”who as part of a judicial proceeding refuse to disclose any “newsinformation [they] received, observed, procured, processed, prepared,[wrote] or edited.” The law defines newspersons as any memberof the mass media who participates in the process of disseminatinginformation to the public. While the Supreme Court of Coloradohas not had the opportunity to further define a newsperson, inHenderson v. Colorado, 879 P.2d 383 (Colo. 1994), the courtfound that a helicopter pilot was “acting as a newsperson”when he flew policemen over a suspected illegal drug operation.The court said that the statute’s definition of a newsperson isbroad and the pilot, who was also employed by a television newsstation to observe the activity of the law enforcement officials,met the statute’s requirement.

The information covered by the statute includes confidentialand non-confidential information as well as sources and any informationgathered in the news process. There are three explicit exceptionsto the shield law’s qualified privilege. The shield law’s protectionsdo not apply where: (1) the information was obtained from a pressconference, (2) the information has been published or broadcastor (3) the reporter has witnessed a crime and substantially similar”information cannot be obtained by any other means.”

In addition to the instances where a journalist cannot assertthe shield law’s privilege, a journalist may be legally requiredto divulge information if the party seeking the information canshow that: (1) the information is directly relevant to the proceeding,(2) it “cannot be obtained by any other means” and (3)the interests of the party seeking the subpoena outweigh the journalist’sinterests. The shield law can only be waived by the newsperson.

Colorado courts have refused to find a qualified privilegein either their state constitution or in the First Amendment.Gagnon v. District Court In & For Cty. Of Fremont,632 P.2d 567, 569 (Colo. 1981): Pankratz v. District CourtIn & For City & Cty. Of Denver, 609 P.2d 1101, 1103(Colo. 1980).

The shield law’s requirement that the information be disseminatedto the “public” might be a concern for student media.However, at the very least, the shield law should protect studentmedia publications and broadcasts that reach both off- and on-campusaudiences. While there have been no reported decisions involvingstudent media to date, Colorado students would appear to be inpretty good shape.

Connecticut (SL, CRP)
Shield Law: Conn. Gen Stat § 52-146t

The shield law protects “any person who is or has been an employee, agent or independent contractor of the ‘news media’ and has been engaged in gathering, preparing or disseminating information to the public for such entity, or any other person supervising or assisting such person with gathering, preparing or disseminating information.”

For the purposes of the Connecticut statute, the “news media” consists of “any newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite or other transmission system or carrier, or channel or programming service for such station, network, system or carrier, or audio or audiovisual production company that disseminates information to the public, whether by print, broadcast, photographic, mechanical, electronic or any other means or medium.”

Journalists cannot be compelled to testify, produce or otherwise disclose “any information obtained or received, whether or not in confidence, by the news media in its capacity in gathering, receiving or processing information for potential communication to the public, or the identity of the source of any such information, or any information that would tend to identify the source of any such information… unless a court finds by clear and convincing evidence that 1) based on information obtained from sources other than the news media, there are reasonable grounds to believe that a crime has occurred or to sustain a cause of action, 2) the information or identity of the source is critical or necessary to the investigation or prosecution of a crime or to a defense of the crime or to the maintenance of a party’s claim, defense or proof of a material issue, 3) the information or the identity of the source of such information is not obtainable from any alternative source and 4) there is an overriding public interest in the disclosure.

There are currently no court cases in which protection under the statute has been applied or denied to student journalists. However, the broad language of the statute protecting “agents” or “independent contractors” of news media, in addition to paid employees, suggests student journalists should be be covered.

Before enactment of the statute, the courts in Connecticut had recognized a qualified First Amendment privilege protecting confidential sources, although its applicability to students has not been tested. Connecticut LaborRelations Board v. Fagin, 370 A.2d 1095 (Conn. 1976).

District of Columbia (SL)
Shield Law: D.C. CODE ANN. Section 16-4701-04 (LEXIS throughD.C. Register, Vol. 50, No. 1, Jan. 10, 2003) (“Free Flowof Information Act”)

The District of Columbia has one of the broadest shield lawprotections in the country. In Prentice v. McPhilemy, 27Med. L. Rep. 2377, 2380 (D.C. 1999) the DC Superior Court foundthat a book author, who did not live in DC or collect the informationfor his book in DC, but nevertheless published it there, couldavail himself of the DC statutory privilege. The court also saidthat the “free flow of information” act was not limitedto just the “fast paced news media.” The statute’s protectionsextend to “any person who is or has been employed by thenews media in a news gathering or news disseminating capacity.”The court seemed less concerned with the author’s employment andmore focused on whether he was “in the pursuit of professionalactivities.” Id. at 1283. While there are no reportedcourt decisions involving student journalists, this broad viewof the statute suggests that it is likely courts would extendthe privilege to cover student journalists.

The DC privilege is an absolute protection for sources, whetherconfidential or not, from compelled disclosure. Unpublished newsor information is protected unless: (1) the news or informationis relevant to a significant legal issue, (2) it could not beobtained by alternative means and (3) an overriding public interestexists in disclosure.

