Shield law
Encyclopedia
A shield law or reporters' privilege
is legislation designed to provide a news reporter with the right to refuse to testify as to information and/or sources of information obtained during the news gathering and dissemination process.
. Paul Branzburg was a reporter for The Courier-Journal in Louisville, Kentucky
and wrote an article about the drug hashish. In creating the article, he came in contact with two local citizens who had created and used the drug. Because their activity was illegal, Branzburg promised the two individuals that he would not reveal their identities. After the article was published, Branzburg was subpoenaed by a local grand jury and ordered to reveal the identity of his sources. Branzburg refused and cited the provisions for freedom of the press from the First Amendment of the Constitution, in his defense.
The case eventually reached the US Supreme Court
, where the court decided in a five to four decision that the press did not have a Constitutional right of protection from revealing confidential information in court. The court acknowledged, however, that the government must "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest."http://www.firstamendmentcenter.org/press/topic.aspx?topic=shield_laws While this ruling did not set a precedent for journalistic rights in court, it did define a more stringent set of requirements for when a journalist could be subpoenaed in court.
This ruling was limited in nature, did not set a clear federal precedent regarding journalistic privileges from revealing confidential information, and thus has been interpreted and cited differently by courts over the years. The Third Circuit Court of Appeals, for instance, has gleaned a qualified First Amendment privilege from the Branzburg decision. In Riley v. City of Chester, the Court held that a reporter's right to protect his sources from disclosure could be overcome by a party who, by a preponderance of the evidence, demonstrated that he has made an effort to obtain the information elsewhere, that the only access to the information sought is through the journalist and his or her source, and that the information sought is crucial to the case. 612 F.2d 708 (3rd Cir. 1979).http://altlaw.org/v1/cases/545663
Opponents argue that shield laws afford extra privileges to journalists and that no citizen should be able to ignore a court ordered subpoena. Opponents also cite problems with defining who is considered a journalist or news gatherer and who is not, and note that if journalists get special protection from the government, then they are getting special journalistic benefits from the government instead of acting in complete independence. Some opponents also argue that journalists are often forced to testify by federal courts only in cases where a federal shield law likely would not protect them anyway. Finally, the federal government likely has no constitutional right to enforce a shield law on state courts.
Many journalists, however, are subpoenaed to testify in criminal and civil cases for coverage of a variety of matters that do not involve questions of national security. See RonNell Andersen Jones, Avalanche or Undue Alarm? An Empirical Study of Subpoenas
Received by the News Media, 93 MINN. L. REV. 585, 639–40 (2008). In recent years, there have been bills for federal shield laws in the United States Congress; however, none of these bills have passed the Senate. A primary objection to recent efforts to pass a federal shield law has been concern about leaks of classified information, particularly given the modern potential of such leaks to be published globally on the Internet by non-traditional recipients, such as WikiLeaks, who might claim to be "journalists" under an unqualified shield law. See W. Cory Reiss, Crime That Plays: Shaping a Reporter's Shield to Cover National Security in an Insecure World, 44 WAKE FOREST L. REV. 641 (2009).
Sometimes, the press is not even immune from its sources, such as when the source wishes to remain anonymous and the journalist wishes to disclose it. Such was the case in Cohen v. Cowles Media Co.
(1991). The Supreme Court upheld that a source may have a right to confidentiality if an agreement was made with the reporter. Unfortunately, the bigger issue of source disclosure gets even more confusing, since the Cohen and Branzburg decisions could allow for the possibility of a journalist being subpoenaed by a court to disclose the name of a source, and being sued by a source under promissory estoppel laws for that disclosure. The current laws of the land, and the gray areas of forecasting potential consequences of publishing a story with confidential sources places the press in a very precarious situation. The current shield laws in some states give the press somewhat of an upper hand, however, since federal law does not recognize reportorial privilege in most cases, it is understandable how the press might feel muzzled.
