SL = State has enacted a shield law
CRP = State has a court-recognized privilege, generally based on the state constitution or federal First Amendment.
Rhode Island (SL)
Shield Law: R. I. GEN. LAWS §§ 9-19.1-1 to 19.1-3
The Rhode Island “Newsman’s Privilege Act” applies to a “reporter, editor, commentator, journalist, writer, correspondent, news photographer, or other person directly engaged in the gathering or presentation of news.” The law only applies to confidential information or confidential sources. In Outlet Communications, Inc. v. State, 588 A.2d 1050, 1052 (R.I. 1991), the court found that an interview conducted on a public sidewalk was “anything but secret or confidential.” The court defined “confidential information” as information “given either in secret or in confidence to the news entity that claims the privilege.” Id.
While it appears that the law could 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 maintain membership in a national, state, or local press association or student 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 advantage. In addition, the statute defines a newspaper as “one that is issued at regular intervals and has a paid circulation.” While some student newspapers do not charge students for the paper, if the school charges a student activity fee that supports student media, charges for multiple copies, or sends papers to subscribers through the mail, the student journalists may be able to claim that they have a paid circulation.
The privilege can be divested if the court finds that “disclosure of the information or source of information is necessary to permit a criminal prosecution for the commission of a specific felony, or to prevent a threat to human life, and that the information or the source of the information is not available from other prospective witnesses.” In addition, the privilege does not apply if the information has already been published or in a defamation case where the reporter asserts a defense based on the source of information.
The Supreme Court of Rhode Island has refused to recognize either a federal or state constitution-based reporter’s privilege. Capuano v. Outlet Co., 579 A.2d 469, 474 (R.I. 1990).
South Carolina (SL, CRP)
Shield Law: S.C. CODE ANN. § 19-11-100
The South Carolina shield law is only applicable when the person, company, or entity asserting the privilege is “not a party in interest to the proceeding,” but the party seeking to compel the disclosure is. The privilege applies to any confidential and non-confidential “information, document or item” in any civil or criminal proceeding. For example, the South Carolina Supreme Court in Decker v. Smith, 471 S.E.2d 462 (S.C. 1995), found the reporter’s privilege inapplicable because the court, which was not a party, was seeking the reporter’s testimony.
The South Carolina shield law is qualified and can be overcome if the reporter waives the privilege or the testimony or information sought is: (1) material and relevant, (2) unavailable by alternative means, and (3) necessary to the case. The shield law applies to both published and unpublished information.
Student journalists should be able to claim the privilege because it broadly applies to “a person” who is or was engaged in gathering and disseminating news for the public. While the courts 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 public dissemination, the shield law should apply.
In addition to the shield law, the Supreme Court of South Carolina has recognized a First Amendment-based “qualified privilege in limited situations, such as when the grand jury acts in 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)(emphasis in original).
South Dakota (SL, CRP)
The South Dakota shield law explicitly includes student journalists in its definition of journalist. It states that a journalist is any person who, for pay, is engaged in gathering, preparing, collecting, writing, editing, filming, taping, or photographing news for publication in or with a professional medium or agency. The term journalist includes “any student enrolled at an accredited university, college, or technical school in this state.”
Tennessee (SL)
Shield Law: TENN. CODE ANN. § 24-1-208
The Tennessee shield law protects those either “connected with” the news media or those independently engaged in gathering information for publication or broadcast. Though there are no reported cases in which the law has been invoked by student journalists, the broad statutory language makes it likely that students would be entitled to its full protection.
The law protects both sources and information from compelled disclosure before almost all Tennessee government bodies. Further, the Tennessee Supreme Court has ruled that the shield law protects against disclosure in either civil or criminal litigation and that 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 substantial protection, there are two very important limitations included in the law. First, the law’s protections do not extend to defamation suits where the defendant “asserts a defense based on the source of information.” Second, any person seeking disclosure from a reporter protected by the law may apply to the court of appeals for an order to remove such protection. The order will be granted only where the party seeking disclosure clearly and convincingly demonstrates that: (1) there is probable cause to believe that the reporter (or other person protected by the law) has information that is clearly relevant to a specific probable violation of the law, (2) the information sought cannot be reasonably obtained by alternative means, and (3) the people of Tennessee have a compelling and overriding public interest in obtaining the information. See Tennessee v. Curriden, 14 Med. L. Rep. 1797 (Tenn. 1987) (An example of the Tennessee Supreme Court’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 to the Tennessee Supreme Court.
