The ability to protect your sources and newsgathering materials is often critical to your being able to gather information and inform the public. In the course of assembling information for an article, post, podcast, or other work, you may obtain information that, for a number of reasons, you do not wish to make available to the public.
Ironically, confidentiality may be an essential part of bringing
information to the public's attention because as a publisher, you may only be able to gather the information if you promise not to reveal the information's source. For example, reporting that involves the criticism of government and exposure of government and corporate wrongdoing often depends on the use of confidential sources.
Fortunately, the law provides tools with which to protect the information you obtain. Absent some kind of legal protection, a journalist or other individual gathering information for dissemination to the pubic may be compelled to identify his or her sources and produce documents in court and other governmental proceedings. Journalists and other citizens reporting the news have been asserting their right to keep their sources and materials confidential for longer than the United States has been an independent nation. In 1734, for example, John Peter Zenger refused to give the names of his sources when he was charged with seditiously libeling British Governor William Cosby of the New York Colony. Zenger, who was later tried and acquitted, was jailed for a month due to his refusal to identify his sources.
These legal protections are vital to the free flow of information in society. If reporters (and we use that term broadly here) are seen merely as an investigative arm of the government, individuals with information of great public concern may be afraid to share that information. As a result, the public may be deprived of information of critical importance to the proper functioning of our society and our democratic form of government.
The following sections address the legal challenges facing online publishers in maintaining the confidentiality of sources and source material and discusses the federal and state laws that may protect them from forced disclosure of this information.
What are the legal consequences if you promise confidentiality to a source? While your use of confidential sources should generally be the exception and not the rule (it’s almost always better to get something on the record and for attribution if you can), there are a number of reasons you might wish to promise a source confidentiality. For instance, some sources may only be willing to share information with you if you promise them confidentiality because they fear retaliation or other adverse consequences. In other situations, you may wish to promise your source confidentiality because in some places such a promise makes it harder for someone to require you to disclose the identity of your source in court.
Yet by promising your source confidentiality, you may incur legal obligations to your source. Keep in mind that promising a source confidentiality may make it difficult for you to change your mind later. For instance, you might decide that the source's identity is newsworthy and wish to report about it. While the law varies from state to state, some general guidance on this issue is possible.
First, consider carefully whether to promise your sources confidentiality. There are several potential benefits and drawbacks of promising confidentiality that you should consider:
Benefits of promising confidentiality:
Drawbacks of promising confidentiality:
In sum, promising confidentiality can provide benefits to you and your source, but you should only offer it after you have carefully weighed the benefits and drawbacks. If your source demands confidentiality, make sure you intend to maintain confidentiality if you agree. Also, no matter what you decide, it is a good idea to be clear with your source about what he or she should expect with respect to confidentiality. Agree with your source on exactly when and to whom, if anyone, you can reveal your source's identity.
Second, consider whether you will be able to keep the information secret. Once you have obtained information from a confidential source, you will need to keep the source's identity secret. Be careful of revealing any unpublished news you have received if you do not want the information to be public. It might be tempting to talk about a juicy piece of information you have discovered with your relatives, friends, or co-workers. Resist the temptation. There are a number of negative consequences that can occur if you reveal the identity of confidential sources or unpublished news to anyone.
In a number of states, if you reveal your source's identity to anyone, you can lose your ability to protect that information later. This means that even if you could have protected the information from a legal demand, you no longer will be able to do so. Even if you are still able to protect your information from a legal demand for it, the person who knows the information might not be able to do so. You might have a "journalistic privilege" to protect your sources' identities and unpublished information from a legal demand, but your friends and relatives and co-workers might not have such special protection. If a party to a lawsuit discovers that someone else has the information they want, they might ask a judge to require that person to reveal the information.
Beyond legal considerations, as a practical matter, the more people who know the information, the more likely it is to be revealed. People are not always good at keeping secrets, and you may not wish for the information to be revealed. If others do not know the identity of a source or a tidbit of unpublished news, they might not even realize it exists, so they may not ever know to seek it from you.
In general, by promising confidentiality to a source you might develop a legal obligation to your source in two ways, either by contract or through detrimental reliance. If you do not have a legal obligation to your source, typically he or she will not have any legal recourse against you if you break your promise of confidentiality.
First, you might have a legal obligation to your source if you have formed a contract with your source. Forming a contract does not require a formal, signed paper document. Contracts also do not require any "magic words." To the contrary, any exchange of promises can potentially represent a binding agreement.
Contracts can only be formed if you promise to do something (or refrain from doing something) in exchange for the other person promising to do something (or not do something). A one-way promise, with nothing expected in return, does not form a contract. Thus, an important question in determining whether you formed a contract when you promised a source confidentiality is: Was there an understanding that you would receive something in return? If you promised your source confidentiality with the understanding that you would receive information in return, that may represent a contract. On the other hand, if you promised the source confidentiality freely, with no promise of anything in return, you probably have not formed a contract.
Whether you and your source made an exchange of promises that constitutes a contract is based on a how a "reasonable person" would have interpreted your behavior. It is not based on how you or your source subjectively perceived the situation.
Even if you exchanged promises in a way that could represent a contract, some courts will hold that contracts formed based on a newsgatherer's promise of confidentiality are not valid. In other words, in some states, if a court deems you a newsgatherer, it will not punish you for revealing the identity of a confidential source to the public. Courts in these states hold that free speech interests, such as those embodied in the First Amendment of the U.S. Constitution, prevent them from punishing you.
"Detrimental reliance" (also called "promissory estoppel") is a fancy legal term that essentially means relying on a promise in a costly way. It is a type of promise that is legally binding in many states. It applies when you make a promise to someone that you expect that person to act on, and then that person relies on that promise in a way that could hurt that person if you break your word. The key difference between "detrimental reliance" and a contract is that "detrimental reliance" does not require an exchange of promises -- it only requires a one-way promise, and the the person who has been promised something relying on that promise.
An example may help "detrimental reliance" seem more understandable. Imagine that a boss tells his employee that she can have a day off so she can visit her far-away relative, as she had been saying that she wanted to for a long time. The employee, relying on her boss's promise, buys an airplane ticket to see the relative. At this point, the employee may be able to enforce the boss's promise under the doctrine of "detrimental reliance." By promising his employee the day off, the boss knew that his employee would go to visit her relative. The boss knew that his employee would have to spend money to buy a plane ticket. The employee, by buying the plane ticket, relied to her expense on the boss's promise. If the boss were to break his word, it would cause her financial injury.
