SL = State has enacted a Shield Law
CRP = State has a Court-Recognized Privilege, generally based on the state constitution or federal First Amendent.
Rhode Island (SL)
Shield Law: R. I. GEN. LAWS Section 9-19.1-1 et seq.(West, WESTLAW through the Jan. 2002 Session)
The Rhode Island “Newsman’s Privilege Act” appliesto a “reporter, editor, commentator, journalist, writer,correspondent, news photographer, or other person directly engagedin the gathering or presentation of news.” The law only appliesto confidential information or confidential sources. In OutletCommunications, Inc. v. State, 588 A.2d 1050, 1052 (R.I. 1991),the court found that an interview conducted on a public sidewalkwas “anything but secret or confidential.” The courtdefined confidential information as information “given eitherin secret or in confidence to the news entity that claims theprivilege.” Id.
While it appears that the law would apply to student journalists,there are some limitations in the statute that may be problematic.The privilege only applies to “accredited” publications,but the law does not define what constitutes an “accredited”newspaper or news medium. Those student organizations that maintainmembership in a national, state or local press association orstudent media group (e.g. New England Scholastic Press Association,Yankee Press Education Network, Columbia Scholastic Press Association,Journalism Education Association or Associated Collegiate Press)may have an edge. In addition, the statute defines a newspaperas “one that is issued at regular intervals and has a paidcirculation.” While some student newspapers do not chargestudents for the paper, those whose schools charge a student activityfee that supports student media, that charge for multiple copiesor that send papers to subscribers through the mail may be ableto claim that they have a paid circulation.
The privilege can be divested if the court finds that “disclosureof the information or source of information is necessary to permita criminal prosecution for the commission of a specific felony,or to prevent a threat to human life, and that the informationor the source of the information is not available from other prospectivewitnesses.” In addition, the privilege does not apply ifthe information has already been published or in a defamationcase where the reporter asserts a defense based on the sourceof information.
There is no federal or state constitution-based reporter’sprivilege in Rhode Island.
South Carolina (SL, CRP)
Shield Law: S.C. CODE ANN. Section 19-11-100 (West, WESTLAWthrough End of 2002 Reg. Sess.)
The South Carolina shield law is only applicable where a partyto a case is “seeking to compel production [of information]or testimony” from a reporter. The South Carolina SupremeCourt in Decker v. Smith, 471 S.E.2d 462 (S.C. 1995), foundthe reporter’s privilege inapplicable because the court, whichwas not a party, was seeking the reporter’s testimony. The SouthCarolina shield law is qualified and can be overcome if the reporterwaives the privilege or “the testimony or production sought”is: (1) material and relevant, (2) unavailable by alternativemeans and (3) necessary to the case. The shield law applies toboth published and unpublished information. It also makes no distinctionbetween confidential and non-confidential information.
Student journalists should be able to avail themselves of theprivilege. It applies to “a person” who is or was engagedin gathering and disseminating news for the public. While thecourts have not considered if students are included in this language,they seem to stick to a literal interpretation of the statute. As long as the student reporter is gathering news for publicdissemination, the shield law should apply.
In addition to the shield law, the Supreme Court of South Carolinahas recognized a First Amendment-based “qualified privilegein limited situations, such as when the grand jury actsin bad faith or the press is being subjected to official harassment.”Matter of Decker, 471 S.E.2d 462, 465 n.4 (S.C. 1995)(emphasisin original).
South Dakota (CRP)
Shield Law: None
South Dakota student journalists are advised to think twicebefore promising a source confidentiality. There is no shieldlaw in South Dakota and only one case recognizing a reporter’sprivilege to withhold confidential information. The South DakotaSupreme Court in Hopewell v. Midcontinent Broadcasting Corporation,538 N.W.2d 780 (S.D. 1995), held that reporters have a qualifiedprivilege to protect only confidential sources. The court useda five-part-test to determine when compelled disclosure is appropriate.The application of the privilege is subject to: (1) the natureof the litigation, (2) the relevance of the information to thelawsuit, (3) whether the party seeking disclosure exhausted alternativesources, (4) the importance of confidentiality and (5) whetherthe statement is false. The court’s ruling only applies to civilcases.
Shield Law: TENN. CODE ANN. Section 24-1-208 (West, WESTLAWthrough End of 2002 Second Reg. Sess.).
The Tennessee shield law protects those either “connectedwith” the news media or those independently engaged in gatheringinformation for publication or broadcast. Though there are noreported cases in which the law has been invoked by student journalists,the broad statutory language makes it likely that students wouldbe entitled to its full protection.
