Reporter's Privilege guide: Indiana – Montana

SL = State has enacted a shield law

CRP = State has a court-recognized privilege, generally based on the state constitution or federal First Amendment.

Indiana (SL, CRP) 

Shield Law: IND. CODE Section 34-46-4-1 

In Indiana, reporters must “receive income” from reporting and writing and be connected with or employed at “a newspaper or periodical . . . having a general circulation” or a licensed radio or television station to be covered under the statute. If a student journalist meets the requirements, he or she will be protected from disclosing in any legal or non-legal proceeding the name of any confidential source obtained from reporting. The shield law has been construed to protect only confidential sources of information rather than the information itself. College journalists seem more likely to be covered by this statue than –high school journalists because high school journalists are generally unpaid.

Student media – particularly high school media – may have more luck seeking protection under the state’s court-recognized reporter’s privilege. In In Re Stearns, 489 N.E.2d 146 (Ind. 1986), a state court of appeals recognized a qualified First Amendment privilege protecting disclosure of non-confidential information in a civil case. If the information desired is relevant, disclosure is critical to someone receiving a fair trial and other sources have been exhausted, the interests will be balanced to determine if compelled disclosure is warranted.

So far, Indiana courts have not distinguished between student and commercial news media. For example, in In re: Matter of an 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 Indiana University student photographer to argue – albeit unsuccessfully – that he was protected by the state’s qualified First Amendment privilege from having to provide a county prosecutor with photographs he had taken of a campus riot. The student, who normally worked for the campus yearbook, had sold one of his photos to the Indiana Daily Student newspaper. In rejecting the student photographer’s motion to quash the subpoena, the judge did not question the applicability of the privilege to student media, but rather ruled that – at least in Indiana – the First Amendment-based privilege (the student did not seek protection under the state shield law) did not apply to criminal investigations. The judge also noted that any harm to the First Amendment rights of the photographer were minimal because the student had merely witnessed and photographed the riot; he had not made any promises of confidentiality. (See story, SPLC Report, Fall 1991).

Recently, the Indiana Supreme Court in In re WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998), also refused to extend the First Amendment privilege to cover criminal cases.

Iowa (CRP) 

Shield Law: None

Iowa does not have a shield law, but its courts recognize a qualified privilege under the First Amendment and the Iowa Constitution. The courts lean toward disclosure in criminal cases, grand jury proceedings and in libel suits. Iowa courts have held the privilege protects 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 action or defense and whether all other means of obtaining it have been exhausted. A journalist requesting the privilege is protected if he or she “falls within the class of persons qualifying for the privilege” and the information sought was obtained as part of the “newsgathering process.” Unfortunately, the terms “class of persons” and “newsgathering process” have not yet been defined by Iowa courts, although one district court extended the privilege to a freelance journalist. Stanfield v. Polk County, 18 Media Law Rptr. 1262 (Iowa Dist. Ct. 1990). Unless the courts say otherwise, it can be argued that student journalists are protected.

Kansas (SL, CRP) 

Shield Law: K.S.A. 60-480 to 482

In 2010, the Kansas legislature enacted H.B. 2585, which was signed into law as Kansas Statutes sections 480, 481, and 482. The law creates a qualified reporters’ privilege that covers all unpublished materials, including notes, photographs, and recordings. The privilege can be overcome if the party seeking disclosure can show that the information is 1) material and relevant to the proceeding, 2) could not be obtained by reasonable alternative means, and 3) is of a compelling interest. 

The law defines a “journalist” as “(1) a publisher, editor, reporter or other person employed by a newspaper, magazine, news wire service, television station or radio station who gathers, receives or processes information for communication to the public; or (2) an online journal in the regular business of newsgathering and disseminating news or information to the public.” This broad definition could arguably cover staff members at college publications and broadcasting stations who are working for a stipend or college credit, particularly because the law does not require journalists to have substantial compensation to qualify as “employed.” 

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, although the privilege was 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. § 421.100 

Kentucky’s shield law provides reporters with limited protection from disclosing a source’s identity, but not the information itself. While the law covers any person engaged in, employed by, or connected with a newspaper, radio, or television station, it only protects the identity of sources, and applies only when the information supplied by the source is actually published or broadcast. The law does not protect a reporter’s observations (e.g. witnessing a criminal act), material obtained through personal investigation, reporter’s notes, recordings, or any other information. Lexington Herald-Leader v. Beard, 690 S.W.2d 374 (Ky. 1984); Branzburg v. Pound, 461 S.W.2d 345 (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’s common-law privilege under both the First Amendment and the Kentucky Constitution. 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 probably be entitled to the same statutory protection available to other journalists. However, due to the law’s narrow scope, caution must be exercised when making promises of confidentiality.