Here's how "detrimental reliance" can come up for you: Imagine that you promise a source confidentiality. You expect that by making this promise, your source will reveal confidential information to you. As you expect, the source reveals confidential information. You then publish the confidential information you received from your source. Later, you want to reveal your source's identity to the public. The source will say the doctrine of "detrimental reliance" binds you because the source only gave you the information because you promised confidentiality. This is similar to what happened in the U.S. Supreme Court case of Cohen v. Cowles Media Co., 501 U.S. 663(1991), in which the Supreme Court held that it was okay to punish two reporters under the doctrine of "detrimental reliance" for breaking their promises.
Remember, your source can only take legal action against you if you promise your source confidentiality in such a way as to create a legally binding obligation. The two ways this can happen are detailed above.
Your source cannot prevent you from breaking a promise of confidentiality ahead of time. The First Amendment typically prevents any prior restraints against speaking. Your source also cannot take legal action against you if you are legally obligated to reveal your source's identity. For example, you might be legally obligated to reveal the information as the result of a valid court order. However, if you break your word of your own accord, your source can sue you after the fact.
If your source sues you for breaking your word and a court finds you had a legal obligation to keep your word, you may be ordered to pay your source compensatory damages. Generally, this means you must pay money to make up for anything your source has lost because you broke your word. Sometimes, this will not be much, but other times it could be a lot of money. In Cohen v. Cowles Media Co., 501 U.S. 663 (1991), the reporters had to pay $200,000 to their source.
There are several ways that others can attempt to acquire information about your newsgathering activities, including through a subpoena, search warrant, and discovery order in litigation. The most common of these approaches is through a subpoena. This section will detail when these methods may be used and their effects.
Subpoenas
A subpoena is a command to appear before a court. A subpoena can either require you to appear in person to provide testimony or information, or it can require you to provide specified documents, records, or other material. You can be subpoenaed in cases where you might not have realized you have relevant information.
Subpoenas are typically issued in the early stages of a case, when parties are trying to learn information relevant to their cases. In order to allow the parties in litigation to gather enough information, American judges tend to be generous in granting subpoenas.
If you receive a subpoena, you must think carefully about how to respond. You should not ignore it, since you can be punished for doing so. Refer to the section in this guide on Responding to Subpoenas for information on how to respond to a subpoena. If the subpoena relates to information you collected as part of your newsgathering or publishing activities, you might be able to defeat the subpoena and avoid having to appear or disclose information, see the Legal Protections for Sources and Source Material section for more information.
Search Warrants
Search warrants are orders by judges allowing police or other law-enforcement to search a location and take evidence. Search warrants are used in criminal cases. In most situations, the Fourth Amendment to the U.S. Constitution requires police to obtain a search warrant before they can search private premises. To obtain a warrant, police must demonstrate to a judge that they have "probable cause" to believe that the search will yield evidence of a crime.
If police do not have a warrant and wish to conduct a search of your premises, you may say no. For most people, if police have a valid search warrant, the search they conduct pursuant to the warrant is legal.
If you receive a search warrant that relates to information you collected as part of your newsgathering or publishing activities, you may be able to get it withdrawn. The federal Privacy Protection Act prohibits the issuance of a search warrant directed at documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. Please see the Legal Protections for Sources and Source Material section for details.
Discovery Orders
When you are a party to litigation, the opposing parties may use discovery orders to obtain information from you. Discovery orders can take a number of forms. For instance, they may require you to provide documents, or they may require you to answer questions in a deposition. The purpose of discovery orders is to allow all parties to have information so that they can pursue their arguments in court.
In federal courts in the U.S., and in most state courts, judges allow parties to conduct broad discovery -- they are generally willing to allow parties to get the information they request. Discovery orders are legally binding, and you can be punished for ignoring them. If you wish to challenge a discovery order that requests something from you, you must do so by notifying the judge who issued the order. The exact reasons you can challenge an order vary by court and jurisdiction. In general, you might be able to object that the information requested is not relevant to the case for which it was requested, that too much information was requested and only some is relevant to the case, that the request is unduly burdensome, or that you should not have to reveal newsgathering information. To determine whether you can avoid revealing your newsgathering information and sources, see Legal Protections for Sources and Source Material.
Keep in mind, however, that if you are a defendant in a lawsuit, your newsgathering materials and source information may be relevant -- or even essential -- to your defense. For example, if you relied on a confidential source for a statement that the plaintiff claims is defamatory, you may be in a position where you need to identify your source in order to show that it was reasonable for you to rely on that source for the information you published. If you refuse to provide the requested information, you may lose your ability to fully defend yourself.
The use of subpoenas, search warrants, and discovery orders in litigation that seek to acquire information about your confidential sources or source material can place a substantial burden on your newsgathering and online publishing activities, as well as on the free flow of information in society.
Fortunately, you are not powerless when faced with a demand for information obtained in the course of your newsgathering activities. Legal protections exist to protect those who gather news from having to reveal the identity of their confidential sources and from having to disclose unpublished information collected in the course of newsgathering. This section looks at the laws that provide protection and outlines the character and scope of that protection. Keep in mind that the legal protections available to you differ markedly from state to state. For information on state shield laws and other legal protections for sources and source material in the fifteen most populous U.S. states and the District of Columbia, please see the state-specific pages.
There are a number of different sources of legal protection for sources and source material. These include state shield laws, federal and state constitutional provisions, federal statutes, and common law privileges. In some geographical locations, only one or two sources of protection are available. In others, you may be able to take advantage of several sources of legal protection.
More than thirty U.S. states currently have shield laws that provide some level of protection for journalists and others who gather information for dissemination to the public. The first state shield law was enacted in Maryland on April 2, 1896, in response to the imprisonment of a Baltimore Sun reporter for refusing to reveal a confidential source to a grand jury. Over the years, other states have followed suit, recognizing the importance of a reporter's shield for supporting the public's "right to know."
The scope of shield law protection varies from state to state. The primary differences revolve around the following three questions:
For a detailed examination of state shield laws, see the State Law: Legal Protections for Confidential Sources and Source Material section of this guide.
There presently is no federal shield law. In its last session, Congress considered but did not pass a proposed federal shield law. The most recent version of the bill, H.R. 2102, excluded from coverage those who do not receive "a substantial portion of [their] livelihood" or "substantial financial gain" from their newsgathering and publishing activities. This language would probably exclude many non-traditional journalists and amateur online publishers, as well as freelance journalists who rely on other work to supplement their incomes. In any event, the Congress has not enacted the bill into law, so future revisions are possible.
