Key:
SL = State has enacted a Shield Law
CRP = State has a Court-Recognized Privilege, generally based on the state constitution or federal First Amendent.
Indiana (SL, CRP)
Shield Law: IND. CODE Section 34-46-4-1 (West, WESTLAW throughEnd of 2002 1st Special Sess.)
In Indiana, reporters must “receive income” fromreporting and writing and be connected with or employed at “anewspaper or periodical . . . having a general circulation”or a licensed radio or television station to be covered underthe statute. If a student journalist meets the requirements, heor she will be protected from disclosing in any legal or non-legalproceeding the name of any confidential source obtained from reporting.The shield law has been construed to protect only confidentialsources of information rather than the information itself. Collegejournalists seem more likely to be covered by this statue than–high school journalists because high school journalists aregenerally unpaid.
Student media – particularly high school media – may have moreluck seeking protection under the state’s court-recognized reporter’sprivilege. In In Re Stearns, 489 N.E.2d 146 (Ind. 1986),a state court of appeals recognized a qualified First Amendmentprivilege protecting disclosure of non-confidential informationin a civil case. If the information desired is relevant, disclosureis critical to someone receiving a fair trial and other sourceshave been exhausted, the interests will be balanced to determineif compelled disclosure is warranted.
So far, Indiana courts have not distinguished between studentand commercial news media. For example, in In re: Matter ofan Investigation by the Prosecuting Attorney of Monroe County,Indiana, No. 53C049104CP00396 (Ind. Cir. Ct. Monroe Cty.,May 21, 1991), a state circuit court judge allowed an IndianaUniversity student photographer to argue – albeit unsuccessfully- that he was protected by the state’s qualified First Amendmentprivilege from having to provide a county prosecutor with photographshe had taken of a campus riot. The student, who normally workedfor the campus yearbook, had sold one of his photos to the IndianaDaily Student newspaper. In rejecting the student photographer’smotion to quash the subpoena, the judge did not question the applicabilityof the privilege to student media, but rather ruled that – atleast in Indiana – the First Amendment-based privilege (the studentdid not seek protection under the state shield law) did not applyto criminal investigations. The judge also noted that any harmto the First Amendment rights of the photographer were minimalbecause the student had merely witnessed and photographed theriot; he had not made any promises of confidentiality. (See story,SPLC Report, Fall 1991).
Recently, the Indiana Supreme Court in In re WTHR-TV (Statev. Cline), 693 N.E.2d 1 (Ind. 1998), also refused to extendthe First Amendment privilege to cover criminal cases.
Iowa (CRP)
Shield Law: None
Iowa does not have a shield law, but its courts recognize aqualified privilege under the First Amendment and the Iowa Constitution.The courts lean toward disclosure in criminal cases, grand juryproceedings and in libel suits. Iowa courts have held the privilegeprotects confidential, unpublished information as well as sources.Waterloo/Cedar Falls Courier v. Hawkeye Community College,646 N.W.2d 97 (Iowa 2002). In deciding whether to compel disclosure,the court asks whether the information is critical to the actionor defense and whether all other means of obtaining it have beenexhausted. A journalist requesting the privilege is protectedif he or she “falls within the class of persons qualifyingfor the privilege” and the information sought was obtainedas part of the “newsgathering process.” Unfortunately,the terms “class of persons” and “newsgatheringprocess” have not yet been defined by Iowa courts, althoughone district court extended the privilege to a freelance journalist.Stanfield v. Polk County, 18 Media Law Rptr. 1262 (IowaDist. Ct. 1990). Unless the courts say otherwise, it can be arguedthat student journalists are protected.
Kansas (SL, CRP)
Shield Law:
In 2010, the Kansas legislature enacted and the governor signed H.B. 2585, creating a qualified reporters’ privilege that covers all unpublished materials. The privilege can be overcome only be a showing of “compelling” need.
Although proponents believe that the law should cover at least staff members at mainstream college publications and broadcasts, the law is ambiguous because it defines a journalist as someone “employed” by an organization that regularly gathers and disseminates news to the public. This at least gives more students an argument for coverage than in states that require substantial financial compensation. For instance, a staff member working for a token stipend, or for college credit, might qualify as “employed” under the statute.