Louisiana (SL, CRP) 

Shield Law: LA. REV. STAT. ANN. §§ 45:1451 to 1459 

The Louisiana shield law provides a privilege against revealing the identity of a source, directly or indirectly. The law applies in both civil and criminal cases and applies to confidential and non-confidential information. It covers people regularly engaged in editorial activities of the “news media,” which it defines to include radio, television, press associations, etc., and “any newspaper or periodical issued at regular intervals and having a paid general circulation.” 

Unfortunately, there are no cases where the law has been applied to student journalists, so it is unclear whether student journalists would be afforded protection. However, it could certainly be argued that student journalists are “regularly engaged” in editorial activities. Many student newspapers are distributed free on campus, so could be exempted from the statute’s protection due to their the lack of a paid circulation. However, it might be argued that student activity fees or tuition payments that support the paper are the equivalent of the subscription fee charged by other papers. Student journalists may also look to Louisiana v. Fontanille, 1994 La. App. LEXIS 191 (La. Ct. App. 5th Cir. 1994) to support the claim that the shield law should apply to them. In Fontanille, the court of appeals interpreted the definition of a reporter broadly to include an investigative nonfiction book author who, they held, could claim the shield law’s protections.

Although the law protects only sources, the Louisiana Court of Appeals has ruled that the information provided by the source does not need not be published for the protection to apply. Dumez v. Houma Mun. Fire and Police Civil Serv. Bd., 341 So.2d 1206 (La. Ct. App. 1976), cert. denied, 344 So.2d 667 (1976). A later decision by a lower court expanded that protection by including not only the identity of the source, but also any information that might reveal the source’s identity. In re Michael Burns, 484 So.2d 658 (La. 1986). The law does not specify whether the source must have promised confidentiality for the law to be in effect.

There are certain limitations included in the law that must be kept in mind. First, the party seeking disclosure may apply to the court for an order to revoke the statutory privilege. The order will be granted if the court determines “that the disclosure is essential to the public interest.” In addition, in the case In re Grand Jury Proceedings (Ridenhour), 520 So.2d 372 (La. 1988), an appeals court made it clear that the privilege could be revoked where it is shown that the subpoena was issued in good faith and not simply to harass the journalist. Second, in defamation cases, the burden is on the reporter to prove that the material was obtained from a source who was promised confidentiality. Finally, the Ridenhour case, in recognizing a reporter’s qualified First Amendment privilege in addition to the statutory protection, held that such a privilege would not apply to criminal activity witnessed by a reporter.

Journalists should be aware that the Louisiana statute includes a fairly detailed list of procedural requirements that must be adhered to by those subpoenaing the news media. These requirements protect some of the interests of journalists and should be consulted immediately 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 the information or source’s identity is: 

(1) material and relevant, 

(2) is critical to a party’s claim, defense, or proof of an issue,

(3) cannot be obtained from any alternative source or through means less destructive of the First Amendment, and

(4) there is an overriding interest in the disclosure. 

Based on information provided by a source other than the journalist, there must also be reasonable grounds to believe a crime has occurred or that the party seeking disclosure can actually bring a 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.” Therefore, student journalists are likely covered by Maine’s shield law provided that 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 journalistic 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 both the identity of sources of information and the information itself, including notes, outtakes, recordings, and other data. However, the state Office of the Attorney General released an advisory opinion clarifying that the law only applies to information that is actually published. 63 Md. Op. Att’y Gen. 325 (1978). The law applies to journalists who are “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.” The law was amended in 2010 to specifically include college journalists “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.”

It is not clear if the law would also apply to 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 other provisions of the law. Ironically, the amendment arguably makes it more difficult for high school journalists to claim the privilege because the legislature expressly included only students enrolled in “postsecondary” institutions, so a court would probably infer an intent to exclude all other students.

Under ths 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) cannot be obtained by other means and 

(3) there is an overriding public interest that compels disclosure. 

The statute’s protection applies evenly to both 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 (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 existed 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 (Md. App. 2003) (refusing to determine whether a state constitutionally-based privilege exists).

