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of sources (whether promised confidentiality or not), information that might lead to the identity of sources, and unpublished information obtained or prepared in the course of newsgathering activities.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 The reporter's privilege applies to the identity of sources and unpublished information collected or prepared in newsgathering, whether confidential or not (although protection is stronger for confidential information).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.
Note: This page covers information specific to Michigan. See the section on Protecting Sources and Source Material for more general information.
Michigan has two shield law statutes that may protect your sources and source material, but only in limited circumstances. The Michigan shield laws apply only when you receive a subpoena as part of a grand jury proceeding or as part of a criminal investigation. But they offer you no protection in civil cases (whether you are a party to the case or not), or when a criminal defendant seeks information from you.
Federal courts in the Sixth Circuit Court of Appeals, which encompasses Michigan, recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution. However, the scope of this privilege is uncertain because courts in the Sixth Circuit have only addressed the reporter's privilege in two cases.
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.
Michigan's two shield laws apply when prosecutors seek information in criminal cases. The first shield law applies to grand jury proceedings. Grand jury proceedings occur when a prosecutor decides to charge someone with a crime. The prosecutor must ask the grand jury to indict the accused person before the person can be tried for the crime. In other words, grand juries decide preliminarily whether there is sufficient evidence for government to try the accused person. As part of this process, government prosecutors sometimes issue subpoenas to third parties (i.e., people not involved in the criminal case) who might have relevant information, including the press. The grand jury shield provides protection against these subpoenas.
The second Michigan shield law applies to subpoenas issued by prosecutors as part of a criminal investigation. The prosecutorial investigation shield may give you protection if you receive such a subpoena.
Michigan's shield laws do not apply when a criminal defendant seek information from you. They also do not apply in civil cases.
Michigan's grand jury shield can be found at MCL 767.5a. The state's prosecutorial investigation shield law can be found at MCL 767A.6(6).
Both laws cover "a reporter or other person who is involved in the gathering or preparation of news for broadcast or publication." Both laws protect "the identity of an informant, any unpublished information obtained from an informant, or any unpublished matter or documentation, in whatever manner recorded, relating to a communication with an informant."
The grand jury shield has this exception: it does not apply in "an inquiry for a crime punishable by imprisonment for life when it has been established that the information which is sought is essential to the purpose of the proceeding and that other available sources of the information have been exhausted."
The prosecutorial investigation shield has two exceptions: it does not cover published information, and it does not cover situations in which the newsgatherer is the subject of the investigation.
Both shield laws protect "a reporter or other person who is involved in the gathering or preparation of news for broadcast or publication." The shields appear to cover anyone who is involved in spreading "news" to the public, which should cover many online publishers and non-traditional journalists. However, Michigan courts have not had a chance to address the meaning of this statutory language and have not defined "news."
The second shield law, which covers investigations by prosecutors, excludes from coverage those who are the subject of a criminal investigation. Therefore, if you are the subject of a criminal investigation, you cannot rely on the prosecutorial investigation shield to refuse to disclose information.
Both shield laws protect three things. First, they protect the identity of "informants." Second, they protect any other unpublished information you have obtained from an "informant." Third, they protect any notes, recordings, and similar materials made in connection with your communications with an "informant." The shield laws do not define the term "informant," but it probably applies what is commonly called a "source." They do not distinguish between confidential and non-confidential information, as long as it is not published.
Remember, the shield laws only apply to investigations by prosecutors and grand jury proceedings. They do not protect you from inquiries by criminal defendants or parties in civil cases.
When the shields apply, they are, with one exception, "absolute." That means that if you and your information are protected by the shield, courts may never order you to reveal it.
The one exception is that the grand jury shield does not cover "an inquiry for a crime punishable by imprisonment for life when it has been established that the information which is sought is essential to the purpose of the proceeding and that other available sources of the information have been exhausted." In other words, to obtain your information in a grand jury proceeding, a prosecutor must show all of the following:
Note also that the prosecutorial investigation shield does not protect you when you are the subject of a criminal investigation.
For more detailed information about the Michigan shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: Michigan.
Federal courts in the Sixth Circuit, which encompasses Michigan, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. To date, courts have applied it to the identity of confidential sources only.