Prior to 2010, Kansas courts recognized a qualified privilege rooted in the First Amendment, protecting both sources and information leading to the identity of sources. The privilege is stronger in civil cases than in criminal ones. In State v. Sandstrom, 581 P.2d 812 (Kan. 1978), cert. denied, 440 U.S. 929 (1979), the Kansas Supreme Court said that “a newsperson has a limited privilege of confidentiality of information and the identity of news sources” based on the First Amendment. That court approved a case-by-case balancing of the need of the defendant to a fair trial against the reporter’s need for confidentiality.
Although the common-law privilege has never been tested in an appellate case involving student journalists, a lower court has allowed a college journalist to claim reporters’ privilege. In 1990, a Kansas trial court ruled that a student reporter for the Wichita State University newspaper did not have to disclose the identity of a confidential source. The student journalist was subpoenaed in a lawsuit that accused members of a fraternity of trespassing and vandalism. The plaintiffs in that case believed that, during his investigation for the story, the reporter uncovered the name of the fraternity member who set fire to their vehicle. The reporter did testify, but did not have to reveal the name of his source. During his testimony, the party who issued the subpoena decided not to file a motion to compel him to reveal the name. (See story,SPLC Report, Spring 1991).
Kentucky (SL)
Shield Law: KY. REV. STAT. ANN. Section 421.100 (West, WESTLAWthrough 2/1/03).
Kentucky’s shield law provides reporters with limited protection.While the law covers any person engaged in, employed by or connectedwith a newspaper, radio or television station, it only protectsthe identity of sources and applies only when the informationsupplied by the source is actually published or broadcast. Thelaw does not protect reporter’s observations (e.g. witnessinga criminal act), material obtained through personal investigationor any other information. Lexington Herald-Leader v. Beard,690 S.W.2d 374 (Ky. 1984); Branzburg v. Pound, 461 S.W.2d345 (Ky. Ct. App. 1971) (as modified), aff’d sub nom.,Branzburg v. Hayes, 408 U.S. 665 (1972).
The Kentucky Supreme Court rejected the idea of a reporter’scommon-law privilege under both the First Amendment and the KentuckyConstitution. Lexington, 690 S.W.2d 374; Branzburg v.Meigs, 503 S.W.2d 748 (Ky. 1971).
The bottom line is that Kentucky student journalists will probablybe entitled to the same statutory protection available to otherjournalists. However, due to the law’s narrow scope, caution mustbe exercised when making promises of confidentiality.
Louisiana (SL, CRP)
Shield Law: LA. REV. STAT. ANN. Sections 45:1451-1459(West, WESTLAW through all 2002 First Extraordinary & RegularSession Acts)
The Louisiana law covers people regularly engaged in editorialactivities of the news media. It defines news media to includeradio, television, press associations, etc., and any newspaperor periodical issued at regular intervals and having a paid generalcirculation. Unfortunately, there are no cases where the law hasbeen applied to student journalists, so it is unclear whetherstudent journalists would be afforded its protection. It couldcertainly be argued that student journalists are “regularlyengaged” in editorial activities. Many student newspapersare distributed free on campus, which might seem to disqualifythe paper for the lack of a paid circulation. However, it mightbe argued that student activity fees or tuition payments thatsupport the paper are the equivalent of the subscription fee chargedby other papers. Student journalists may also look to Louisianav. Fontanille, 1994 La. App. LEXIS 191 (La. Ct. App. 5th Cir.1994) to support the claim that the shield law should apply tothem. In Fontanille, the court of appeals interpreted thedefinition of a reporter broadly to include an investigative nonfictionbook author who, they held, could claim the shield law’s protections.
The Louisiana Court of Appeals has held that the law protectsonly sources. However, it also ruled that the information producedby the source need not be published to protect the source. Dumezv. Houma Municipal Fire and Police Civil Service Board, 341So.2d 1206 (La. Ct. App. 1976), cert. denied, 344 So.2d667 (1976). A later decision by a lower court seems tohave expanded that protection by including not only the identityof the source but also any information that might reveal the source’sidentity. In re Michael Burns, 484 So.2d 658 (La. 1986).The law does not specify whether the source must have promisedconfidentiality for the law to be in effect.
There are certain limitations included in the law that mustbe kept in mind. First, in defamation cases, the burden is onthe reporter to prove that the material was obtained from a sourcepromised confidentiality. Second, the party seeking disclosuremay apply to the court for an order to revoke the statutory privilege.The order will be granted upon a showing that the order is “essentialto the public interest.” In addition, in In re Grand JuryProceedings (Ridenhour), 520 So.2d 372 (La. 1988), an appealscourt made it clear that the order will be upheld whereit is shown that the subpoena was issued in good faith and notsimply to harass the journalist. Finally, the Ridenhourcase, in recognizing a reporter’s qualified First Amendment privilegein addition to the statutory protection, held that such a privilegewould not apply to criminal activity witnessed by the reporter.