The law protects both sources and information from compelleddisclosure before almost all Tennessee government bodies. Further,the Tennessee Supreme Court has ruled that the shield law protectsagainst disclosure in either civil or criminal litigation andthat it protects both confidential and non-confidential sources.Austin v. Memphis Publishing Co., 655 S.W.2d 146 (Tenn.1983).
While the shield law offers Tennessee journalists substantialprotection, there are two very important limitations includedin the law. First, the law’s protections do not extend to defamationsuits where the defendant “asserts a defense based on thesource of information.” Second, any person seeking disclosurefrom a reporter protected by the law may apply to the court ofappeals for an order divesting such protection. The order willbe granted only where the party seeking disclosure clearly andconvincingly demonstrates that: (1) there is probable cause tobelieve that the reporter (or other person protected by the law)has information that is clearly relevant to a specific probableviolation of the law, (2) the information sought cannot be reasonablyobtained by alternative means and (3) there is a compelling andoverriding public interest of the people of Tennessee in obtainingthe information. See Tennessee v. Curriden, 14 Med.L. Rep. 1797 (Tenn. 1987) (An example of the Tennessee SupremeCourt’s literal interpretation of the “clear and convincing”requirement in which an application for divestment was denied.)If the order is granted, a reporter may take a direct appeal tothe Tennessee Supreme Court.
To date, there is no court-recognized reporter’s privilege inTennessee.
Texas (SL, CRP)
Shield Law: Tex. Civ. Prac. & Rem., Code Ann. § 22.021; Tex Code Crim. Ann. § 38.11
The Texas legislature passed, and the governor signed, the Texas Free Flow of Information Act in 2009. The Act narrowly limits the definition of journalists to paid professionals, and will be of limited use to students.
The Act defines a journalist as “for a substantial portion of the person’s livelihood or for substantial financial gain,” is involved with gathering or distributing news for a news medium or communication service provider. The requirement of “substantial” compensation suggests that a person receiving a minimal “stringer” paycheck, or academic credit, would not qualify for protection of the shield. The Act also protects anyone who is a “journalist, scholar, or researcher employed by an institution of higher education,” which opens the door for a college journalist receiving any pay from the college (even if not “substantial”) to argue for privilege. In the brief history of the statute, the scope of its coverage has not been tested in court.
For those who can take advantage of the privilege, it covers both confidential and non-confidential information gathered by journalists, as well as any information disclosing the identity of a confidential source. A court can overcome the privilege and force a journalist to testify or to produce documents if it is established that: “all reasonable efforts” to obtain the information elsewhere were attempted; the information is both relevant and “essential” to a party’s claim or defense; the journalist was given timely notice and opportunity to object; the subpoena is not overly broad or brought for purposes of harassment; and that the party seeking disclosure has an interest outweighing the public’s interest in confidentiality. The law goes on to say that, “when appropriate,” the scope of the journalist’s testimony should be limited simply to verifying the accuracy of already-published material.
Before enactment of the statute, state courts recognized a qualified privilege protecting a reporter’s confidential sources and information under both the First Amendment and the Texas state constitution (Art. I, Sec. 8). Channel Two Television v. Dickerson, 725 S.W.2d 470 (Tex. App. 1987). Channel Two Television held that a privilege cannot be overcome absent a “clear and specific showing” that the material is: (1) highly material and relevant, (2) necessary or critical to the maintenance of the claim and (3) not obtainable from other alternative sources. The person seeking disclosure has the burden of showing that each item he seeks meets the three-part test. In later cases, Texas courts held that, where the source’s identity is not confidential or has been discovered by the party seeking the reporter’s testimony, the privilege is considered waived. Dolcefino v. Ray, 902 S.W.2d 163 (Tex. App. Houston [1st Dist.] 1995); In re Union Pacific Railroad Co., 6 S.W.3d 310 (Ct. of App. 1999).
Another court decision indicates that a criminal defendant may not have to meet this burden, at least where the newsperson was a witness to the crime. Ex Parte Grothe, 687 S.W.2d 736 (Tex. Ct. Crim. App. 1984), cert. denied, 474 U.S. 944 (1985). Also, it is not clear whether such a privilege would be extended to include appearances before a jury.
