Key: SL = State has enacted a Shield Law CRP = State courts have acknowledged a Court-Recognized Privilege, generally based on the state constitution or the federal First Amendent.
SL = State has enacted a Shield Law
CRP = State courts have acknowledged a Court-Recognized Privilege, generally based on the state constitution or the federal First Amendent.
\nShield Law: NEB. REV. STAT. Sections 20-144 to 20-147 (West,\nWESTLAW through End of 2002 Third Special Section)
Nebraska’s shield law (a.k.a. “Free Flow of Information\nAct”) recognizes that it is the policy of the state “to\ninsure the free flow of news and information to the public”\nand that newsgatherers can only perform this function in a “free\nand unfettered atmosphere.” The state has further recognized\nthat requiring a reporter to involuntarily disclose information\nor its source is contrary to this goal. Accordingly, Nebraska\nreporters are guaranteed absolute protection from compelled disclosure\nof the identity of a source of any unpublished and published (or\nbroadcast) information, as well as unpublished or non-broadcast\ninformation. Information that has been published or broadcast\nthat is unrelated to the disclosure of a source does not have\nabsolute protection from disclosure. The law does not specify\nwhether a source must have been promised confidentiality for the\nshield law’s privilege to be in effect. There is no court decision\napplying or denying a constitution-based reporter’s privilege\nin Nebraska.
While there are no cases in which the law has been used by\nstudent media, both the language and the expressed intent of the\nstatute suggest that student journalists are entitled to the full\nextent of its protection.
\nShield Law: NEV. REV. STAT. Section 49.275 (West, WESTLAW\nthrough 2001 Regular session and 17th (2001) and 18th (2002) Special\nSessions of the 71st Legislature)
It is unclear whether student journalists would be protected\nby Nevada’s comprehensive shield law. The law, called the most\nprotective in the country by one court, Laxalt v. McClatchy,\n14 Med. L. Rep. 1199 (D. Nev. 1987), provides absolute protection\nto reporters and editorial employees of both print and broadcast\nnews media from having to disclose to any governmental body any\npublished or unpublished information or its source if the material\nwas obtained in the person’s “professional capacity”\nas a newsgatherer. Unfortunately, the phrase “professional\ncapacity” has never been defined by the Nevada legislature\nor courts and there are no cases in which the law has been interpreted\nwith student journalists in mind.
Even though the language might initially seem to preclude most\nstudent journalists, it is conceivable that some students – particularly\nthose compensated in some way for their work (e.g. tuition reimbursement,\nscholarship funding, etc.) – might be covered by the law.
\nNevada courts have not recognized a qualified reporter’s privilege.
New Hampshire (CRP)
\nShield Law: None
It seems clear that state courts would extend a state-constitution-based\nqualified privilege against disclosure to student reporters. In\nNew Hampshire v. Siel, 444 A.2d 499 (N.H. 1982), the court\napproved a lower court ruling that two reporters for a college\nnewspaper could assert a qualified privilege against disclosing\nthe identity of confidential sources in a criminal proceeding.\nThe defendant, who was convicted of the murder, tried to force\nthe reporters to disclose their sources of information. The supreme\ncourt said the reporters were protected from disclosure because\nthe defendant did not show that the confidential information,\nif released, would affect the guilty verdict.
The supreme court in Siel approved the lower court’s\nruling without explicitly noting that the reporters worked for\na student newspaper. The court based its decision on the state\nconstitution’s guarantee of freedom of the press.
A qualified privilege also has been recognized in civil cases.\nOpinion of the Justices, 373 A.2d 644 (N.H. 1977). The\ncourt declined to define who qualifies as press under the state\nconstitution. But the decision in Siel indicates that student\nreporters, particularly at the college level, would be protected\nfrom forced disclosure unless a litigant can overcome the privilege.\n
New Jersey (SL)
\nShield Law: N.J. STAT. ANN. Sections 2A:84A-21 to 2A:84A-21.9,\n2A:84A-29 (West, WESTLAW through L.2003, c.1 to 31).
Although the state courts have not ruled on whether the state’s\ncurrent shield law applies to student reporters, there are several\nreasons to believe that students would be protected from compelled\ndisclosure.