Delaware (SL, CRP)
Shield Law: DEL. CODE ANN. tit. 10, subchapter II, sections4320-4326 (West, WESTLAW through Oct. 10, 2002 Executive Section)

Students may have trouble qualifying as reporters under Delaware’snarrow shield law. Anyone who earns his or her “principallivelihood” by reporting or who spent three or four of theproceeding eight weeks working at least 20 hours per week “inthe practice of, obtaining or preparing information for dissemination”meets the requirements of the statute.

Where they do qualify, reporters can be protected from disclosingboth sources and information in all proceedings except those ofa grand jury. However, a court can order public disclosure ofmaterial when it is in the public interest if it can be proventhat the reporter’s assertion of a need for non-disclosure isfalse.

While a reporter should cite to the shield law when refusingto testify or disclose information, the courts also recognizethat a common law-based reporter’s privilege exists in Delaware.See, e.g., Fuester v. Conrail, 22 Media Law Rptr. 2376(1994).

Florida (SL, CRP)
Shield Law: FLA. STAT. ANN. Section 90.5015 (West, WESTLAWthrough the End of 2002 Regular Session and 2002 Special ‘E’ Session)

The Florida shield law only covers professional journalistswho are “salaried employees” “regularly engaged”in newsgathering for “gain or livelihood.” The law mayappear to provide little protection to student journalists. Ina recent circuit court ruling, however, the University of Florida’sstudent television station was not required to turn over the videotapeof an interview subpoenaed by the Florida Bar Association. FloridaBar v. Smith, No. 2002 CA 4147 (Fla. Cir. Ct. Jan. 10, 2003).While the subpoena was issued to the news director, a full-timeemployee at the station and not to a student journalist, the judge’sdecision did mention that the “the videotape was obtainedwhile gathering news.” In actuality, the student reportersconducted the interview and not the news director. This shouldprovide student journalists some hope if the court’s decisiondoes turn on the newsgathering function of reporters and not theirsalary.

There is another concern for the student media. The only newscovered by the statute must be of “public concern relatingto local, statewide, national or worldwide issues or events.”News of a minor school event might not be of public concern oreven considered local news under this law.

Where applicable, the shield law protects information as wellas the source. It also specifically expands the law to cover bothpublished and unpublished information as well as information alreadybroadcast. The Florida courts have construed the law to extendto both confidential and non-confidential sources and information.State v. Davis, 720 So.2d 220, 222 (Fla. 1998).

The shield law does not protect “physical evidence, eyewitnessobservations or visual or audio recordings of crimes.” However,only tangible evidence and observations of the actual crime areoutside its scope. Other information that concerns the crime shouldbe protected to the same extent as other information. NewsJournal Corp. v. Carson, 741 So.2d 572, 574-75 (Fla. 1999).

Florida also recognizes a qualified First Amendment privilegeagainst compelled disclosure of a journalist’s sources and information.A three-part test is applied to determine whether disclosure willbe compelled. If the information is relevant, it cannot be obtainedby alternative means and there is a compelling interest for theinformation, disclosure will be required. This test applies toboth civil and criminal trials. It was used by the Florida SupremeCourt in Tribune Co. v. Huffstetler, 489 So.2d 722 (Fla.1986), in which the court reversed a reporter’s contempt convictionfor not revealing a source.

Georgia (SL, CRP)
Shield Law: GA. CODE ANN. Section 24-9-30 (West, WESTLAW throughend of the 2002 Regular Session)

Journalists in Georgia receive some protection under the state’sshield law. The law is available to “any person” whois “engaged in the gathering or dissemination of news forthe public through a newspaper, book, magazine or television broadcast.”The statute applies to both confidential and non-confidentialinformation, but it can be waived if the information sought hasbeen published. However, in In re Paul, 513 S.E.2d 219,223-24 (Ga. 1999), the Georgia Supreme Court held that publishinga story does not waive the shield law’s privilege for relatedunpublished information. The court also found that the statuteextends to a “source’s identity” as well as the “informationreceived from the source.”

While there are no reported decisions involving student journalists,the broad language of the statute would imply that student journalistsare covered under its protections. Keep in mind that a journalistmust be gathering the information for dissemination to the publicin order to come under the protection of the statute. Vancev. Krause, 18 Media L. Rep. 1572 (Ga. 1990). While the courtshave not defined public dissemination, student publications thatalso distribute off-campus would have the greatest chance of meetingany possible challenges to their claim of protection under theshield law.

Before the shield law’s enactment, the Georgia Supreme Courtrefused to find a reporter’s privilege under the state’s constitutionin the context of a grand jury proceeding. Vaughn v. State,259 Ga. 325 (1989). However, in cases where no statutory privilegeapplies, Georgia’s courts have still taken measures to preventreporters from forced disclosure, particularly where there hasbeen no showing that the evidence is necessary to prove the claim.See, Ledee v. Devoe, 225 Ga. App. 620, 625 (1997).