Journalists should be aware that the Louisiana statute includesa fairly detailed list of procedural requirements that must beadhered to by those subpoenaing the news media. These requirementsprotect some of the interests of journalists and should be consultedimmediately upon receipt of a subpoena.
Maine (SL, CRP)
Shield Law: Me. Rev. Stat. Ann. tit. 16, § 61
The shield law prohibits a “journalist” from being compelled to testify about, produce, or disclose 1) the identity of a confidential source of any information, 2) any information that could be used to identify a confidential source, or 3) any information obtained or received in confidence by the journalist when he or she is acting in a journalistic capacity of gathering or receiving news or information for potential dissemination to the public.
A court may compel disclosure of the identity of a source or confidential information if the court has determined by a preponderance of evidence that 1) the information or source’s identity is material and relevant, 2) the information or source’s identity is material and relevant to the maintenance of a party’s claim, defense or proof of an issue material to the claim or defense, 3) the information or source’s identity cannot be obtained from any alternative source or through means “less destructive of the First Amendment,” 4) there is an overriding public interest in the disclosure and 5) based on information provided by a source other than the journalist, there are reasonable grounds to believe a crime has occurred or there is a prima facie civil cause of action.
A journalist can waive the statute’s protections if the journalist voluntarily discloses or consents to disclose the protected information.
Neither the statute nor Maine case law provides a definition of “journalist.” Student journalists are likely covered by Maine’s shield law provided they are engaged in legitimate journalistic efforts and are protecting journalistic interests by refusing to identify a confidential source or information.
Before enactment of the Maine statute in 2008, state courts had refused to recognize a state constitutional privilege. In In re Denis Letellier, 578 A.2d 722 (Me. 1990), the Maine Supreme Judicial Court adopted the Branzburg v. Hayes balancing test for a qualified privilege rooted in the First Amendment to the U.S. Constitution.
Maryland (SL)
Shield Law: Md. Cts. & Jud. Proc. Code Ann. § 9-112
The Maryland shield statute covers those “employed by the news media,” a term that is broadly defined to include any “printed, photographic, mechanical, or electronic means of disseminating news and information to the public.” Although the statute arguably might have covered student journalists because it does not require any particular level of financial compensation, Maryland legislators amended it in 2010 to expressly cover certain college journalists. The amendment extends shield law protection to any journalist “enrolled as a student in an institution of postsecondary education and engaged in any news gathering or news disseminating capacity recognized by the institution as a scholastic activity or in conjunction with an activity sponsored funded, managed or supervised by school staff or faculty.”
The amendment may leave in limbo a college journalist who is working for an independent, non-school-affiliated medium. However, those “employed” for any type of compensation should still be able to claim reporters’ privilege under the pre-2010 provisions of the law. Ironically, the amendment arguably makes it more difficult than it was previously for high school journalists. Because the legislature expressly included only students enrolled in “postsecondary” institutions, a court would probably infer an intent to exclude all other students.
Under the Maryland law, any published or unpublished information can be successfully subpoenaed if the party seeking the information can establish by clear and convincing evidence that: (1) “the news or information is relevant to a significant legal issue,” (2) it cannot be obtained by other means and (3) an overriding public interest compels disclosure. The statute’s protection does not differ in civil and criminal cases. Bilney v. Evening Star Newspaper Co., 406 A.2d 652 (1979). In addition, reporters do not waive the privilege by publishing the identities of their sources.
Whether a constitutionally based privilege exists in Maryland is an open question. In WBAL-TV Div., Hearst Corp. v. State, 477 A.2d 776, 10 Media L. Rep. 2121 (Md. 1984), a television station asked the Maryland Supreme Court to recognize a three-part balancing test for the application of a First Amendment-based privilege. The court refused to decide whether any privilege exists, because it found that — even under the TV station’s proposed three-part test — the station would lose, since the district court found a compelling need for disclosure of the station’s unaired tapes, which provided evidence available nowhere else. See also Prince George’s County v. Hartley, 822 A.2d 537, 31 Med. L. Rep. 1679 (Md. App. 2003) (refusing to determine whether a state constitutionally-based privilege exists).