Privacy Protection ActAn important federal law may protect you with regard to search warrants. Subject to certain exceptions, the Privacy Protection Act (PPA) makes it "unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize" work product and documentary materials "possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication." 42 U.S.C. § 2000aa(a),(b). If the PPA applies to you, it protects you regardless of what state you live in.
The PPA covers a publisher's "work product" and "documentary materials."
"Work product" is defined as materials: (1) "prepared, produced, authored, or created, whether by the person in possession of the materials or by any other person"; (2) "possessed for the purposes of communicating such materials to the public"; and (3) "include mental impressions, conclusions, opinions, or theories of the person who prepared, produced, authored, or created such material." 42 U.S.C. § 2000aa-7(b)(1). Work product thus includes things like your notes, drafts, and outtakes. Work product does not include contraband, "fruits" of crime, or materials intended to be or actually used in the commission of a crime.
"Documentary materials" are also defined broadly as "materials upon which information is recorded, and includes, but is not limited to, written or printed materials, photographs, motion picture films, negatives, video tapes, audio tapes, and other mechanically, magnetically or electronically recorded cards, tapes, or discs." Id. § 2000aa-7(a). As with work product, the definition does not include contraband, "fruits" of crime, or materials intended to be or actually used in the commission of a crime.
While the law on this point is not yet clear, the language of the PPA -- reaching "a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication" -- suggests that it may cover online publishers.
The PPA does not function like a shield law, which allows a reporter to refuse to comply with a subpoena or other discovery order. Instead, the PPA allows you to file a civil lawsuit for damages after the search and/or seizure takes place, if you believe it violated the law.
There are a number of exceptions to the PPA. Most importantly, government officials can legally carry out a search and/or seizure otherwise covered by the PPA if there is "probable cause" to believe that the reporter (or other publisher) has evidence linking him or her to a crime. 42 U.S.C. § 2000aa(b)(1). The government cannot invoke this exception, however, if the only "offense to which the materials relate consists of the receipt, possession, communication, or withholding of such materials or the information contained therein," unless the materials relate to the national defense or classified information. Id. There is also an exception when authorities have reason to believe that death or serious injury will result if the search is delayed. Id. § 2000aa(b)(2).
For more information on the Privacy Protection Act and a fantastic practical guide to dealing with newsroom searches, see the Student Press Law Center's Student Media Guide to the Privacy Protection Act.
Federal Constitution
A number of state and federal courts have found that the Free Speech Clause of the First Amendment of the U.S. Constitution creates a "reporter's privilege" against having to disclose the identity of confidential sources and/or turning over unpublished newsgathering materials. While the law is not settled, online publishers may be able to take advantage of this reporter's privilege. The constitutional reporter's privilege is not, however, universally recognized. Furthermore, even when recognized, it only provides a "qualified privilege," meaning that the person seeking information can overcome it with a strong showing of need.
Courts that recognize a privilege based on the First Amendment often make reference to the U.S. Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972). Branzburg is the only case in which the U.S. Supreme Court has addressed the federal reporter's privilege. Unfortunately, it is also a famously confusing case. The majority opinion, which typically is the legally controlling opinion, held that the First Amendment does not provide a reporter with a privilege from testifying before a grand jury about information obtained and events witnessed in the course of researching a story. However, Justice Powell wrote a concurring opinion in which he stated that demands for information from journalists should "be judged on [their] facts by the striking of a proper balance between freedom of the press and the obligation of all citizens to give relevant testimony." Because Justice Powell was a necessary fifth vote to form a majority, many courts treat his opinion as the controlling opinion. These courts frequently read his opinion as calling for a qualified privilege for reporters under the First Amendment.
Courts in different states and federal circuits have different views about the character and scope of the federal reporter's privilege. For more detailed information on the contours of this privilege, see the state pages.
State Constitutions
Quite a few state courts have found that a privilege exists for journalists under their respective state constitutions. Some states, like California, have explicit constitutional privileges for journalists, similar in form to a shield law. In other states, courts have derived a privilege from general state constitutional provisions, similar to the First Amendment.
For more information on state constitutional privileges, see the the state pages. Keep in mind that, even when a state recognizes a state constitutional privilege, its exact character and scope is often uncertain.
Some state and federal courts have created privileges for newsgatherers under the common law (i.e., judge-made law). Common-law protections for confidential sources and source material differ greatly in their scope and character. As with state and federal constitutional privileges, courts develop the common law of privilege on a case-by-case basis, and frequently the law is fraught with ambiguities and undefined "grey zones." For more information on common law privileges for confidential sources and source material, see the the state pages.
When you gather and publish information, it may be important to you to protect the confidentiality of your sources or source material. You may not wish for your sources' identities to be revealed, and you may not want all of the information you have gathered to be public. Here are some practical tips for you to consider when seeking to protect your newsgathering information:
Different states have different laws that may protect your confidential sources and source material. Different states base their protections on different sources of law. Who is protected, what information is protected, and the strength of protection varies greatly across the states.
The state-specific sections below provide
information about legal protections in the fifteen most populous U.S.
states and the District of Columbia. These sections also include
information about the law applied by federal courts in that state. For
a general overview of possible protections, see the section on Legal Protections for Sources and Source Material in this guide.
Note: This page covers information specific to California. See the section on Protecting Sources and Source Material for more general information.
There are three potential legal bases for protecting your sources and source material in California: the California shield law, the United States Constitution, and the federal Privacy Protection Act.
The shield law protects the identity of sources (whether promised confidentiality or not), information that might lead to the identity of sources, and unpublished information obtained or prepared in the course of newsgathering activities. A leading California case has found that the shield law protects some -- but not necessarily all -- online publishers and amateur journalists (more below). The level of protection offered by the shield law depends on whether the case is a civil or criminal case and whether the person from whom information is sought is a party to the case or not. It does not protect you from disclosing information when you are a party to a civil or criminal case.
The U.S. Constitution may protect you from having to disclose the identity of sources or information collected during newsgathering. Federal and state courts in California recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. The reporter's privilege applies to the identity of sources and unpublished information collected or prepared in newsgathering, whether confidential or not (although protection is stronger for confidential information). Because it is qualified, the party seeking information from a reporter may overcome it upon a strong showing of need. Unlike the shield law, this privilege may apply even when you are a party to a civil lawsuit or criminal case.
The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.
California has no other sources of law that offer you protection from disclosing information.
The California shield law is contained in the California Constitution, Cal. Const. art. I, § 2(b). An essentially identical shield law is also contained in California's Evidence Code, Cal. Evidence Code § 1070.
In relevant part, California's shield law states:
A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication . . . or any person who has been so connected or employed, shall not be adjudged in contempt [by a body with legal authority] for refusing to disclose the source of any information procured . . . or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. . . .