Regrettably, Texas courts have not directly addressed the issue of who is covered under the qualified privilege. The U.S. Court of Appeals for the Fifth Circuit, which covers Texas, has suggested that any person who intends to distribute information to the public through activities commonly associated with the dissemination of news would be considered a journalist. In re Grand Jury Subpoenas, No. 01-20745 (5th Cir. Aug. 17, 2001). Unfortunately, the Fifth Circuit has otherwise not been very receptive to the idea of a First Amendment-based qualified privilege and has so far only recognized it in very limited cases. See, e.g., Miller v. Transamerican Press, Inc., 621 F.2d 721, 726, as modified, 628 F.2d 932, 932 (5th Cir. 1980)(privilege available to protect a confidential source in a civil case). Moreover, in a case that received national attention, freelance writer Vanessa Leggett served 168 days in jail – the longest period of incarceration of a journalist in U.S history – following the Fifth Circuit’s refusal to reverse a lower court’s contempt order for her refusal to produce notes and tapes of interviews before a federal grand jury regarding a much-publicized Houston murder.
There are no reporter’s privilege cases involving student journalists, but there is nothing to suggest that courts would distinguish between student and commercial news media in applying the privilege.
In an interesting – and somewhat related – case, the Texas Attorney General’s office ruled in 2001 that the state’s open records law did not apply to a University of Texas at Tyler reporter’s editorial notes and recordings. Tex. Atty. Gen. OR2001-2594 (June 19, 2001). In that case, the student government president attempted to obtain the notes of the editor who wrote a story about alleged misconduct by student government officials by filing a state Public Information Act request. In what is believed to be the first formal ruling on such a request, the Attorney General said that the newspaper was not considered a “governmental body” for purposes of the law, even though it was funded in part by student activities fees. (See story, SPLC Report, Fall 2001).
Utah (SL, CRP)
Shield Law: Utah R. Evid. Rule 509
Rule 509 of Utah’s Rules of Evidence protects “news reporters” from being forced to disclose confidential source information unless the person who seeks the information shows by clear and convincing evidence that disclosure is “necessary to prevent substantial injury or death.” Rule 509 protects the reporters from disclosing confidential unpublished news information “unless the person seeking such information demonstrates a need for that information which substantially outweighs the interest of a continued free flow of information to news reporters.” The rule also protects reporters from disclosure of non-confidential unpublished news information if the reporter “demonstrates that the interest of a continued free flow of information to news reporters outweighs the need for disclosure.”
Rule 509 defines a “news reporter” as a “publisher, editor, reporter or other similar person gathering information for the primary purpose of disseminating news to the public and any newspaper, magazine, or other periodical publication, press association or wire service, radio station, television station, satellite broadcast, cable system or other organization with whom that person is connected.” The reporter or the reporter’s organization can claim the privilege provided by Rule 509.
There is no case law in Utah that extends Rule 509’s protections to student journalists, but the rule’s language suggests student journalists could claim its protections as long as they were acting as journalists when they gathered the information in question and did so for the purpose of disseminating it as news.
Before enactment of the rule, some Utah trial courts recognized a qualified privilege in cases concerning non-confidential information. One lower court suggested that the privilege may be absolute in cases involving unpublished and confidential information. State v. Halvorson, No. 001500343 (Utah 5th Dist. Ct. Oct. 13, 2000). None of these trial-court cases involved student journalists.
Shield Law: None
The Vermont Supreme Court recognized a qualified privilegefor reporters under the First Amendment. State v. St. Peter,132 Vt. 266 (1974). This privilege applies in civil as well ascriminal cases. However, in a criminal matter the party seekingdisclosure can overcome the privilege if: (1) there is no alternativesource for the information and (2) the information is relevantand material to the issue of the defendant’s guilt or innocence.The court said the privilege did not extend to testimony beforegrand juries. A district court in Vermont recently extended theprivilege to non-confidential sources and published as well asunpublished material. State v. Peters, Docket No. 97-01-01WnCr (Vt. Dist. Ct. July 3, 2001).
The Vermont privilege has never been extended to student journalists,but nothing indicates that Vermont courts would not do so.
Shield Law: None
Student journalists may be able to rely on the reporter’s privilegein Virginia because it is based on the First Amendment. The privilegeonly clearly protects the identity of confidential sources orconfidential information. Brown v. Commonwealth of Virginia,204 S.E.2d 429 (Va. 1974), cert. denied, Brown v.Virginia, 419 U.S. 966 (1974). Non-confidentiality,however, does not preclude application of the privilege. It isonly one factor in the court’s balancing test. Clemente v.Clemente, 56 Va. Cir. 530 (Arlington 2001). The otherthree factors of the test balance: (1) the relevance of the information,(2) whether the information can be obtained from alternative meansand (3) whether there is a compelling need in the information.Id. While there are no reported cases involving studentjournalists, there is nothing to suggest that courts would distinguishbetween students and commercial media in applying the privilege.
