Legal Protections for Sources and Source Material

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those who gather news from having to reveal the identity of their confidential sources and from having to disclose unpublished information collected in the course of newsgathering.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.

State Legislative Protections

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:

• What kind of information does the shield law protect? Some state shield laws only protect the identity of a confidential source, while others protect the identity of a source whether or not you have promised the source confidentiality. In other states, the law protects not only the identity of a source, but also unpublished information collected during newsgathering, such as information provided by a source, a reporter's unpublished notes, outtakes, and work product. Even among this group, there are some differences about exactly what information the shield law protects.


• Who is entitled to the protection of the shield law? Some state shield laws limit their application to individuals who have a professional affiliation with an established media entity or require “regular” employment as a journalist. Other states expressly exclude broadcast and electronic media from coverage. Yet others offer the privilege to a larger group of people who publish information, such as freelancers, authors, electronic publishers, and educators. This question is of critical importance to citizen media sites and online publishers of all kinds. One importance case, O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006), extended the coverage of California's shield law to online news sites, despite language in the shield law suggesting that only reporters publishing in traditional media were covered. See the California Protections for Sources and Source Material page for details. This area of law, while currently uncertain, is sure to develop significantly in coming years.


• Assuming the shield law applies, how strong is its protection? Some states provide those individuals covered by their shield laws with an "absolute" privilege against revealing sources and source material (or just sources, as the case may be). This means that a court or other legal body may not force that individual to reveal the information in question under any circumstances. In other states, shield laws give covered individuals only a "qualified" privilege against revealing sources and source material (again, the precise information covered depends on the state). While the exact standards vary state-to-state, courts applying a qualified privilege generally require that the individual seeking covered information demonstrate that (1) the desired information is central to mounting a claim or defense in a lawsuit; (2) other means of obtaining the information have proven to be inadequate; and (3) the balance of the parties' interests favors disclosure.

For a detailed examination of state shield laws, see the State Law: Legal Protections for Confidential Sources and Source Material section of this guide.

Federal Legislative Protection

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.

An 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.

• What kind of information is covered by the Privacy Protection Act?

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.

• Who is covered?

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.

• How strong is the protection?

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.

Constitutional Protections

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.

Common Law Privileges

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.