The shield law protects “[A] person engaged on, engaged in,\nconnected with, or employed by news media for the purpose of gathering,\nprocuring, transmitting, compiling, editing or disseminating news\nfor the general public . . .” Student reporters clearly are\nengaged in, connected with and possibly even employed by the news\nmedia. However, student reporters may have a harder time showing\nthat the general public is their audience. Students may try to\nprove that the general public is their audience by showing that:\n(1) their publications are read by persons other than students,\n(2) their publications address issues of general interest in the\ncommunity or (3) their publications comply with the shield law\nrequirements in all other respects. Student journalists have another\nhurdle in that newspapers, under the act, must also be distributed\n”ordinarily not less frequently than once a week.” Student\nnewspapers published less often than once a week would have a\nharder time falling within the protection of the statute.
Under an old version of the state’s shield law, the principal\nand newspaper adviser at Millville High School in New Jersey were\nsubpoenaed when the school paper, the Tattler, in its March\n1981 issue, published an interview with an unnamed drug dealer.\nThe newspaper adviser was the only person who knew the name of\nthe student interviewer and only the student reporter knew the\nidentity of the source, identified only as the “Candy Man.”\nThe adviser refused to reveal the student reporter’s name to the\ncounty prosecutor and before the grand jury. The court rejected\nthe adviser’s claim that he was protected by a First Amendment-based\nprivilege or the shield law because the student paper did not\nhave a paid circulation or a second class mailing permit. The\nprosecutor, however, dropped the subpoenas before the adviser\nwas forced to testify. (See story, SPLC Report, Fall 1981).\nBecause the case involved a now repealed version of the shield\nlaw, it has no ongoing legal significance to New Jersey student\njournalists.
In applying the shield law, a New Jersey superior court liberally\nconstrued the requirements for what constitutes a “news medium”\nunder the statute. In re Avile, 501 A.2d 1018 (N.J. Super.\nCt. App. Div. 1985). The court said a 20-page tabloid paper\nfell under the statutory language extending the privilege to reporters\nat a publication similar to a newspaper. The court ruled that\nthe tabloid, which was distributed free, did not meet the statutory\nrequirements of a “newspaper” because it did not have\na paid circulation. But the court extended the privilege to the\ntabloid, saying that the courts should look at the intention behind\nthe statutory requirements rather than merely the form. The decision\nsuggests that even if a student publication does not strictly\ncomply with the shield law’s requirements (for example, it publishes\nbi-weekly rather than weekly), a court may extend the privilege\nto students connected with the publication.
Several other decisions have recognized that the legislature\nhas tried to establish the strongest possible protection for reporters\nand the news media. For example, in In re Schuman, 552\nA.2d 602 (N.J. 1989), the state supreme court held that the shield\nlaw protects journalists from being compelled to testify for the\nprosecution in a criminal case, even if the information or news\nhas already been disseminated, unless the defendant is able to\nshow that the information is relevant, material, necessary to\nthe defense and cannot be obtained from other means. Also, the\nshield law protects reporters who are defendants in libel cases.\nMaressa v. New Jersey Monthly, 445 A.2d 376 (N.J. 1982),\ncert. denied, 459 U.S. 907 (1982). The shield law\nalso protects sources and unpublished information. Publication\ncan waive the protection but only for the actual published information.
While New Jersey state courts have never found a state or federal\nconstitutional reporter’s privilege, a federal district court in New Jersey did recognize a First Amendment-based privilege in a case involving a college student newspaper reporter. In February 1995, reporter\nLisa Zerbo wrote an article in the State University of New Jersey,\nCamden Campus’ student newspaper, The Gleaner, about a\nprofessor, which was subpoenaed by two other professors suing\nthe professor on allegations of racial discrimination. Her notes\nand all other documents connected with the interview were subpoenaed.\nThe court said the interview conducted with the student reporter\ndid not reveal issues relevant to the heart of the claim, and\nthe court believed that there were alternative sources for the\nsame information. The subpoena was quashed. Behrens v. Rutgers\nUniversity, Civ. No. 94-358 (D.N.J. Aug. 3, 1995). (See story,\nSPLC Report, Winter 1995-96).