Massachusetts (CRP)
Shield Law: None
Student journalists may be protected from disclosing confidentialand non-confidential sources and information in some circumstances.While Massachusetts has refused to adopt statutory protectionfor journalists or find one in their state constitution, Massachusettscourts have protected reporter’s confidential sources under aFirst Amendment balancing test. In addition, the supreme judicialcourt recognized a qualified common-law privilege to protect confidentialsources in a civil lawsuit. Sinnott v. Boston Retirement Board,524 N.E.2d 100 (Mass. 1988), cert. denied, 109 S.Ct. 528(1988). In Sinnott, the court said that a judge may weighthe public interest in the free flow of information against thelitigant’s need for the information and the availability of informationfrom other sources in deciding whether a reporter should be protectedfrom disclosure of a source or information. The court did notindicate whether the privilege would apply to student journalists,but it did hold that the interests for and against disclosurewould be balanced on a case-by-case basis.
Michigan (SL)
Shield Law: MICH. COMP. LAWS Sections 767.5a and 767A.6 (LEXISthrough all 2002 legislation)
Michigan’s shield laws are applicable only in grand jury proceedingsand in cases where a prosecutor issues a subpoena. Both statutesprotect “a reporter or other person” who gathers newsfor broadcast or publication. They also protect only confidentialsources and unpublished information. Marketos v. American EmployersIns. Co., 460 N.W.2d 272 (Mich. Ct. App. 1990). Michigan courtshave refused to recognize a constitution-based reporter’s privilege.
In a grand jury proceeding, the shield law’s privileges areovercome where the information sought concerns a “crime punishableby imprisonment for life,” when it is “essential tothe purpose of the proceeding” and when it cannot be obtainedfrom another source.
Subpoenas issued by a prosecutor can only be upheld where theinformation has already been broadcast or published or where “thereporter is the subject of the inquiry.”
No cases in Michigan have addressed how the courts would interpretthe word “reporter” in the statutes. However, in Inre Investigation of March 1999 Riots in East Lansing , 617N.W.2d 310 (Mich. 2000), the state supreme court ruled that MichiganState’s student newspaper and other, commercial media organizationsdid not have to comply with a subpoena seeking the newspaper’sphotos of a campus riot. The court ruled that a prosecutor, whowas attempting to build a case against the rioters, could notcompel the newspaper to turn over its pictures because the pictureswere not disseminated to the public and the reporters were notthe subject of the inquiry. (See story, SPLC Report, Winter2000-01). Therefore, it seems clear that the shield law’s broadlanguage does cover student journalists, if not as reporters,then at least as “other persons.”
Minnesota (SL, CRP)
Shield Law: MINN. STAT. ANN. Sections 595.021-.025 (West,WESTLAW through End of 2002 1st Sp. Sess.)
The Minnesota shield law, which was revised in 1998, explicitlyrecognizes the public’s interest in protecting the free flow ofinformation provided by the news media. The law protects thosepersons “directly engaged in the gathering, procuring, compiling,editing, or publishing of information” from revealing sourcesor unpublished information. There are no reported cases directlyinvolving students under the state’s revised shield law, but itappears student journalists should have the same protections nowafforded the commercial media.
The courts have interpreted the statute to protect even unpublishedinformation from a non-confidential source. Arial Burials,Inc. v. Minneapolis Star and Tribune Co., 8 Med. L.Rep. 1653 (Minn. Dist. Ct. 1982). The sweeping protection offeredby the law is limited by a statutory procedure for those who seekexemption from the rule. Journalists can be forced to reveal bothsources and unpublished information where the material sought:(1) is clearly relevant to a gross misdemeanor or felony or aregular misdemeanor as long as the information obtained by testifyingwould not identify the source, (2) cannot be obtained by alternativemeans and (3) is necessary to prevent injustice. In addition,the shield law will not protect journalists in any defamationaction where the person seeking disclosure can demonstrate that:(1) the identity of the source is clearly relevant to the issueof actual malice and (2) the information cannot be obtained byalternative means. The determination of these issues is made duringa court hearing with provisions for direct appeal to a highercourt. These broad exceptions leave the effectiveness of the Minnesotalaw in doubt. It is clear that journalists in this state mustexercise caution in their offers of confidentiality.