As used in this subdivision, 'unpublished information' includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.Who is Covered?
California's shield law protects a person "connected with or employed upon a newspaper, magazine, or other periodical publication." In an important case, O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006), a California appellate court held that the shield law applies to persons gathering news for dissemination to the public, regardless of whether the publication medium is print or online. In that case, Jason O'Grady operated an "online news magazine" about Apple Computers. He published confidential information he received about a new Apple product. Apple wished to sue the person who divulged the confidential information to O'Grady and subpoenaed him for information about the identity of his confidential source. The court applied the shield law, and O'Grady did not have to identify his source.
The O'Grady case does not mean that all online publishers will benefit from the protection of the California shield law. The court indicated that the shield law protects newsgatherers, like O'Grady, who engage in "open and deliberate publication on a news-oriented Web site of news gathered by that site's operators." On the other hand, the court said the shield law might not protect "the deposit of information, opinion, or fabrication by a casual visitor to an open forum such as a newsgroup, chatroom, bulletin board service, or discussion group." The court expressly declined to decide whether the shield law applies to bloggers because of the "rapidly evolving and currently amorphous meaning" of the word "blog." Thus, the exact reach of the California shield law is unclear, but it arguably protects online publishers who gather and disseminate news to the public. The exact definition of "news" is uncertain, and future cases will no doubt determine its contours more precisely.
What Information is Protected?California's shield law protects several types of information. First, it protects unpublished information obtained or prepared in the process of gathering information for communication to the public, including things like notes and outtakes. This unpublished information may be protected from disclosure regardless of whether you obtained it in confidence or not.
Second, it protects the identity of sources, whether confidential or not. The shield protects not only the identity of sources themselves, but also information that might lead to their identity.
Shield Law Protection in Different ContextsThe strength of protection offered by California's shield law varies based on the type of case and whether the person from whom information is sought is a party to the case:
For more detailed information about the California shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: California.
Even when California's shield law is inapplicable, a newsgatherer still may receive some protection based on the First Amendment of the U.S. Constitution. As discussed above, California's shield law does not protect parties to civil and criminal cases. However, California's state courts have found that the First Amendment provides newsgatherers with a qualified privilege against disclosure of confidential sources and information provided by confidential sources, even when they are parties to the case in which information is sought. In applying the qualified privilege, a court will balance the need of the person seeking information and the public interest in disclosure against the public interest in an uninhibited press.
Before ordering disclosure of the identity of confidential sources or information provided by confidential sources, California state courts balance five factors: (1) whether the reporter is a party to the litigation; (2) the importance of the information to the case; (3) whether other sources for the information are available; (4) the importance of protecting confidentiality; and (5) the strength of the case of the party seeking disclosure. It is not clear whether California courts would extend this protection to those publishing news through non-traditional media.
Federal courts in the Ninth Circuit, which encompasses California, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. An important case indicates that the privilege should protect a broad category of people engaging in newsgathering, stating that "what makes journalism journalism is not its format but its content." Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993). Although the law is not clear on this point, the privilege appears to protect the identity of sources and unpublished information, whether confidential or not. Protection likely is stronger, however, for confidential information.
The courts have applied the privilege in both civil and criminal cases, although its protection is stronger in civil cases. The courts have not upheld the privilege with respect to subpoenas issued in grand jury proceedings. The privilege is qualified, which means that a court may order you to reveal information if the need of the person seeking the information outweighs the policies favoring a privilege. The results of this kind of balancing test would be different depending on the facts of the particular case.
For additional information, see The Reporters Committee for Freedom of the Press's Privilege Compendium: 9th Circuit.
The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see Legal Protections for Sources and Source Material.
Note: This page covers information specific to the District of Columbia. See the section on Protecting Sources and Source Material for more general information.
The District of Columbia has a shield statute that may protect your newsgathering material from forced disclosure. The shield law protects both the identity of sources and unpublished information collected or prepared in the newsgathering process, such as notes and outtakes. The protection for the identity of sources is "absolute," meaning there are no exceptions to the law's protection. On the other hand, protection for unpublished information is "qualified," meaning it will not provide protection in all circumstances. The shield protects those who are "employed by the news media" (definition below), so it may not protect some amateur journalists and others who publish informally and/or sporadically.
In addition, federal courts in the D.C. Circuit have recognized a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. This qualified privilege protects a broad category of individuals collecting information for dissemination to the public, and it protects both the identity of sources and unpublished information.
The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.
The District of Columbia has no other sources of law that offer you protection from disclosing information.
The District of Columbia has a shield law, titled the Free Flow of Information Act, D.C. Code § 4701-4704. You can see the four parts of D.C.'s shield law below, with excerpts of important text. (Note that the links below are to the entire D.C. Code; you need to click on Title 16 and Chapter 47, and then choose the specific provisions.)
For the purpose of this chapter, the term "news media" means . . . [a]ny printed, photographic, mechanical, or electronic means of disseminating news and information to the public.
Except as provided in section 16-4703, no [legal body] shall compel any person who is or has been employed by the news media in a news gathering or news disseminating capacity to disclose: (1) The source of any news or information procured by the person while employed by the news media and acting in an official news gathering capacity, whether or not the source has been promised confidentiality; or (2) Any news or information procured by the person while employed by the news media in the course of pursuing professional activities that is not itself communicated in the news media . . . .
(a) A court may compel disclosure of news or information otherwise protected from disclosure under section 16-4702(2) if the court finds . . . by clear and convincing evidence that: (1) The news or information is relevant to a significant legal issue . . .; (2) The news or information could not, with due diligence, be obtained by any alternative means; and (3) There is an overriding public interest in the disclosure.
(b) A court may not compel disclosure of the source of any information protected under section 16-4702.
The publication by the news media or the dissemination by a person employed by the news media of a source of news or information, or a portion of the news or information, procured while pursuing professional activities shall not constitute a waiver of the protection from compelled disclosure that is contained in section 16-4702.
The D.C. shield law applies to information obtained by any person "while employed by the news media." In addition to traditional news media formats like newspapers, magazines, and television, the term "news media" also covers the broader category of "any printed, photographic, mechanical, or electronic means of disseminating news and information to the public." So, the "news media" clearly encompasses those engaging in online publishing of news and information.
The key question for many online publishers, therefore, will be whether they are "employed" in online publishing. There is no law specifically addressing this point in the online or non-traditional journalism context. But generally the law does not seem to require traditional employment by an organization. For instance, one case, Prentice v. McPhilemy, Case No. 98-CA-0004309 (D.C. Super. Ct. May 5, 1999), held that an author working on his own to write a book was covered by the statute. However, the law may require some kind of income or payment in return for your activities. This "employment" requirement could present an obstacle to some amateur journalists and others who publish independently, informally and/or sporadically and who do not make money from their activities.