The shield law privilege may also be waived by a reporter, as the New Jersey Supreme Court recently found in the case of In re Michael G. Venezia, 191 N.J. 259, 922 A.2d 1263 (2007). In that case, a New Jersey newspaper published an article containing defamatory statements about the plaintiff. The article attributed the statements to a source who was identified by name in the article; the source later denied making the defamatory statements. The plaintiff filed a defamation lawsuit against the newspaper, the reporter and the alleged source of the defamatory statements. When the plaintiff sought to question the newspaper reporter about the article, the reporter and his newspaper refused, claiming protection under New Jersey's shield law, N.J.S.A. 2A:84A-21, et seq. It was discovered, however, that the reporter had already given a statement under oath concerning the article—and, most important, the alleged source of the statement and exactly what that source said—to a local county prosecutor's office. The reporter also talked about his source and what the source said with a local municipal attorney. The Venezia court unanimously held that, while New Jersey has arguably the most protective shield law in the United States, a reporter waives the privilege when he talks about his sources and information outside of the newsgathering process, as did the reporter in Venezia. The Venezia court stated: "The privilege holder is not permitted to step from behind the shield as he pleases, sallying forth one moment to make a disclosure to one person and then to seek the shield's protection from having to repeat the same disclosure to another person. A reporter cannot play peek-a-boo with the privilege." Thus, the Venezia court ordered that the reporter must submit to the plaintiff's deposition request. Venezia is highly significant because it marks the first time that a reporter has ever been found to have waived the privilege under New Jersey's current shield law, and because it explores the issue of what is or is not a "newsgathering activity," and, thus, what activities are subject to protection under the law.
, in which reporters who released the name of Valerie Plame
were asked who their sources were. One of the reporters, Judith Miller
of The New York Times
, was jailed for 85 days in 2005 for refusing to disclose her source in the government probe.
, 40 states and the District of Columbia have shield laws.http://www.rcfp.org/privilege/
Reporters' Privilege
Reporters' privilege in the United States, is a "reporter's protection under constitutional or statutory law, from being compelled to testify about confidential information or sources"...
is legislation designed to provide a news reporter with the right to refuse to testify as to information and/or sources of information obtained during the news gathering and dissemination process.
Definition
A shield law is a law that gives reporters some means of protection against being forced to disclose confidential information or sources in state court. There is no federal shield law (although a limited one has been passed by the House and awaits a Senate vote as of July 2008), and state shield laws vary in scope. In general, however, a shield law aims to provide the classic protection of, "a reporter cannot be forced to reveal his or her source" law. Thus, a shield law provides a privilege to a reporter pursuant to which the reporter cannot be forced by subpoena or other court order to testify about information contained in a news story and/or the source of that information. Several shield laws additionally provide protection for the reporter even if the source and/or information is revealed during the dissemination of the news story, ie., whether or not the source or information is confidential. Depending on the jurisdiction, the privilege may be total or qualified, and it may also apply to other persons involved in the news-gathering and dissemination process as well, such as an editor or a publisher.Origins
The issue of whether or not journalists can be subpoenaed and forced to reveal confidential information arose in 1972 with the United States Supreme Court case Branzburg v. HayesBranzburg v. Hayes
Branzburg v. Hayes, 408 U.S. 665 , was a landmark United States Supreme Court decision invalidating the use of the First Amendment as a defense for reporters summoned to testify before a grand jury. The case was argued February 23, 1972 and decided June 29 of the same year. The reporter lost his...
. Paul Branzburg was a reporter for The Courier-Journal in Louisville, Kentucky
Louisville, Kentucky
Louisville is the largest city in the U.S. state of Kentucky, and the county seat of Jefferson County. Since 2003, the city's borders have been coterminous with those of the county because of a city-county merger. The city's population at the 2010 census was 741,096...
and wrote an article about the drug hashish. In creating the article, he came in contact with two local citizens who had created and used the drug. Because their activity was illegal, Branzburg promised the two individuals that he would not reveal their identities. After the article was published, Branzburg was subpoenaed by a local grand jury and ordered to reveal the identity of his sources. Branzburg refused and cited the provisions for freedom of the press from the First Amendment of the Constitution, in his defense.
The case eventually reached the US Supreme Court
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
, where the court decided in a five to four decision that the press did not have a Constitutional right of protection from revealing confidential information in court. The court acknowledged, however, that the government must "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest."http://www.firstamendmentcenter.org/press/topic.aspx?topic=shield_laws While this ruling did not set a precedent for journalistic rights in court, it did define a more stringent set of requirements for when a journalist could be subpoenaed in court.