Massachusetts (CRP) 

Shield Law: None

Massachusetts has refused to adopt statutory protection for journalists, and the Supreme Judicial Court of Massachusetts has also refused to interpret a common law reporter’s privilege under the state or U.S. constitutions. See In Re Roche, 411 N.E.2d 466, 473 (Mass. 1980); Com v. Corsetti, 438 N.E.2d 805 (Mass. 1982). However, some Massachusetts courts have protected reporter’s confidential sources by recognizing a need to balance the interests of journalists with the public’s interest in the free flow of information. See In re John Doe Grand Jury Investigation, 574 N.E.2d 373 (Mass. 1991); Ayash v. Dana Faber Cancer Inst., 822 N.E.2d 667, 696 (Mass. 2005); In re Pelvic Mesh Gynecare Litigation, 32 Mass. L. Rptr. 304 (Mass. Super. 2014). 

In addition, the Supreme Judicial Court recognized a qualified common-law privilege to protect confidential sources 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 weigh the public interest in the free flow of information against the litigant’s need for the information and the availability of information from other sources in deciding whether a reporter should be protected from disclosure of a source or information. The court did not indicate whether the privilege would apply to student journalists, but it did hold that the interests for and against disclosure would be balanced on a case-by-case basis. A Massachusetts district court also held that an investment analyst who had written a report on a company could invoke the reporter’s privilege, even though he was not a member of the organized press. Summit Tech., Inc. v. Healthcare Capital Grp., Inc., 141 F.R.D. 381, 384 (D. Mass. 1992). 

Michigan (SL) 

Shield Law: MICH. COMP. LAWS §§ 767.5a and 767A.6 

Michigan’s shield laws are applicable only in cases where a prosecutor issues a subpoena or in grand jury proceedings. Both statutes protect “a reporter or other person” who gathers news for broadcast or publication. They also protect only confidential sources and unpublished information. Marketos v. American Employers Ins. Co., 460 N.W.2d 272 (Mich. Ct. App. 1990). Michigan courts have refused to recognize a constitution-based reporter’s privilege.

In a grand jury proceeding, the shield laws’ privileges are overcome where the information sought concerns a “crime punishable by imprisonment for life,” when it is “essential to the purpose of the proceeding” and when it cannot be obtained from another source.

Subpoenas issued by a prosecutor can only be upheld where the information has already been broadcast or published or where “the reporter is the subject of the inquiry.”

No cases in Michigan have addressed how the courts would interpret the word “reporter” in the statutes. However, in In re Investigation of March 1999 Riots in East Lansing, 617 N.W.2d 310 (Mich. 2000), the state supreme court ruled that Michigan State University’s student newspaper and other commercial media organizations did not have to comply with a subpoena seeking the newspaper’s photos of a campus riot. The court ruled that a prosecutor, who was attempting to build a case against the rioters, could not compel the newspaper to turn over its pictures because the pictures were not disseminated to the public and the reporters were not the subject of the inquiry. (See story, SPLC Report, Winter 2000-01). Therefore, it seems clear that the shield law’s broad language does cover student journalists, if not as reporters, then at least as “other persons.”

Minnesota (SL, CRP) 

Shield Law: MINN. STAT. ANN. §§ 595.021 to .025 

The Minnesota shield law, which was revised in 1998, explicitly recognizes the public’s interest in protecting the free flow of information provided by the news media. The law protects those persons “directly engaged in the gathering, procuring, compiling, editing, or publishing of information” from revealing sources or unpublished information. However, the Minnesota Court of Appeals has ruled that the law does not apply to reporters who personally witness crimes, or to unpublished, non-confidential information. Heaslip v. Freeman, 511 N.W.2d 21, 24 (Minn. App. 1994); State v. Turner, 550 N.W.2d 622 (Minn. 1996). There are no reported cases directly involving students under the state’s revised shield law, but student journalists should have the same protections now afforded to the commercial media.

The sweeping protection offered by the law is limited by a statutory procedure for those who seek exemption from the rule. Journalists can be forced to reveal both sources and unpublished information where the material sought: 

(1) is clearly relevant to a gross misdemeanor or felony or a regular misdemeanor as long as the information obtained by testifying would not identify the source, 

(2) cannot be obtained by alternative means and 

(3) is necessary to prevent injustice. 

In addition, the shield law will not protect journalists in any defamation action where the person seeking disclosure can demonstrate that: 

(1) the identity of the source is clearly relevant to the issue of actual malice and 

(2) the information cannot be obtained by alternative means. 

These issues are determined during a court hearing, but can be directly appealed to a higher court. However, because the exceptions are so broad, the effectiveness of the shield law is doubtful. Journalists in this state must exercise caution in their offers of confidentiality.