D.C.'s shield law protects two categories of information, which are protected to different degrees:
Identity of Sources: D.C.'s shield law protects "the source of any news or information." The shield protection is absolute -- under no circumstances can courts compel someone covered by the statute (above) to divulge the identity of a source. It protects you whether or not you promise confidentiality to the source in question. The shield applies equally in criminal and civil cases. It also applies whether or not the newsgatherer is a party to the case in which information is sought.
Unpublished information: D.C.'s shield law protects information gathered or prepared for a story, post, or other work, which is not ultimately published. The shield covers all types of materials, whether written, audio, video, or any other format. It applies in both criminal and civil cases, and it applies whether or not the newsgatherer is a party to the case in which information is sought.
The protection offered by the D.C. shield law to unpublished information is qualified, which means that a court may force you to reveal it under certain circumstances, even if you are covered by the statute (above). In order to compel disclosure of unpublished information, a court or other legal body must find that three conditions are met: (1) the news or information is relevant to a significant legal issue; (2) the news or information could not, with due diligence, be obtained by any alternative means; and (3) there is an overriding public interest in the disclosure. ("Due diligence" is a legal term that generally refers to a reasonable amount of effort.)
The results of this kind of balancing test would be different depending on the facts of the particular case. Courts may be particularly inclined to order disclosure when the person trying to protect information is a party to the lawsuit in question, or when a criminal defendant seeks information to mount a defense.
For more detailed information about the D.C. shield law, see the Reporters Committee for Freedom of the Press' Privilege Compendium: D.C..
Federal courts in the D.C. Circuit have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. This qualified privilege applies to the identity of sources and unpublished information collected during newsgathering.
Although the law is not entirely clear on who may take advantage of the federal reporter's privilege, federal courts in D.C. have taken a broad view of who qualifies as a "reporter" or "journalist."
In one case, a federal district court characterized the law as follows: "an individual successfully may assert the journalist's privilege if he is involved in activities associated with gathering and dissemination of news, even though he may not ordinarily be a member of the institutionalized press." Under this view, the party claiming the reporter's privilege must introduce competent evidence to show that he or she had an "intent to use material -- sought, gathered, or received -- to disseminate information to the public and that such intent existed at the inception of the newsgathering process." Alexander v. FBI, 186 F.R.D. 21, 50 (D.D.C. 1998).
In another case, a court upheld the claimed privilege of an individual who published his own biweekly newsletter on U.S. political and social movements. The court explained that "the privilege is not limited to the writers of large established newspapers and media enterprises but is equally applicable to the sole publisher of a newsletter or other writing or paper distributed to the public to inform, to comment, or to criticize." Liberty Lobby, Inc. v. Rees, 111 F.R.D. 19, 20 (D.D.C. 1986). It would be possible to draw an analogy between this kind of newsletter and an independently published blog or website.
These cases provide strong support for the argument that a amateur and non-traditional journalists, including those who publish online, are protected by the federal reporter's privilege in D.C.
In D.C., the federal reporter's privilege protects both the identity of sources and unpublished information collected during newsgathering. With regard to sources, the privilege applies whether or not you promise confidentiality to a source. However, when you do not promise confidentiality to a source, the privilege may be weaker, and a court may be more willing to require disclosure.
In D.C., the federal reporter's privilege is qualified, meaning that a party seeking information can overcome it upon a proper showing of need. The federal courts are most likely to uphold the reporter's privilege in a civil case where the person invoking the privilege is not a party to the lawsuit. In contrast, courts are more likely to order disclosure of information in a criminal case where the criminal defendant is seeking information from a reporter to help mount his/her defense.
For additional information, see the Reporters Committee for Freedom of the Press' Privilege Compendium: D.C. Circuit.
The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.
Note: This page covers information specific to Florida. See the section on Protecting Sources and Source Material for more general information.
Florida has a shield law that may protect your sources and newsgathering materials. It protects both the identity of sources and unpublished information acquired or prepared during newsgathering, such as notes and outtakes. However, the protection extends only to "professional journalists" and appears to be limited to traditional media formats.
Nevertheless, even if you do not qualify for Florida's shield law, you may still be able to protect your sources and source material. Both prior to and after the passage of the shield law, Florida courts have confirmed that a common law privilege protects the identity of a journalist's sources and source materials. This common law privilege may offer protection for amateur and non-traditional journalists.
In addition, federal courts in the Eleventh Circuit, which encompasses Florida, recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. However, the scope of this privilege is uncertain.
The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.
Florida's shield law, located at Fla. Stat. § 90.5015, states in relevant part:
Florida's shield law applies only to "professional journalists." To qualify for the shield law's protection, you must be acting as an employee or independent contractor for "a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine." Book authors are specifically excluded from protection. The CMLP is not aware of any D.C. cases addressing whether an employee or independent contractor for an online news publication is covered by the statute, but the language of the statute makes such coverage doubtful. In addition, the "professional journalist" requirement would likely exclude from coverage many types of amateur and non-traditional journalists who do not receive payment for their work.
Florida's shield law extends to both the identity of sources and unpublished information gathered and prepared in the course of newsgathering, such as notes and outtakes. The statute excludes from its protection physical evidence, eyewitness accounts, or recordings of crimes. The shield law protects the identity of a source whether or not you promise confidentiality to the source in question. Publication of some information on a topic does not constitute a waiver of the privilege with respect to that topic.
The shield law provides a qualified privilege, which means that a court may force you to reveal information in some circumstances, even if you are covered by the statute (above). In order to compel disclosure of the identity of an anonymous source or unpublished information, a court or other legal body must find that three conditions are met: (1) the information is relevant and material to unresolved issues in the case; (2) the information cannot be obtained from alternative sources; and (3) a compelling interest exists for requiring disclosure of the information. The results of this kind of balancing test would be different depending on the facts of the particular case.
The same test applies in criminal and civil cases and whether or not you are a party to the lawsuit. As a practical matter, courts may be particularly inclined to order disclosure when the person trying to protect information is a party to the lawsuit in question or when a criminal defendant seeks information to mount a defense.
For more detailed information about the Florida shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Florida.
The Florida common law (i.e., judge-made law) may protect you from having to disclose information even if the shield law does not. Unlike in some other states, where shield laws eliminated common law protections for newsgatherers, the Florida shield law explicitly preserves common law protections. Additionally, the Florida Supreme Court has continued to recognize a common law privilege after enactment of the shield law.