New Mexico (SL)
\nShield Law: N.M. Sup. Ct. R. 11-514 (LEXIS through Jan. 23, 2003)
The state supreme court has adopted an evidentiary rule that\nprotects reporters from being forced to disclose confidential\nsources or information in most circumstances. No state court has\ndecided whether student journalists may assert the rule’s qualified\nprivilege. However, student reporters could make a strong argument\nthat the rule protects them because of its broad language.
The evidentiary rule extends a testimonial privilege to “a\nperson engaged or employed by news media for the purpose of gathering,\nprocuring, transmitting, compiling, editing or disseminating news\nfor the general public.” A student reporter could show that\nhe or she is “engaged” or “employed by” the\nnews media. However, to prove the latter, the student would probably\nneed to offer evidence that he or she received some compensation\nsuch as a wage or tuition reimbursement. Given the rule’s apparently\nstraightforward requirements, reporters for student newspapers\nshould have a good chance of qualifying for the privilege.
All reporters should be aware that the evidentiary privilege\nmay be overcome if a party shows by a preponderance of the evidence\nthat there is a reasonable opportunity that the confidential source\nor information are material and relevant to the case, no alternative\nmeans of discovering the information or sources exists, the information\nor source is crucial to the case and the need for the information\nor source “clearly outweighs” the public’s interest\nin protecting the source or information.
The state supreme court has declined to recognize a common-law\nor constitutional privilege for reporters to refuse to disclose\nconfidential information or sources. American v. Hubbard Broadcasting\nInc., 572 P.2d 1258 (N.M. Ct. App. 1977), cert. denied,\n572 P.2d 1257 (N.M. 1977), cert. denied, 436 U.S. 906 (1978).
New York (SL, CRP)
\nShield Law: N.Y. CIV. RIGHTS LAW Section 79-h (West, WESTLAW\nthrough L.2003, chs. 4 to 19 and 52)
New York is one of the few states in which a court has explicitly extended\nthe reporter’s privilege to student journalists. In Persky\nv. Yeshiva University, 2002 WL 31769704 (S.D.N.Y. Dec. 10,\n2002), a federal district court held that a student reporter could\navail himself of the First Amendment-based reporter’s privilege.\nThe student journalist wrote a piece about possible religious\ndiscrimination against a Yeshiva employee. He attributed his information\nto “a number of university employees.” After he was\nsubpoenaed to reveal his sources and refused to provide the information,\nthe court said that as a student journalist he was not precluded\nfrom “the class of persons entitled to the privilege.”\nId. at 2. “The burden indeed may be sustained by one\nwho is a novice in the field,” the court noted. Id.\n(quoting von Bulow by Auersperg v. von Bulow, 811 F.2d\n136, 144 (2d Cir. 1987)). (See story, SPLC Report, Spring\n2003).
A similar result occurred in a 1993 case involving a student\nreporter working on the law school newspaper at SUNY-Buffalo.\nBlum v. Schlegel, 150 F.R.D. 42 (W.D.N.Y. 1993). In recognizing\na First Amendment-based qualified privilege that protected the\nstudent reporter from having to turn over a tape recorded interview,\nthe court concluded that the proper inquiry to determine whom\na qualified privilege protects is not whether the person is a\njournalist by profession, but rather “how the person asserting\nthe privilege intended to use the information gathered.”\nId. at 45. If the information was collected for the purpose\nof dissemination, the court said, the privilege should be available.\n(See story, SPLC Report, Winter 1993-94).
As is typically the case, the qualified privilege can\nbe overcome by a showing that the information is highly material\nand relevant, critical or necessary to the party’s claim and not\nobtainable from an alternative source. Significantly, both courts\nrecognized that if the New York shield law – instead of the federal-law-based\nqualified privilege – governed the case, the students would probably\nnot have been entitled to claim it.