Washington (SL, CRP)
Shield Law: Wash. Rev. Code § 5.68.010
The shield law protects the “news media” from being compelled to testify or produce either the identity of a source that has a reasonable expectation of confidentiality or “any news or information obtained or prepared by the news media in its capacity in gathering, receiving, or processing news or information for potential communication to the public.” Publication or dissemination of this news or information is not considered a waiver of the protections of the shield law.
The shield law defines “news media” as “any entity that is in the regular business of news gathering and disseminating news or information to the public by any means, including, but not limited to, print, broadcast, photographic, mechanical, internet, or electronic distribution,” as well as any employee, agent, or independent contractor of such an entity who was “engaged in bona fide news gathering for such entity, and who obtained or prepared the news of information that is sought while serving in that capacity.”
Journalists may be compelled to disclose news or information noted in the above paragraph, but not the identity of a confidential source, if a party seeking the news or information has established by clear and convincing evidence that 1) the news or information sought is “highly material and relevant,” 2) the news or information is critical or necessary to the maintenance of a party’s claim, defense, or proof of an issue in a lawsuit, 3) the party seeking the news or information has “exhausted all reasonable and available means to obtain it from alternative sources,” 4) there is a compelling public interest in the disclosure, and 5) there are reasonable grounds to believe a crime has occurred or there is a civil cause of action.
There is no case law applying the statute to student journalists. Student publications are should be covered by the statute because it is likely they would be considered in the “regular business of news gathering and disseminating news or information to the public.” Individual student journalists should also be covered by the statute which extends its protections to not only “employee[s],” which indicates a more formal employment relationship than that which exists for many student media, but also more broadly to “agent[s]” or “independent contractor[s]” of the newsgathering entity
Before the statute was enacted, the Washington State Supreme Court had recognized a common-law-based qualified reporter’s privilege very favorable to the news media. Senear v. Daily Journal American, 97 Wash.2d 148 (1982). To overcome the privilege, Senear held that a party must show: (1) that the confidential information is necessary for proving a claim or defense, (2) that reasonable efforts have been made to obtain the material through alternative sources and (3) that the claim sued upon is not frivolous. The state supreme court extended the privilege to include criminal trials in State v. Rinaldo, 102 Wash. 2d 749 (1984). More recently the Washington Court of Appeals issued an unpublished decision that recognized, without discussion, that a reporter had a First Amendment privilege to refuse to disclose interview notes. In the Matter of the Request of Plaintiff Alfredo Azule et al., 29 Med. L. Rep. 1414 (Wash. App. 2001).
No appellate cases directly address application of the common-law privilege to student reporters. But a superior court judge in November 1999 ordered Western Washington University’s student newspaper, The Western Front, to turn over a videotape of a break-in they received from a local news station. According to the newspaper’s editor, the judge ruled that newspaper had not established a confidential relationship with the source, leaving the tape unprotected by any privilege. The newspaper at first refused to hand over the video. However, they decided not to appeal the judge’s ruling after they learned that the organization claiming responsibility for the break-in and making the tape publicly renounced any claims of confidentiality. (See story, SPLC Report, Winter 1999-2000).
In another unpublished case, a high school editor refused a trial court judge’s April 1995 order to turn over to prosecutors photos of a fight in the school’s parking lot. Editor Stacey Burns, of the Mountlake Terrace High School Hawkeye, argued that – with as many as 150 witnesses to the fight – police had not sufficiently attempted to obtain the information they sought from alternative sources before turning to the newspaper. Further, forcing the Hawkeye to act as an investigative arm of the police, Burns argued, threatened the independence and integrity of the newspaper. The judge disagreed, saying that everybody that had seen the fight would have a different version and that the photos would be of material help to the prosecutors. The judge also noted that Hawkeye photographers had not made any promises of confidentiality; they were merely witnesses who had recorded the event. However, the judge said he would delay issuing a contempt order – which could have resulted in Burns being jailed – until the student editor had appealed the decision. In June 1995, the Washington State Supreme Court refused to hear her “fast-track” appeal and sent the case back to the trial court where Burns’ attorney said it sat in “limbo.” Burns never revealed the newspaper’s photos and was never found in contempt. The prosecutor eventually dropped the subpoena. (See story, SPLC Report, Fall 1996).
In neither the Western Washington University case nor the Mountlake Terrace High School case were there any questions raised about the applicability of the privilege to student reporters, which indicates that Washington courts do not consider students — even unpaid high school journalists — to be categorically disqualified from claiming the common-law privilege.