Florida courts have not indicated specifically who is protected by the common law privilege for newsgatherers. There are at least some indications that the common law will protect people that the shield law does not. For instance, while the shield does not protect book authors, a Florida court has held that the common law privilege covers them. Florida v. Trepal, 24 Media L. Rep. 2595, 2596 (Fla. Cir. Ct. 1996). It is not clear how this precedent would translate into an online or amateur-journalism context.
The common law privilege applies to the identity of sources and information collected in the course of newsgathering, and it applies whether or not you promise confidentiality to a source. Like the shield law, the common law privilege does not apply to eyewitness observations or physical evidence of a crime.
The Florida common law privilege is a qualified privilege. If the you and your information fit within its scope, then a court will only order you to disclose information on if it finds: (i) the information is relevant and significant to unresolved issues in the case; (ii) the information cannot be obtained from other sources; and (iii) a compelling interest exists for requiring disclosure. The results of this kind of balancing test would be different depending on the facts of the particular case. Courts may be particularly inclined to order disclosure when the person trying to protect information is a party to the lawsuit in question or when a criminal defendant seeks information to mount a defense.
Federal courts in the Eleventh Circuit, which encompasses Florida, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. It applies to the identity of sources and unpublished information collected or prepared during newsgathering.
Unfortunately, courts in the Eleventh Circuit have not had many opportunities to define the scope of the privilege, so it is hard to say whether an amateur or non-traditional journalist could take advantage of it. When it applies, however, the privilege is qualified, meaning that a court must establish three things before ordering disclosure: (a) the information is highly relevant; (b) it is necessary to the proper presentation of the case; and (c) it is unavailable from other sources. Courts applying this test often also tend to weigh the public interest in disclosure of the information against the public interest in promoting a an uninhibited press. The results of this kind of balancing test would be different depending on the facts of the particular case.
For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 11th Circuit.
The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.
Note: This page covers information specific to Georgia. See the section on Protecting Sources and Source Material for more general information.
Georgia has a shield law that protects the identity of sources and unpublished information collected or prepared in the newsgathering process, such as notes and outtakes. The shield law creates a qualified privilege that may be overcome in certain circumstances, and it does not apply when you are a party to a lawsuit. The language of the shield law suggests that it may not apply to electronic media and online publishing, but the law is uncertain on this point.
In addition, federal courts in the Eleventh Circuit, which encompasses Georgia, recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. However, the scope of this privilege is uncertain.
The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.
There is no common law protection for sources or source material in Georgia.
Georgia's shield law, located at Ga. Code § 24-9-30, states in relevant part:
Any person . . . engaged in the gathering and dissemination of news for the public through a newspaper, book, magazine, or radio or television broadcast shall have a qualified privilege against disclosure of any information, document, or item obtained or prepared in the gathering or dissemination of news in any proceeding where the one asserting the privilege is not a party, unless it is shown that this privilege has been waived or that what is sought: (1) [i]s material and relevant; (2) [c]annot be reasonably obtained by alternative means; and (3) [i]s necessary to the proper preparation or presentation of the case of a party seeking the information, document, or item.
The Georgia shield law covers people engaging in "the gathering and dissemination of news for the public." Significantly, however, its coverage is limited to those disseminating news through a "newspaper, book, magazine, or radio or television broadcast." The language of the statute therefore seems to limit protection to traditional forms of media. That said, the CMLP is not aware of any Georgia cases interpreting this language in an online context, and it is possible that a court could construe this language to include websites and other online platforms for publishing information and commentary. See, e.g., O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006) (interpreting similar statutory language in California shield law as covering online news website). The argument might be even stronger with respect to electronic analogs of the media listed, such as e-zines, web radio, podcasts, or videocasts.
Georgia's shield law is broad -- it covers "any information, document, or item obtained or prepared in the gathering or dissemination of news." It extends to the identity of a source, information that would lead to the identity of a source, and unpublished information collected or prepared in the course of newsgathering. The protection applies whether or not you promise a source confidentiality, and whether or not you share the identity of the source with a limited number of third parties. Publishing information eliminates protection for the information actually published, but it does not eliminate protection for non-published information gathered in preparing the published news.
The shield law provides a qualified privilege, which means that a court may force you to reveal information under certain circumstances. In order to compel disclosure of information that otherwise would be protected by the shield, a court or other legal body must find that three conditions are met: (1) the information is "material" (i.e., significant) and relevant to the case in question; (2) the information cannot be reasonably obtained by alternative means; and (3) the information is necessary to the proper preparation or presentation of the case of the party seeking the information.
The same test applies in criminal and civil cases. As a practical matter, however, courts may be particularly inclined to order disclosure when a criminal defendant seeks information to mount a defense.
The shield law does not protect you at all when you are a party to a lawsuit (for example, when you are suing or being sued, or when you are charged with a crime).
For more detailed information about the Georgia shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Georgia.
Federal courts in the Eleventh Circuit, which encompasses Georgia, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. It applies to the identity of sources and unpublished information collected or prepared during newsgathering.
Unfortunately, courts in the Eleventh Circuit have not had many opportunities to define the scope of the privilege, so it is hard to say whether an amateur or non-traditional journalist could take advantage of it. When it applies, however, the privilege is qualified, meaning that a court must establish three things before ordering disclosure: (a) the information is highly relevant; (b) it is necessary to the proper presentation of the case; and (c) it is unavailable from other sources. Courts applying this test often also tend to weigh the public interest in disclosure of the information against the public interest in promoting a an uninhibited press. The results of this kind of balancing test would be different depending on the facts of the particular case.
For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 11th Circuit.
The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.
Note: This page covers information specific to Illinois. See the section on Protecting Sources and Source Material for more general information.
Illinois has a shield law that may protect your sources and newsgathering materials. Whether the shield law covers you depends on whether the law deems you a "reporter," and on the medium in which you work. If the shield applies to you, it can protect both the identity of your sources and unpublished information collected during newsgathering. The shield law creates a qualified privilege -- in certain circumstances, a court may order you to disclose information even if you are covered by the statute.
Historically, federal courts in the Seventh Circuit, which encompasses Illinois, recognized a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. However, a recent case casts serious doubt on the continued validity of a federal reporter's privilege in Illinois.
The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.
There is no common law protection for sources or source material in Illinois.
Illinois's shield law, located at 75 Ill. Comp. Stat. 5/8-901 to 8-909, states in relevant part:
Sec. 8‑901. Source of information.