Under the New York shield law only professional reporters are\ncovered. Professional reporters are those persons who make their\n”gain or livelihood” working for a professional news\nmedium. The statute further limits the protection to newspapers\nthat are distributed at least once a week, have a “paid circulation”\nand a second-class postage permit. A New York court, relying on\nthe language in the state shield law, held that it did not apply\nto student reporters working for the Hofstra University student\nnewspaper. New York v. Hennessey, 13 Med. L. Rep. 1109\n(N.Y. Dist. Ct. 1986). (See story, SPLC Report, Fall 1986).\n
New York student journalists receiving a subpoena should first\ndetermine if the information sought in the subpoena concerns a\nfederal issue and can therefore be heard in a federal court. If\nso, they should be able to claim protection under the federal-law-based\nqualified privilege. If the information sought in the subpoena\nconcerns only a state issue, most student reporters will probably\nnot be covered by the state shield law, for the reasons discussed\nabove. In such cases, state courts may still find that student\njournalists are entitled to some protection. New York courts have\nrecognized that both the state constitution’s free press provision\nand the First Amendment provide at least a qualified privilege\nagainst compelled disclosure of both confidential and non-confidential\nmaterial by journalists. O’Neill v. Oakgrove Const., Inc.,\n71 N.Y.2d 524, 527-28 (1988). The same court also noted that the\nNew York Constitution may even provide more protection than that\navailable under the First Amendment. Id. at 529, n. 3.\nTo date, New York state courts have not had the opportunity to\ndirectly address the issue of the applicability of a federal or\nstate constitution-based qualified privilege to student media.
North Carolina (SL, CRP)
\nShield Law: N.C. GEN. STAT. Section 8-53.11(b) (West, WESTLAW\nthrough S.L. 2003-2 of the 2003 Reg. Sess.)
North Carolina enacted its shield law after a North Carolina\nappellate court refused to recognize a reporter’s privilege for\nnon-confidential information in a criminal case. In re Owens,\n128 N.C. App. 577 (1998), aff’d 350 N.C. 656 (1999). The\nshield law extended the reporter’s privilege to protection of\n”any confidential or non-confidential information” in\nany criminal or civil case. Journalists protected by the law are\n”engaged in the business of gathering, compiling, writing,\nediting, photographing, recording, or processing information for\ndissemination via any news medium.” A news medium is “regularly\nengaged in the business of publication or distribution of news.”\nWhile the courts have not had the opportunity to decide if the\nshield law’s privilege extends to student journalists its broad\nlanguage would suggest that it does. The statute has no employment\nrequirements. However, the student media would have to show that\nthey are “regularly engaged” in disseminating information.\nNorth Carolina student journalists do not have to show that this\ninformation is disseminated to any particular group of people,\nwhich should help student media claim the privilege’s protections.
The shield law is a qualified one. If someone seeks to force\ndisclosure from a reporter he or she must establish that the information\nsought is: (1) relevant and material, (2) cannot be obtained elsewhere\nand (3) is essential to the maintenance of the claim.
Before the shield law was enacted in 1999 North Carolina trial\ncourts consistently recognized a First Amendment-based reporter’s\nprivilege.
North Dakota (SL)
\nShield Law: N.D. CENT. CODE Section 31-01-06.2 (West, WESTLAW\nthrough 2001 Regular Session)
The North Dakota shield law protects persons “engaged\nin news gathering, writing, photographing, or editing news”\nas long as that person is “employed by or acting for any\norganization engaged in publishing or broadcasting news.”\nThe broad language of the shield law appears to protect student\njournalists, especially student journalists who receive pay for\ntheir work. However, while the statute refers to journalists employed\nby the news media it also covers those who are “acting for”\na news organization. This should include student journalists who\nare unpaid or who only receive credit for their work.
The statute specifically protects both sources and information.\nHowever, it does not distinguish between confidential and non-confidential\nsources and information. The privilege can be overcome if the\ncourts find that a miscarriage of justice would result from nondisclosure.\nIn considering whether a miscarriage of justice would occur the\ncourts look to whether the information is available from another\nsource, if the source is confidential, if the information has\nbeen published, the chilling effect the disclosure would have\non First Amendment rights and the relevance of the information.\nWhile the statute does not address the issue of publication, the\nNorth Dakota Supreme Court in Grand Folks Herald v. District\nCourt, 322 N.W.2d 850 (N.D. 1982) expressed doubt that turning\nover a published photograph would have a chilling effect on the\nFirst Amendment. In sum, student journalists would have a better\nchance of relying on the state shield law if they can show that\nthe information is confidential and unpublished.