The scope of the federal reporter's privilege is uncertain in federal court in Michigan. Some lower federal courts in the Sixth Circuit have applied the privilege to individuals outside the traditional press, such as writers of a non-profit organization's newsletter and a freelance writer. These cases do not have weight as precedent, so it is uncertain whether other courts would follow them.
The Sixth Circuit Court of Appeals has held that the reporter's privilege protects the identity of confidential sources. The Court of Appeals and lower courts have not yet decided whether the privilege protects other information or non-confidential sources.
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 strong showing of need by the party seeking the information.
Federal courts in the Sixth Circuit have not determined whether the reporter's privilege applies in cases where a criminal defendant or prosecutor in a criminal case is seeking information from a reporter. It does not apply when a grand jury issues a subpoena requesting information.
For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 6th 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 New Jersey. See the section on Protecting Sources and Source Material for more general information.
New Jersey has a shield law that may protect your sources and newsgathering materials. When information is sought in connection with a civil case, the shield law provides "absolute" protection, meaning that it cannot be overcome. When information is sought in connection with a criminal case, the shield law provides a qualified privilege, meaning that a court sometimes may order you to disclose information even if you are covered by the statute.
In addition, federal courts in the Third Circuit, which encompasses New Jersey, recognize a qualified "reporter's privilege" based on the First Amendment to the U.S. Constitution and the common law. This privilege protects the identity of sources and unpublished information obtained or prepared in the newsgathering process, such as notes and outtakes. The strength of the privilege's protection depends on the circumstances of your particular case. New Jersey state courts do not recognize any protections for reporters based on the U.S. Constitution, the New Jersey Constitution, or the common law.
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.
New Jersey's shield law, located at N.J. Stat. §§ 2A:84A-21 to 21.8, states in relevant part:
N.J. Stat. § 2A:84A-21
[A] person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated has a privilege to refuse to disclose, in any legal or quasilegal proceeding or before any investigative body, including, but not limited to, any court, grand jury, petit jury, administrative agency, the Legislature or legislative committee, or elsewhere
a. The source, author, means, agency or person from or through whom any information was procured, obtained, supplied, furnished, gathered, transmitted, compiled, edited, disseminated, or delivered; and
b. Any news or information obtained in the course of pursuing his professional activities whether or not it is disseminated.
N.J. Stat. § 2A:84A-21a
a. "News media" means newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public.
b. "News" means any written, oral or pictorial information gathered, procured, transmitted, compiled, edited or disseminated by, or on behalf of any person engaged in, engaged on, connected with or employed by a news media and so procured or obtained while suchrequired relationship is in effect.
. . .
h. "In the course of pursuing his professional activities" means any situation, including a social gathering, in which a reporter obtains information for the purpose of disseminating it to the public, but does not include any situation in which a reporter intentionally conceals from the source the fact that he is a reporter, and does not include any situation in which a reporter is an eyewitness to, or participant in, any act involving physical violence or property damage.
New Jersey's shield law uses a complicated series of definitions to describe who the law protects. Despite the complexity, a reasonable reading suggests that the law will protect most people who bring news to the public regularly, including amateur and non-traditional journalists publishing through online media.
First, to be covered, you must be a "person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered. . . ." You may perform a variety of different roles. You need not be a writer -- any role in "gathering, producing, transmitting, compiling, editing, or disseminating" is sufficient for protection. You need not be a paid employee of a news source to be covered. However, you must somehow be "connected with" the "news media." Therefore, whether you are protected hinges on what "news media" means. That definition is discussed below.
What does "news media" mean? The law defines it to mean "newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public." Importantly, "news media" is not limited to the institutional press or "mainstream media" -- as long as you have the requisite relationship with one of the mediums it lists, you are covered. The definition of "news media" encompasses a wide variety of media. Since it covers electronic sources that are similar to the traditional sources it lists, it should cover periodicals online, Web radio, regular podcasts, and the like. It may cover blogs, since they are analogous to electronic newspapers or magazines. However, the law may not cover electronic media that are not analogous to the traditional sources listed, such as bulletin boards and non-updated Web pages. Future cases will hopefully clarify the shield law's application to online publishing and non-traditional journalism.
New Jersey's shield law protects both the identity of your sources and unpublished information you gather in the process of obtaining news.