Under the previous version of the shield law, a student newspaper was ordered to turn over photos of a raucous campus rally after a court ruled that the law, which did not shield all unpublished material, did not protect the material. The photos were sought as evidence in a trial involving a student accused of assaulting a police officer during the rally. For over two years, the student newspaper at the University of Minnesota denied the judge’s request. In January 1996, however, the court found then-editor Michelle Ames in contempt of court. While Ames was prepared to go to jail rather than turn over the photos, the court instead fined the newspaper $250 for each day the photos were not turned over. The newspaper’s battle finally ended with the conclusion of the trial. (See story, SPLC Report, Spring 1996).

In addition to the uncertain protections afforded by the law, Minnesota journalists must also take heed of the holding in Cohen v. Cowels Media, 479 N.W.2d 387 (Minn. 1992), where a court decided that a source can sue a reporter for breaching a pledge of confidentiality.

The Minnesota Supreme Court has declined to recognize a state-constitution-based reporter’s privilege in criminal cases. State v. Turner, 550 N.W.2d 622, 628 (Minn. 1999). However, state courts have recognized a First Amendment-based privilege for a reporter’s sources and materials in civil matters. Weinberger v. Maplewood Review, 648 N.W.2d 249 (Minn. App. 2002).

Mississippi (CRP) 

Shield Law: None

Although Mississippi does not have a statute recognizing reporter’s privilege, courts in the state have recognized a reporter’s qualified privilege to refuse to disclose confidential information or sources in 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. Yalobusha Cty., Mar. 23, 1983). The courts in Hawkins and Hardin based the reporter’s privilege on the First Amendment and the state constitution. The privilege is not applicable, however, in defamation cases. Eason v. Fed. Broad. Co., 697 So.2d 435, 437 (Miss. 1997). While there are no reported cases involving student journalists, there is nothing to suggest that courts would distinguish between student and commercial news media in applying the privilege.

Missouri (CRP) 

Shield Law: None

Missouri does not have a shield law, although one was proposed during the 2007 legislative session, but was ultimately defeated. Even so, the Missouri Court of Appeals has recognized a qualified privilege against compelled disclosure of confidential sources and information based on the First Amendment. State ex. rel. Classic III, Inc. v. Ely, 954 S.W.2d 650 (Mo. Ct. App. W.D. 1997). In Classic III, the court held that the reporter’s privilege protects “confidential communications made by confidential sources,” even when the information from the sources was not relied upon for the story. The court focused on four factors when balancing the necessity of disclosure and the interest of confidentiality: (1) whether alternative sources of information have been exhausted, (2) the importance of protecting confidentiality, (3) whether the information is crucial to the other party’s case, and (4) whether the plaintiff has made a prima facie case for defamation. The court noted that this privilege only applies when the source has been promised confidentiality. Another Missouri court noted that this implied privilege does not apply in grand jury proceedings. CBS, Inc. (KMOX-TV) v. Campbell, 645 S.W.3d 30, 33 (Mo. App. 1982).

While there are no reported cases involving student media, student journalists may argue that the qualified privilege applies to them on First Amendment grounds just as it would to professional journalists.

Montana (SL)

Shield Law: MONT. CODE ANN. §§ 26-1-901 to 903 

Montana’s student journalists are protected by one of the country’s strongest shield laws. The law, known as the “Media Confidentiality Act,” protects those persons “connected with or employed by” a news media organization from having to disclose any information or the source of that information in any legal proceeding, provided the material was gathered in the course of the person’s duties as a newsperson. In Linda Tracy v. City of Missoula, Missoula County Cause No. DV-00-849 (2001), a district court judge ruled that Linda Tracy, a University of Montana journalism student, was covered under Montana’s shield law. Tracy was subpoenaed by prosecutors after she refused to turn over raw footage she shot during a Hell’s Angels gathering. The footage was used for a documentary she produced for her student internship, which aired on Missoula Community Access Television. The judge said that because Tracy’s work was gathered in “connection with” one of the protected media organizations listed in the state statute, she was acting as a journalist under the law and wasprotected 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 journalist volunteers to testify before a judicial, administrative or legislative body about either the information or its source. There is no reported decision in Montana where courts have recognized or declined to recognize a state or federal constitutional privilege.

Click here to see the reporter’s privilege guide for Alabama, Alaska, Arizona, Arkansas, California, Colorado, Connecticut, District of Columbia, Delaware, Florida, Georgia, Hawaii, Idaho and Illinois.

Click here to see the reporter’s privilege guide for Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon and Pennsylvania.

Click here to see the reporter’s privilege guide for Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon and Pennsylvania.

Click here to see the reporter’s privilege guide for Rhode Island, South Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia, Washington, Wisconsin and Wyoming