Hawaii (SL, CRP)
Shield Law: Haw. Rev. Stat. § 4-33-621 Note

The shield law took effect in 2008 and is set to expire on June 30, 2011, unless the Hawaii legislature extends its duration.

The statute protects journalists and newscasters from being compelled to testify or produce evidence regarding “the source, or information that could reasonably be expected to lead to the discovery of the identity of the source, of any published or unpublished information obtained by the person while so employed or professionally associated in the course of gathering, receiving, or processing information for communication to the public” or “any unpublished information obtained or prepared by the person while so employed or professionally associated in the course of gathering, receiving, or processing information for communication to the public.”

Though there is no case law applying the statute to student journalists, the language of the statute suggests the statute would apply to most student journalists. The statute’s protection extends to “any individual who can demonstrate by clear and convincing evidence that: 1) the individual has regularly participated in the reporting or publishing of news or information of substantial public interest for the purpose of dissemination to the general public, 2) the individual’s position is similar to that of a journalist or newscaster upon taking into account the method of dissemination, 3) the individual’s interest in protecting sources or unpublished information is “materially similar” to the individual’s interest in newsgathering, and 4) the public interest is served by extending the statute’s protections to the individual in the given circumstances.

In addition to the recently enacted statutory privilege, a federal court in Hawaii has recognized a qualified common-law privilege to refuse to divulge confidential sources, but refused to extend the privilege to libel suits. DeRoburt v. Gannett, 507 F. Supp. 880 (D. Haw. 1981). Any such privilege would not withstand a subpoena if: (1) the information is relevant, (2) the information cannot be obtained elsewhere and (3) the party seeking the information has a compelling interest in it. Id. at 886 (quoting Miller v. Transportation Press, Inc., 621 F.2d 721, 726 (5th Cir. 1980)).

Idaho (CRP)
Shield Law: None

The Idaho Supreme Court has recognized a qualified privilegegrounded in the First Amendment and the Idaho Constitution thatallows a journalist to refuse to disclose confidential sources.When faced with a demand to compel disclosure, a court will balancethe interests of the parties by questioning whether the informationsought is relevant, whether it can be obtained in another wayand whether the interest in the information is compelling. Inre Wright, 700 P.2d 40 (Idaho 1985). Idaho courts have alreadylimited the privilege recognized in Wright to unpublishedand confidential information.

Although Wright and the other Idaho court decisionsconcerning the reporter’s privilege involved only professionaljournalists, there is nothing to suggest that courts will furtherlimit the decision in Wright to exclude student journalistsfrom the state’s court-recognized protection.

Illinois (SL, CRP)
Shield Law: 735 ILL. COMP. STAT. 5/8-901 to 8-909 (LEXIS throughpublic act 93-001)

No one “regularly engaged in the business of collecting,writing or editing news for publication through a news mediumon a full-time or part-time basis” can be compelled to disclosethe sources of any confidential or non-confidential informationunder the Illinois shield law. A news medium includes any newspaperor periodical “issued at regular intervals . . . andhaving a general circulation.” If a high school or collegepublication is distributed off campus as well as on campus, itprobably could be considered to have a general circulation. Whethera student journalist works enough hours to be considered part-or full-time or “regularly engaged in the business of”is more questionable, especially if the student is unpaid. Illinoiscourts do not appear to have been directly confronted with theapplication of the law to young journalists. However, at leastone court did include photographers in the list of protected individuals.People v. Slover, 753 N.E.2d 554 (Ill. 2001). While a librarianin the same case was unable to claim the privilege at the trialcourt level, the appellate court emphasized that photojournalistscollect news; it did not comment on their full- or part-timestatus. Id. at 557. As a result high school and collegestudents journalists would appear to be in pretty good shape.

Don Craven, general counsel for the Illinois Press Association,said that he has never been faced with a situation where a courtor prosecutor argued that student journalists should not be coveredby the shield law simply because they are students. “We simplynever had a problem with that and I don’t think we would,”he said.

A reporter may be divested of the privilege if alternativesources of information have been exhausted and disclosure “isessential to the protection of the public interest involved or,in libel or slander cases, the plaintiff’s need for disclosure. . . outweighs the public interest in protecting that confidentialityof sources of information.” In addition, the statute doesnot apply to libel cases when the reporter is the defendant.

While most courts have looked to the shield law as the sourcefor recognizing a reporter’s privilege in Illinois, at least onerelied solely on the First Amendment as the basis for such protection.Gutierrez c. Shafer, 9 Media L. Rep. 1054 (Ill. Cir. Ct.1982). Finally, in a 1999 case involving the student newspaperat Southern Illinois University, a state court judge, in a rulingfrom the bench, appeared to rely on the common-law “specialwitness doctrine” to find that a student reporter did nothave to turn over his notes to a public defender who had subpoenaedthem. (See story, SPLC Report, Fall 1997).