No court may compel any person to disclose the source of any information obtained by a reporter except as provided in [the other provisions of the shield law].
Sec. 8‑902. Definitions.
(a) "Reporter" means any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full‑time or part‑time basis . . . .
(b) "News medium" means any newspaper or other periodical issued at regular intervals whether in print or electronic format and having a general circulation; a news service whether in print or electronic format; a radio station; a television station; a television network; a community antenna television service; and any person or corporation engaged in the making of news reels or other motion picture news for public showing.
(c) "Source" means the person or means from or through which the news or information was obtained.
Sec. 8‑907. Court's findings.
An order [requiring the disclosure of protected information] shall be granted only if the court . . . finds . . . that all other available sources of information have been exhausted and, either, disclosure of the information sought is essential to the protection of the public interest involved or, in libel or slander cases, the plaintiff's need for disclosure of the information sought outweighs the public interest in protecting the confidentiality of sources of information . . . .
To be protected by the Illinois reporter shield, you must meet two conditions: First, you must fit within the law's definition of "reporter." Second, the medium in which you publish must meet the law's definition of a "news medium."
Reporter: The statute defines a "reporter" as "any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full‑time or part‑time basis." The key term here is "regularly," so you may not be covered if your activities are sporadic or occasional. Illinois courts have not ruled on whether the statute covers amateur or hobbyist newsgatherers, but the language of the statute (terms like "business" and "full-time or part-time") indicates that it might not.
News medium: The law defines "news medium" to include electronic media in addition to traditional forms of news publication. However, Illinois courts have not had the opportunity to clarify the definition of "news medium" as it applies to non-traditional journalists and other online publishers, and several questions remain unanswered. For example, the definition includes electronic periodicals and electronic news services, but it is unclear whether a blog or message board would fit into those categories. Additionally, the definition includes people making "news reels and other motion picture news," but it is hard to say whether this includes documentary films, video-blogs, and other forms of online video production. It is also unclear whether the definition includes internet radio, internet television, and podcasts.
Illinois's shield law protects the "sources" of information. The law defines a "source" as "the person or means from or through which the news or information was obtained." The law applies to both human sources and documentary sources, including information obtained in the newsgathering process, whether confidential or non-confidential (i.e., information not obtained in return for a promise of confidentiality). In People v. Slover, 753 N.E.2d 554, 558 (Ill. App. Ct. 2001), an Illinois court held that a reporter's unpublished photograph depicting police performing a search was a protected "source" within the meaning of the statute. You do not need to promise a human source confidentiality in order to take advantage of the shield's protection.
The Illinois shield law provides a qualified privilege, which means that a court may force you to reveal information in some circumstances. In order to compel disclosure of information that otherwise would be protected by the shield, a court or other legal body must find that "all other available sources of information have been exhausted" and that "disclosure of the information sought is essential to the protection of the public interest involved." The results of this kind of balancing test would be different depending on the facts of the particular case.
This standard applies in both civil and criminal cases, although a slightly different standard applies in civil defamation actions. As a practical matter, courts may be particularly inclined to order disclosure when the person trying to protect information is a party to the lawsuit in question, or when a criminal defendant seeks information to mount a defense. One Illinois court has held that the shield does not apply to non-confidential information sought by a criminal defendant.
For more detailed information about the Illinois shield law, see the Reporter's Committee for Freedom of the Press's Privilege Compendium: Illinois.
Until recently, it appeared that federal courts in the Seventh Circuit, which encompasses Illinois, recognized a qualified privilege based on the First Amendment to the U.S. Constitution. The courts recognizing this privilege applied it to both the identity of confidential sources and unpublished information (whether confidential or nonconfidential) collected during newsgathering. Before ordering disclosure of covered information, the courts applied a balancing test considering the media's interests in protecting the information, the relevance of the material sought, and whether the source was confidential.
A significant recent case, McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), casts serious doubt on the continued validity of the reporter's privilege in the Seventh Circuit. Unfortunately, the decision was written in an enigmatic style that makes it difficult to know for sure whether future attempts to invoke the federal reporter's privilege are foreclosed in Illinois.
For additional information on the federal reporter's privilege in the Seventh Circuit before the McKevitt case, see the Reporter's Committee for Freedom of the Press's Privilege Compendium: 7th Circuit.
The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.
Note: This page covers information specific to Indiana. See the section on Protecting Sources and Source Material for more general information.
Indiana has a shield law that may protect you from having to reveal the identity of your sources. However, the scope of the shield law is quite narrow: it applies only to sources, not documents and information collected during newsgathering, and it appears to cover only a small class of professional journalists working in traditional media. If the shield law applies to you, it provides an absolute privilege -- a court may not legally order you to reveal the identity of your source(s).
The Indiana Supreme Court has ruled that neither the U.S. Constitution nor the Indiana Constitution creates a reporter's privilege when a reporter is subpoenaed for information in a criminal case. A previous Indiana case had ruled that a qualified "reporter's privilege" applied in civil cases, but the continued validity of this case is now in question.
Historically, federal courts in the Seventh Circuit, which encompasses Indiana, recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. However, a recent case casts serious doubt on the continued validity of a federal reporter's privilege in Indiana.
The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.
Indiana does not recognize any common law privilege for newsgatherers.
Indiana's shield law, located at Ind. Code § 34-46-1, -2, states:
The Indiana shield law only covers employees and owners of newspapers, periodicals, recognized press associations, and wire services, and owners, officials, and employees of licensed radio and television stations. The statute imposes an additional requirement that the person invoking the shield receive income in connection with his or her news-related activities. These limitations appear to exclude from the shield's coverage amateur journalists and professional journalists working in media others than the traditional forms listed in the statute. That said, the CMLP is not aware of any Indiana cases interpreting this language in an online context, and it is possible that a court could construe this language to include websites and other online platforms for publishing information and commentary. See, e.g., O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006) (interpreting similar statutory language in California shield law as covering online news website). For audio and video content creators, the statutory language limiting protection to an employee, official, or owner of "a licensed radio or television station" may constitute a significant barrier to coverage. The "income" requirement would create a significant barrier for all kinds of amateur journalists and other online publishers who do not make money from their activities.
Indiana's shield law protects only the identity of a source. This protection applies whether information from the source is published or unpublished. The law is not clear on whether you must promise confidentiality to a source in order to obtain the protection of the shield law.
When the shield law covers you, its protection is absolute. In such a situation, a court or other legal body cannot force you to reveal the identity of your source. The shield applies equally in both civil and criminal cases, and at least one Indiana court has applied the shield when the person invoking the shield was a party to the lawsuit. See Jamerson v. Anderson Newspapers, Inc., 469 N.E.2d 1243 (Ind. App. 1984) (applying the shield to a reporter sued for libel).