West Virginia (SL, CRP)
Shield Law: W. Va. Code 57-3-10
In 2011, West Virginia became the 40th state to enact a shield statute, and its protections for students are some of the strongest and most explicit anywhere.
W. Va. Code Sec. 57-3-10 provides a qualified privilege against having to give testimony in any official proceeding concerning confidential sources, or to produce information that would identify a confidential source, unless the testimony or information is found necessary to prevent imminent death, serious bodily harm or unjust imprisonment. The statute covers “reporters,” defined as those who “regularly” gather, prepare or publish news or information to the public for a substantial portion of their livelihood. But the statute goes on to say that “a student reporter at an accredited educational institution” is entitled to the privilege regardless of whether the reporting is done for compensation. This not only means that unpaid student journalists are protected, but it likely means that students at all educational levels, not just college, are covered so long as they “regularly” engage in gathering news for public distribution.
Before enactment of the statute, West Virginia recognized a qualified privilege in State ex rel. Hudok v. Henry, 389 S.E.2d 188 (W. Va. 1989), based on both the West Virginia state constitution and the First Amendment. The privilege protects all information gathered by the reporter, including confidential and non-confidential sources and information as well as unpublished and published information. The privilege, however, may be overcome in a civil case if the requester makes a clear and specific showing that the information is: (1) highly material and relevant, (2) necessary or critical to the maintenance of the claim and (3) not obtainable from other available sources.
The state supreme court extended the qualified privilege to unpublished non-confidential information sought in a criminal proceeding in State v. Ranson, 488 S.E.2d 5 (W. Va. 1997). The court established another three-prong test for criminal cases. The criminal defendant must show with particularity that: (1) the information is highly material and relevant, (2) it is necessary or critical to the defendant’s defense and (3) the information is not available from alternative sources. The defendant must also explain what he or she expects the sought information to contain.
Section 57-3-10(c) states that the statutory privilege does not supersede constitutional rights, so even though the 2011 statute covers only confidential source materials, journalists should continue asserting the broader common-law privilege if hit with a demand for information not furnished by confidential sources.
Wisconsin (SL, CRP)
Shield Law: Wis. Stat. § 885.14
In 2009, the Wisconsin legislature enacted, and the governor signed, a “whistleblower” protection bill that extends shield protection both to journalists and directly to confidential sources themselves. The law creates an absolute privilege against being subpoenaed to testify as to the identity of confidential sources or any information gathered from confidential sources. It recognizes a qualified privilege for all other materials “obtained by a news person in gathering or preparing information for potential dissemination to the public.” A judge can overcome the qualified privilege and order disclosure of material, other than confidential source material, if the information is “highly relevant” and “critical or necessary” to a civil or criminal case, there is no alternative source for the information, and there is an “overriding” public interest in disclosure. Interestingly, the law also prohibits enforcing a subpoena against the source himself to compel disclosure of information indirectly that could not have been obtained from the journalist directly.
The Wisconsin definition of a journalist is relatively broad, and includes any “business or organization” that “disseminates news or information to the public,” and anyone who is engaged in gathering, preparing or distributing information for one of those entities. Because the definition does not require any formal employment relationship or compensation, some regular participation in journalistic activity should be enough for a student to qualify for the protection of the Wisconsin shield. It is also important for any journalist dealing with a confidential source to make the source aware of the whistleblower protection as well.
Even before enactment of the shield law, the Wisconsin Supreme Court firmly upheld the qualified right of journalists to refuse to disclose confidential and non-confidential sources under both the First Amendment and the Wisconsin Constitution. Kurzynski v. Spaeth, 538 N.W.2d 554, 559 (Wis. Ct. App. 1995). The privilege was extended even to appearances before a grand jury. Zelenka v. Wisconsin, 130 Wis. 2d 34 (1986). To overcome the privilege, courts looked to three factors: (1) whether the party seeking the information has sought the material through alternative sources, (2) whether the information is non-cumulative and (3) whether the information is of clear and actual relevance to an important issue of the case. Kurzynski, 538 N.W.2d at 560.
Shield Law: None
At least for now, Wyoming journalists make promises of confidentialityat their own risk. In addition to the lack of a shield law, thereare no reported cases in which the state’s courts have appliedor rejected a common-law privilege based on either the First Amendmentor the state constitution giving journalists the right to withholdconfidential sources of information. For now, Wyoming studentjournalists may be left to rely on the First Amendment-based privilegerecognized by the U.S. Court of Appeals for the tenth circuit.See Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir.1977).