Identity of sources
The shield law protects not only the identity of a source, but also any information that would lead to identification. You do not have to promise a source confidentiality in order to protect his/her identity under the shield. Publishing some information provided by a source does not eliminate the law's protection of the source's identity.
Unpublished information
The shield law protects, with certain exceptions, information gathered for purposes of dissemination to the public. Publishing a story only eliminates protection for the information that is actually published. The shield law excludes from coverage your first-hand eyewitness accounts or your participation in physical violence or property damage.
The law protects information collected "in the course of pursuing [your] professional activities." The phrase "in the course of pursuing...professional activities" might seem to limit the law's protection to professional employees, but the law defines it considerably more broadly. It means "any situation, including a social gathering, in which a reporter obtains information for the purpose of disseminating it to the public." Thus, as mentioned above, the key is whether you obtain information for the purpose of disseminating it to the public.
The strength of the shield depends on the type of case:
Civil: When information is sought in connection with a civil case, the shield is "absolute." If a party in a civil case issues a subpoena demanding the identity of your source or unpublished information, you cannot be held in contempt for refusing to reveal that information. The absolute protection applies when you are a party to a civil case (e.g., you are suing or being sued), but asserting it could make it more difficult to make out your case.
Criminal When information is sought in connection with a criminal case, the shield is qualified -- courts sometimes may order you to disclose information even if you and the information are protected by the shield. Prosecutors generally cannot overcome the shield -- if a prosecutor seeks protected information from you, you ordinarily will not be forced to reveal information if you are covered by the shield law (above). On the other hand, criminal defendants can overcome the shield, if they can prove the following things to the court:
For more detailed information about the New Jersey shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: New Jersey.
Federal courts in the Third Circuit, which encompasses New Jersey, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution and the common law. It applies to the identity of sources, information that would lead to a source's identification, and unpublished materials collected or prepared during newsgathering.
Who is Covered?
To obtain the protection of the reporter's privilege, you must demonstrate that
Many online publishers and non-traditional journalists should be able to establish these three requirements. The "investigative reporting" requirement might present an obstacle for some, but in that case you wouldn't have any documents or sources to protect. It is hard to imagine a situation where you would have gathered sources and other information that would not fit the term "investigative reporting."
What Information is Protected?
Federal courts in the Third Circuit apply the reporter's privilege to the identity of sources, information leading to identification of a source, and unpublished information collected or prepared during newsgathering. While the source or information need not be confidential in order to receive protection, the qualified privilege is stronger when confidential information is at stake.
How Strong is the Protection?
The reporter's privilege is qualified, which means that courts may order you to disclose information if the requesting person's need for the information outweighs the policies favoring a privilege. To determine whether ordering disclosure is appropriate in a given situation, the courts apply a balancing test considering the media's interests in protecting the information, the relevance of the material sought, and whether the source was confidential. The results of this kind of balancing test would be different depending on the facts of the particular case.
The courts are more inclined to order you to reveal information when it is sought in connection with a criminal case rather than in a civil case. They also are more likely to order you to reveal information when you are a party to the case in question.
For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 3rd 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 New York. See the section on Protecting Sources and Source Material for more general information.
New York has a shield law that may protect your sources and newsgathering materials. However, it covers only a narrow category of people. In general, it can only protect you if you make money based on newsgathering for a traditional media source. If you qualify for its protection, you must be careful not to disclose information you obtain to people who do not work for the same organization as you, or you may lose the shield's protection.
New York state courts recognize a qualified "reporter's privilege" based on the U.S. Constitution and the New York Constitution. The precise scope of these protections is uncertain. New York state courts do not recognize any common law privilege for newsgatherers.
Federal courts in the 2nd Circuit Court, which encompasses New York, recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution and the common law. The level of protection depends on whether you obtained the information in question in exchange for a promise of confidentiality.
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.
New York's shield law is located at N.Y. Civ. Rights Law § 79-h (link is to the entire code; you need to click on CVR, then choose Article and locate the specific provision). Because of the statute's complexity, we won't reproduce it here. Instead, we will explain its important aspects below.