To date, there is no court-recognized reporter’s privilege in Tennessee.
Texas (SL, CRP)
Shield Law: Tex. Civ. Prac. & Rem., Code Ann. § 22.021; Tex. Crim. Proc. Code An. § 38.11
In 2009, Texas signed into law the Texas Free Flow of Information Act. 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 someone who “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. However, 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.
Texas courts have sporadically clarified who falls under the definition of “news media” on a case-by-case basis since the law passed. The court considered book authors and publishers, blog writers, and authors of internet articles to be “journalist” in the understanding of the statute. Kaufman v. Islamic Soc. of Arlington, 291 S.W.3d 2009 (Tex. App. 2009); Main v. Royall, 348 S.W.3d 381 (Tex. App. 2011); Abraham v. Greer, 509 S.W.3d 609 (Tex. App. 2016). However, entities like labor unions and drilling associations do not count as news media under the Act. Int’l Ass’n of Drilling Contractors v. Orion Drilling Co., 512 S.W.3d 483 (Tex. App. 2016); Serv. Emps. Int’l Union Local 5 v. Prof’l Janitorial Serv. of Houston, Inc., 415 S.W.3d 387 (Tex. App. 2013).
To date, there have been no reporter’s privilege cases involving student journalists. However, given the fairly broad interpretations of what constitutes “news media” under the statute, there is nothing to suggest that courts would not apply the privilege to student journalists in the future.
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, Texas 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). The court in 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 or she 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.
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. OR 2001-2594 (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 the 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.” However, the advisory committee’s note on the rule mentions that this definition was kept deliberately “broad and flexible . . . to accommodate the ever-changing methods of expression and publication,” particularly as the internet changes the nature of media. Because this definition is supposed to be broad, student journalists would likely fall under the shield law. The privilege may be claimed by the reporter, news organization, or the confidential source and his or her representatives.
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 the enactment of the rule, 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 cases involved student journalists.
Vermont (SL, CRP)
Shield Law: 12 V.S.A. § 1615
The 2017 shield law provides an absolute privilege for confidential information and a qualified privilege for information not received in confidence. The statute broadly defines journalism and journalist. A journalist is an individual or organization “engaging in journalism or assisting an individual or organization engaging in journalism” at the time the news or information sought to be compelled was obtained, or “any supervisor, employer, parent company, subsidiary, or affiliate of an individual or organization engaging in journalism.” Journalism is “investigating issues or events of public interest for the primary purpose of reporting, publishing, or distributing news or information to the public” or “preparing news or information concerning issues or events of public interest for publishing or distributing to the public, whether or not the news or information is ultimately published or distributed.”
The Vermont Supreme Court recognized a qualified privilege for reporters under the First Amendment. State v. St. Peter, 132 Vt. 266 (1974). This privilege applies in civil as well as criminal cases. Spooner v. Town of Topsham, 937 A.2d 641 (Vt. 2007) (holding that the privilege exists in civil cases, but the reporter in question did not qualify for it). However, in a criminal matter, the party seeking disclosure can overcome the privilege if: (1) there is no alternative source for the information and (2) the information is relevant and material to the issue of the defendant’s guilt or innocence. The court in Spooner ruled that the privilege did not extend to testimony before grand juries. The Supreme Court of Vermont has also noted that if the common law privilege does exist, it “is expressly limited to cases in which the news reporter is ‘legitimately entitled to First Amendment protection,'” and does not apply to eyewitness accounts of criminal investigations or grand jury proceedings. In re Inquest Subpoena (WCAX), 890 A.2d 1240 (Vt. 2005).
The Vermont privilege has never been extended to student journalists, but nothing indicates that Vermont courts could not do so.