For more detailed information about the Indiana shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Indiana.
Indiana's shield law is not the only possible source of protection for your sources and newsgathering material. Courts in some states have interpreted the First Amendment to the U.S. Constitution and similar clauses in their state constitutions as creating a qualified privilege for reporters. The Indiana Supreme Court has ruled, however, that neither the U.S. Constitution nor the Indiana Constitution creates a reporter's privilege when a reporter is subpoenaed for information in a criminal case. In re WTHR-TV, 693 N.E.2d 1 (Ind. 1998). A previous Indiana case had ruled that a qualified reporter's privilege based on the First Amendment to the U.S. Constitution applied in a civil case when unpublished source material was sought from a non-party reporter. In re Stearns, 489 N.E.2d 146, 149-51 (Ind. Ct. App. 1986). The court held that the person seeking source material had to establish three elements in order to overcome the privilege:
In light of the WTHR-TV case, however, the continued validity of the Stearns case, and the continued existence of a federal reporter's privilege in Indiana state courts, is in doubt. Therefore, at least in Indiana state court, you may not want to put much reliance on a constitutional reporter's privilege for sources or source material.
Until recently, it appeared that federal courts in the Seventh Circuit, which encompasses Indiana, recognized a qualified privilege based on the First Amendment to the U.S. Constitution. The courts recognizing this privilege applied it to both the identity of confidential sources and unpublished information (whether confidential or non-confidential) collected or prepared during newsgathering. Before ordering disclosure of covered information, the courts applied a balancing test considering the media's interests in protecting the information, the relevance of the material sought, and whether the source was confidential.
A significant recent case, McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), casts serious doubt on the continued validity of the federal reporter's privilege in the Seventh Circuit. Unfortunately, the decision was written in an enigmatic style that makes it difficult to know for sure whether future attempts to invoke the federal reporter's privilege are foreclosed in Illinois. Therefore, you cannot rely on their being a constitutional reporter's privilege for your sources or source material in Indiana federal courts.
For additional information on the federal reporter's privilege in the Seventh Circuit before the McKevitt case, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 7th Circuit.
The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.
Note: This page covers information specific to Massachusetts. See the section on Protecting Sources and Source Material for more general information.
Massachusetts does not have a shield law. The state legislature recently considered enacting a shield law, but failed to do so.
You may be able to protect your sources and unpublished information obtained in the course of newsgathering under Massachusetts "common law." "Common law" is judge-made law. Because common law is developed on a case-by-case basis by courts, rather than through legislative pronouncement of general rules, it often suffers from gaps, ambiguities, and uncertainties. This is the case with Massachusetts's common law privilege for reporters, which is not well defined.
In addition, federal courts in the First Circuit, which encompasses Massachusetts, recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution that protects the identity of sources and (potentially) unpublished information collected or prepared during newsgathering. However, the scope of this privilege is uncertain, and its protection depends on the circumstances of your particular case. Massachusetts state courts do not recognize any protections for reporters based on the U.S. Constitution or the Massachusetts Constitution.
The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.
Massachusetts courts recognize a common law privilege for reporters. It applies to sources and unpublished information. Its exact character and scope are uncertain, as is its application to online publishing and non-traditional journalism.
Massachusetts courts have not defined who exactly is covered by the common law reporter's privilege. However, a federal court interpreting Massachusetts law held that an investment analyst who wrote a report for his job was covered by the common law privilege for reporters even though he was not a part of the "organized press." Summit Technology, Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992). However, this decision has no weight as precedent (i.e., it is not legally binding) in Massachusetts state courts. That means that future courts that reach the same issue could rule differently. Moreover, it is unclear how this case would apply in other cases, such as when the person seeking to protect information is an amateur or hobbyist. Nevertheless, it provides support for the argument that people outside the traditional news media are covered by the Massachusetts common law privilege as long as they are gathering information with an intent to disseminate it to the public.
The common law privilege protects unpublished information gathered or prepared in the course of newsgathering and the identity of sources. The law gives more protection to confidential information (i.e., information received in exchange for a promise of confidentiality) than non-confidential information.
The common law privilege is qualified, meaning that courts sometimes will order you to disclose information, even if you and your information qualify for protection. Courts in Massachusetts do not apply any set formula in determining whether information should be disclosed or not. Instead, they balance the "interests" of the newsgatherer and the party who wants the information. The results of this kind of balancing test would be different depending on the facts of the particular case.
The same test applies in criminal and civil cases and whether or not you are a party to the lawsuit. As a practical matter, however, courts may be particularly inclined to order disclosure when you are a party to the lawsuit in question or when a criminal defendant seeks information to mount a defense. The protection is especially weak if someone sues you for defamation.
For more detailed information about Massachusetts's common law privilege, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Massachusetts.
Federal courts in the First Circuit, which encompasses Massachusetts, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. It applies to the identity of sources and (potentially) to unpublished information collected or prepared during newsgathering.
Federal courts in the First Circuit have extended the reporter's privilege to people other than traditional journalists, including research analysts and academics. In an important case, the First Circuit Court of Appeals stated that
[T]he medium an individual uses to provide his investigative reporting to the public does not make a dispositive difference in the degree of protection accorded to his work. . . . [T]he courts will make a measure of protection available to him as long as he intended "at the inception of the newsgathering process" to use the fruits of his research "to disseminate information to the public."
Cusumano v. Microsoft Corp., 162 F.3d 708, 714 (1st Cir. 1998). The court's statement indicates that the key factor in determining coverage is whether the person seeking protection collects information with the intent to spread it to the public. Many online publishers and non-traditional journalists could fit into this category.
The reporter's privilege protects the identity of your sources, as well as information that might lead to the identification of sources. You do not have to promise confidentiality to be covered by the privilege, but courts give greater protection when the source is confidential. In some circumstances, the reporter's privilege may also protect unpublished information obtained or prepared in the course of newsgathering.
The federal reporter's privilege is qualified. That means that, even if you are protected by the privilege, a court or other legal body may order disclosure of the information in question upon a sufficient showing of need by the party seeking the information. As part of this protection, a court may require the party seeking information from a reporter to try to get the information elsewhere first.
The reporter's privilege applies in civil and criminal cases, but the privilege is weaker in criminal cases. It is also available when you are a party to the lawsuit in question (i.e., you are suing someone or being sued), but the privilege is also weaker in these circumstances, and successful assertion of the privilege may make it difficult for you to make out your case.
For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 1st Circuit.
The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.