The North Dakota Supreme Court has neither accepted nor rejected\na reporter’s privilege based on the First Amendment to the U.S.\nConstitution or the state constitution.
Ohio (SL, CRP)
\nShield Law: OHIO REV. CODE ANN. Sections 2739.04 and 2739.12\n(West, WESTLAW through 2/15/03, including File 250 of the 124th\nGA (2001-2002), apv. 1/10/03)
Student journalists in Ohio would probably be protected by\nthe state shield law. The law provides that “[n]o person\nengaged in the work of, or connected with, or employed by any\nnewspaper . . . for the purpose of gathering, procuring, compiling,\nediting, disseminating, or publishing news” is required to\ndisclose the identity of a confidential source. A separate shield\nlaw applies to television and radio broadcasters. In fact, the\nbroadcast law appears to broaden the coverage for reporters. It\nspecifically covers noncommercial educational as well as commercial\nradio and television stations.
The privilege, while protecting a broad group of people, only\ncovers confidential sources. However, confidential sources receive\nsubstantial protection. In re Grand Jury Proceedings, 749\nN.E.2d 325 (Ohio Ct. App. 1999). The privilege may be overcome\nif a criminal defendant can prove that: (1) the newsperson has\ninformation relevant to his guilt or innocence, (2) all alternative\nmeans of obtaining the information have been exhausted and (3)\nthe defendant made an effort to examine the newsperson concerning\nhis non-confidential information and requested an in person\ninspection by the court of the information. In re McAuley,\n408 N.E.2d 697 (Ct. App. Cuyahoga County 1979).
In addition to the shield law, some Ohio courts have recognized\na qualified reporter’s privilege under the First Amendment and\nhave suggested that such a privilege might also exist under Ohio’s\nstate constitution. See, e.g., Fawley v. Quirk, 11 Med.\nL. Rep. 2336 (Ohio Ct. App. 1985).
Oklahoma (SL, CRP)
\nShield Law: OKLA. STAT. tit. 12, section 2506 (West, WESTLAW\nthrough end of 2002 Regular Session).
Oklahoma’s law is broad enough that it should be applicable\nto student journalists. The law protects any “reporter,\nphotographer, editor, commentator, journalist, correspondent,\nannouncer, or other individual regularly engaged in obtaining,\nwriting, reviewing, editing, or otherwise preparing news.”\nWhile the statute says that employment in the news media is an\nexample of being “regularly engaged,” it does not say\nthat employment is a condition to using the privilege.
Once the privilege applies, a reporter is protected from disclosing\nthe sources of published and unpublished information as well as\nthe unpublished information itself. The source’s identity need\nnot be confidential to be protected. While the protection for\nsources does not appear to be qualified, the privilege for unpublished\ninformation can be overcome if there is clear and convincing evidence\nthat the information sought is relevant and cannot be obtained\nby alternative means.
In addition to the shield law, the Oklahoma Supreme Court recognized\na qualified First Amendment privilege in Taylor v. Miskovsky,\n640 P.2d 959 (Okla. 1981).
\nShield Law: OR. REV. STAT. Section 44.510-44.540 (West, WESTLAW\nthrough 2/15/03, including file 250 of the 124th GA (2001-2002)\napv. 1/10/03).
The Oregon shield law provides extensive protection for all\nmembers of the news and information media. While the courts have\nnever applied the law to a case involving student journalists,\nthe broad language of the statute and its liberal interpretation\nin other cases makes it highly probable that students are entitled\nto its full protection. The statute provides absolute protection\nfrom compelled disclosure of both sources and all information\nobtained by journalists in the course of their work. It is not\nclear whether the journalist must have promised confidentiality\nfor the source of information to be covered by the law. The only\nexceptions to the Oregon statute exist where: (1) there is probable\ncause to believe that the journalist has or is about to commit\na crime or (2) where the defendant in a defamation suit has asserted\na defense based on the content or source of the information.