Under the previous version of the shield law, a student newspaperwas ordered to turn over photos of a raucous campus rally aftera court ruled that the law, which did not shield all unpublishedmaterial, did not protect the material. The photos were soughtas evidence in a trial involving a student accused of assaultinga police officer during the rally. For over two years, the studentnewspaper at the University of Minnesota denied the judge’s request.In January 1996, however, the court found then-editor MichelleAmes in contempt of court. While Ames was prepared to go to jailrather than turn over the photos, the court instead fined thenewspaper $250 for each day the photos were not turned over. Thenewspaper’s battle finally ended with the conclusion of the trial.(See story, SPLC Report, Spring 1996).
In addition to the uncertain protections afforded them by thelaw, Minnesota journalists must also take heed of the holdingin Cohen v. Cowels Media, 479 N.W.2d 387 (Minn.1992), where a court decided that a source can sue a reporterfor breaching a pledge of confidentiality.
The Minnesota Supreme Court has declined to recognize a state-constitution-basedreporter’s privilege in criminal cases. State v. Turner,550 N.W.2d 622, 628 (Minn. 1999). However, state courts have recognizeda First Amendment-based privilege for a reporter’s sources andmaterials in civil matters. See, e.g., Weinberger v. MaplewoodReview, 648 N.W.2d 249 (Minn. App. 2002).
Mississippi (CRP)
Shield Law: None
The state of Mississippi has recognized a reporter’s qualifiedprivilege to refuse to disclose confidential information or sourcesin civil and criminal proceedings. Hawkins v. Williams, Civ.No. 2900054 (Cir. Ct. 1st Jud. Dist. Hinds Cty., Mar. 16, 1983);Mississippi v. Hardin, Crim. No. 3858 (Cir. Ct. YalobushaCty., Mar. 23, 1983). The courts in Hawkins and Hardinbased the reporter’s privilege on the First Amendment and thestate constitution. The privilege is not applicable, however,in defamation cases. Eason v. Federal Broadcasting Co.,697 So.2d 435, 437 (Miss. 1997). While there are no reported casesinvolving student journalists, there is nothing to suggest thatcourts would distinguish between student and commercial news mediain applying the privilege.
Missouri (CRP)
Shield Law: None
The Missouri Court of Appeals has recognized a qualified privilegeagainst compelled disclosure of confidential sources and informationbased on the First Amendment. State of Missouri, ex. rel. ClassicIII, Inc. v. Ely, 954 S.W.2d 650 (Mo. Ct. App. W.D. 1997).In Classic III, the court held that the a reporter’s privilegeprotects “confidential communications made by confidentialsources” even when the information from the sources was notrelied upon for the story. The court focused on four factors whenbalancing the “needs of disclosure and confidentiality.”The court looked to: (1) whether alternative sources of informationhave been exhausted, (2) the importance of protecting confidentiality,(3) whether the information is crucial to the other party’s caseand (4) whether the plaintiff has made a prima facie case fordefamation.
While there are no reported cases involving student media,student journalists may argue that the qualified privilege appliesto them on First Amendment grounds just as it would professionalnewsgatherers.
Montana (SL)
Shield Law: MONT. CODE ANN. Sections 26-1-901 to 26-1-903(LEXIS through the 2002 Special Session)
Montana’s student journalists are protected by one of the country’sstrongest shield laws. The law, known as the “Media ConfidentialityAct,” protects those persons “connected with or employedby” a news media organization from having to disclose anyinformation – or the source of that information — in any legalproceeding, provided the material was gathered in the course ofthe person’s duties as a newsperson. In Linda Tracy v. Cityof Missoula, Missoula County Cause No. DV-00-849 (2001), adistrict court judge ruled that Linda Tracy, a University of Montanajournalism student, was covered under Montana’s shield law. Tracywas subpoenaed by prosecutors after she refused to turn over rawfootage she shot during a Hell’s Angels gathering. The footagewas used for a documentary she produced for her student internship,which aired on Missoula Community Access Television. The judgesaid that because Tracy’s work was gathered in “connectionwith” one of the protected media organizations listed inthe state statute, she was acting as a journalist under the lawand protected by the privilege. (See story, SPLC Report,Spring 2001).
Montana’s law extends to both published and unpublished material.The shield law’s protection can be waived, however, if the journalistvolunteers to testify before a judicial, administrative or legislativebody about either the information or its source. There is no reporteddecision in Montana where courts have recognized or declined torecognize a state or federal constitutional privilege.