New York's shield law covers only specific categories of people. In general, you must earn money in connection with work for a traditional news organization in order to be protected. Specifically, you must meet three conditions: (1) you must have the right kind of job; (2) you must work with what the law defines as "news"; and (3) you must work in one of the media listed by the statute. Meeting all three of these conditions likely will present a serious obstacle for many amateur and non-traditional journalists and other online publishers.
Each condition is detailed below.
Type of Job
To qualify for protection, you must either be a "professional journalist" or a "newscaster." "Professional journalist" is the term that relates to print media, while "newscasters" relate to television and radio. You must earn money in your role to qualify for either.
The law defines "professional journalist" to mean "one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news [for a print medium]." Moreover, you must "be someone [working with news] either as a regular employee or as one otherwise professionally affiliated for gain or livelihood." In essence, you must be an employee or freelance worker performing a reporting role for a print medium.
The law defines "newscaster" to mean someone who "for gain or livelihood, is engaged in analyzing, commenting on or broadcasting, news by radio or television transmission." In other words, you must earn money as a television or radio reporter.
News
To qualify for protection, you must work with "news." The law defines "news" to mean "written, oral, pictorial, photographic, or electronically recorded information or communication concerning local, national or worldwide events or other matters of public concern or public interest or affecting the public welfare." Some information, such as a profile of a person of no particular importance who has not been involved in a significant event of public importance, might not be included in this definition.
Medium
To be protected, you must work in one the media listed below:
The New York shield law protects the identity of sources and information collected in the course of newsgathering. You do not need to have spoken with the source or obtained the information in confidence to obtain protection, but the level of protection is higher if you did.
Disclosure of information has significant negative consequences for protection under the shield law. The impact depends on who discloses the information:
New York's shield law has two tiers of protection.
Tier One: If you promised your source confidentiality or obtained information in return for a promise of confidentiality, then the shield is absolute. In other words, courts may not order you to reveal it under any circumstances. The absolute protection applies equally whether the information is sought in a civil or criminal case. It applies even if you are a party to the case in which information is sought (e.g., you are suing or being sued).
Tier Two: If the information is not confidential, then the shield is qualified, which means that sometimes a court may order you to reveal the information. In order to order disclosure, courts must find all three of the following factors to be true:
These tests apply when information is sought in a civil case, in a criminal case, and when you are a party. As a practical matter, however, courts are more inclined to order you to reveal information if you are a party to the case. Courts also are more likely to order disclosure when the the party seeking the information is a criminal defendant.
For more detailed information about the New York shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: New York.
Even if the shield law does not apply to you, you may be able to protect your newsgathering information based on other legal protections. New York state courts recognize a qualified reporter's privilege based on the U.S. Constitution and the New York Constitution. It covers both confidential and non-confidential information. Beyond that, the exact scope of the protection is uncertain.
For additional details, see the Reporters Committee for Freedom of the Press's Privilege Compendium: New York.
Federal courts in the Second Circuit, which encompasses New York, have recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution and the common law. It applies to the identity of sources and unpublished information collected or prepared during newsgathering.
Exactly who is covered by the reporter's privilege is unclear. Some cases suggest, however, that you do not need to receive payment for your work or be affiliated with a mainstream news publication.
The reporter's privilege extends to the identity of sources and unpublished information obtained or prepared during newsgathering. It protects both confidential and non-confidential information, but confidential information gets more protection (below). If you witness a crime, the privilege does not protect your observations.
There are two tiers of protection, depending on whether the information is confidential or not. Both levels of protection are qualified, meaning that a court may order you to reveal information under some circumstances.
Tier One: If you obtained the information in confidence (i.e., in exchange for a promise of confidentiality), then it gets more protection. A court can order you to disclose the information only if it finds that each of the following is true:
Tier Two: If you did not obtain the information in confidence, then it gets less protection. A court can order you to reveal non-confidential information if it find that each of the following is true:
These tests apply when the information is sought in a civil case, in a a criminal case, and when you are a party. As a practical matter, however, courts are more inclined to order you to reveal information if you are a party to the case, and the protection is especially weak if someone sues you for defamation. In addition, courts are more likely to order you to disclose information if a criminal defendant is seeking the information in order to mount a defense.
For additional information, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 2nd 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 North Carolina. See the section on Protecting Sources and Source Material