In a case handed down prior to the enactment of both the state\nshield law and the U.S. Supreme Court’s ruling decision in Branzburg\nv. Hayes, 408 U.S. 665 (1972), the Oregon Supreme Court ruled\nin 1968 that Annette Buchanan, a writer for a college newspaper,\nhad to reveal the names of confidential sources before a grand\njury. State v. Buchanan, 436 P.2d 729 (Ore. 1968). Buchanan\nhad interviewed seven persons who claimed to be marijuana users\non the condition that she not disclose their identities. After\nreading Buchanan’s story, local law enforcement officials convened\na grand jury investigation into the illegal use of drugs and issued\na subpoena to Buchanan. The court dismissed Buchanan’s claim that\nthe Oregon Constitution protected her and the U.S. Supreme Court\nrefused to hear an appeal.
Because of the state’s subsequent enactment of the Oregon shield\nlaw, the student media should not be affected by Buchanan’s\nimpact.
Pennsylvania (SL, CRP)
\nShield Law: 42 PA. CONS. STAT. ANN. Section 5942(a) (West,\nWESTLAW through Act 2002-237 (End))
Pennsylvania’s shield law applies to anyone “engaged on,\nconnected with, or employed by any newspaper of general circulation\nor any press association or any radio or television station, or\nany magazine of general circulation, for the purposes of gathering,\nprocuring, compiling, editing or publishing news.” The law\ndoes not define the terms “engaged on, connected with, or\nemployed by” or “general circulation” or what it\nmeans to gather, procure, compile, edit or publish news. To date,\nthere are no reported cases involving student journalists. However,\nthe broad language would suggest that student journalists should\nbe covered. The only hurdle students journalists who wish to assert\nthe statutory privilege might face is that, under the statute,\nnewspapers must have a general circulation and broadcast stations\nmust maintain copies of their broadcasts or transcripts of their\nprograms for at least one year. Newspapers that have at least\nsome community-wide distribution or produce an online edition\nmay be in a better position to claim the privilege than those\nthat distribute copies only in the school or on campus. Where\nit applies, the shield law’s protection is absolute in civil cases\nthat do not involve actions of defamation. The statute protects\nconfidential sources and information leading to the identity of\na source. Commonwealth v. Tyson., 800 A.2d 327 (Pa. Super.\nCt. 2002). The shield law is qualified, however, in criminal cases\nand in defamation actions.
In addition to the shield law, Pennsylvania courts have also\nrecognized a qualified privilege under the First Amendment. The\nFirst Amendment reporter’s privilege may be even more inclusive\nthan the shield law. It has been extended to members of the “news\nmedia,” including “reporters.” Davis v. Glanton,\n705 A.2d 879, 885 (Pa. Super. 1997). Again, there are no Pennsylvania\ncases that discuss the definitions of “news media” or\n”reporter” for the purposes of the privilege. However,\none Pennsylvania trial court, without discussion, applied the\nFirst Amendment privilege to an Internet Web site that published\nan anonymous posting of political commentary. Melvin v. Doe,\n49 Pa. D. & C.4th 449, 477 (CP Allegheny 2000).
The First Amendment privilege covers confidential as well as\nnon-confidential sources and unpublished information. There is\ndisagreement among the Pennsylvania courts about whether it extends\nto protect published information. McMenamin v. Tartaglione,\n590 A.2d 802, 811 (Pa. Commw. 1991), aff’d without op.,\n590 A.2d 753 (Pa. 1991) (applying privilege to published statements);\nBut see Pennsylvania v. Banner, 17 Med. L. Rep. 1434 (Pa.\nCt. C.P. Lehigh Cty. Nov. 13, 1989). Publication will waive the\nstatutory privilege. In re Taylor, 193 A.2d 346, 350-51\n(Pa. 1987); Davis v. Glanton, 705 A.2d 879 (Pa. Super.\nCt. 1997). The First Amendment privilege can be overcome if the\ninformation sought in the subpoena is crucial to the claim, all\nalternative sources of information have been exhausted and the\nreporter is the only source of the information.