Virginia (CRP)
Shield Law: None
Virginia does not have a shield statute, but does recognize a common law qualified privilege for confidential sources in criminal and civil cases. Student journalists may be able to rely on the reporter’s privilege in Virginia because it is based on the First Amendment. The privilege only clearly protects the identity of confidential sources or confidential information. Brown v. Commonwealth of Virginia, 204 S.E.2d 429 (Va. 1974); Philip Morris Co. v. American Broad. Co., 36 Va. Cir. 1, 14 (Va. Cir. 1995). Non-confidentiality, however, does not preclude application of the privilege; it is only one factor in the court’s balancing test. Clemente v. Clemente, 56 Va. Cir. 530 (Arlington 2001). The other three factors of the test balance: (1) the relevance of the information, (2) whether the information can be obtained from alternative means, and (3) whether there is a compelling need for the information to be disclosed. Id. While there are no reported cases involving student journalists, there is nothing to suggest that courts would distinguish between students and commercial media in applying the privilege.
Washington (SL, CRP)
Shield Law: Wash. Rev. Code § 5.68.010
The Washington 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.” The law specifies that publication of the information is not considered a waiver of the law’s protection.
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.”
There is no case law applying the statute to student journalists, but student publications 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.” Even unpaid student journalists should be covered by the statute because it extends protection not only to “employee[s]” (indicating a more formal employment relationship), but also to an “agent” or “independent contractor” of the newsgathering entity who “is or has been engaged in bona fide news gathering for such entity.”
Journalists may be compelled to disclose news or information—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) is critical or necessary to the maintenance of a party’s claim, defense, or proof of an issue, 3) the party seeking disclosure has “exhausted all reasonable and available means to obtain [the information] 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 the party seeking disclosure has a bona fide civil cause of action.
Before the statute was enacted, the Washington State Supreme Court recognized a common law qualified reporter’s privilege that was very favorable to the news media. Senear v. Daily Journal American, 97 Wash.2d 148 (1982). To overcome the privilege, the court in Senear held that a party must show that: (1) the confidential information is necessary for proving a claim or defense, (2) reasonable efforts have been made to obtain the material through alternative sources, and (3) the claim is not frivolous. The state supreme court extended the privilege to include criminal trials in State v. Rinaldo, 102 Wash. 2d 749 (1984). The Washington Court of Appeals later 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 that made the tape and claimed responsibility for the break-in 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 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 of what happened, 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. Burns never revealed the newspaper’s photos, was never found in contempt, and 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 Section 57-3-10 provides a qualified privilege to reporters against having to give testimony in any official proceeding concerning confidential sources (including producing 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 defines “reporters” as those who “regularly” gather, prepare, or publish news or information to the public for a substantial portion of their livelihood. However, 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. To overcome the privilege, 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 will contain. See also, State ex rel. Charleston Mail Ass’n v. Ranson, 488 S.E.2d 5 (W. Va. 1997).
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: (1) “highly relevant” and “critical or necessary” to a civil or criminal case, (2) there is no alternative source for the information, and (3) 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 under the law. It is also important for any journalist dealing with a confidential source to make the source aware of the protection as well.
Even before enactment of the shield law, the Wisconsin Supreme Court firmly upheld the qualified right of journalists to refuse disclosure of 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. The Kurzynski case also commented on the need to balance the interest of insulating journalists from the undue intrusion and providing evidence for cases, but noted that such balancing is required regardless of whether a source was promised confidentiality. Id. at 559.
Wyoming
Shield Law: None
At least for now, Wyoming journalists make promises of confidentiality at their own risk. In addition to the lack of a shield law, there are no reported cases in which the state’s courts have applied or rejected a common-law privilege based on either the First Amendment or the state constitution to give journalists the right to withhold confidential sources of information. For now, Wyoming student journalists might be able to rely on the First Amendment-based privilege recognized by the U.S. Court of Appeals for the tenth circuit in Silkwood v. Kerr-McGee Corporation, 563 F.2d 433 (10th Cir. 1977).