This ruling was limited in nature, did not set a clear federal precedent regarding journalistic privileges from revealing confidential information, and thus has been interpreted and cited differently by courts over the years. The Third Circuit Court of Appeals, for instance, has gleaned a qualified First Amendment privilege from the Branzburg decision. In Riley v. City of Chester, the Court held that a reporter's right to protect his sources from disclosure could be overcome by a party who, by a preponderance of the evidence, demonstrated that he has made an effort to obtain the information elsewhere, that the only access to the information sought is through the journalist and his or her source, and that the information sought is crucial to the case. 612 F.2d 708 (3rd Cir. 1979).http://altlaw.org/v1/cases/545663
State laws
, 40 states and the District of Columbia offer shield law protections. There are ten states with no form of shield laws. These laws vary from state to state. Some protections apply to civil but not to criminal proceedings. Other laws protect journalists from revealing confidential sources, but not other information. While some state legislatures have adopted protections into state law, others such as New Hampshire rely on state court precedents.Current Issues
Some people believe that Congress should enact a federal shield law, or at least a federal standard pursuant to which the rights of journalists are clearly defined. The differences between states' laws has also raised questions regarding which laws apply where in regard to national reporting. Proponents of shield laws argue that they ensure that news gatherers may do their jobs to their fullest ability and that they help avoid a dichotomy between state laws and journalistic ethics. They also argue that a federal shield law should exist to eliminate contradictions between state laws.Opponents argue that shield laws afford extra privileges to journalists and that no citizen should be able to ignore a court ordered subpoena. Opponents also cite problems with defining who is considered a journalist or news gatherer and who is not, and note that if journalists get special protection from the government, then they are getting special journalistic benefits from the government instead of acting in complete independence. Some opponents also argue that journalists are often forced to testify by federal courts only in cases where a federal shield law likely would not protect them anyway. Finally, the federal government likely has no constitutional right to enforce a shield law on state courts.
Many journalists, however, are subpoenaed to testify in criminal and civil cases for coverage of a variety of matters that do not involve questions of national security. See RonNell Andersen Jones, Avalanche or Undue Alarm? An Empirical Study of Subpoenas
Received by the News Media, 93 MINN. L. REV. 585, 639–40 (2008). In recent years, there have been bills for federal shield laws in the United States Congress; however, none of these bills have passed the Senate. A primary objection to recent efforts to pass a federal shield law has been concern about leaks of classified information, particularly given the modern potential of such leaks to be published globally on the Internet by non-traditional recipients, such as WikiLeaks, who might claim to be "journalists" under an unqualified shield law. See W. Cory Reiss, Crime That Plays: Shaping a Reporter's Shield to Cover National Security in an Insecure World, 44 WAKE FOREST L. REV. 641 (2009).
Sometimes, the press is not even immune from its sources, such as when the source wishes to remain anonymous and the journalist wishes to disclose it. Such was the case in Cohen v. Cowles Media Co.
Cohen v. Cowles Media Co.
Cohen v. Cowles Media Co., 501 U.S. 663 , was a case in which the Supreme Court of the United States held that freedom of the press does not exempt journalists from generally applicable laws....
(1991). The Supreme Court upheld that a source may have a right to confidentiality if an agreement was made with the reporter. Unfortunately, the bigger issue of source disclosure gets even more confusing, since the Cohen and Branzburg decisions could allow for the possibility of a journalist being subpoenaed by a court to disclose the name of a source, and being sued by a source under promissory estoppel laws for that disclosure. The current laws of the land, and the gray areas of forecasting potential consequences of publishing a story with confidential sources places the press in a very precarious situation. The current shield laws in some states give the press somewhat of an upper hand, however, since federal law does not recognize reportorial privilege in most cases, it is understandable how the press might feel muzzled.
The shield law privilege may also be waived by a reporter, as the New Jersey Supreme Court recently found in the case of In re Michael G. Venezia, 191 N.J. 259, 922 A.2d 1263 (2007). In that case, a New Jersey newspaper published an article containing defamatory statements about the plaintiff. The article attributed the statements to a source who was identified by name in the article; the source later denied making the defamatory statements. The plaintiff filed a defamation lawsuit against the newspaper, the reporter and the alleged source of the defamatory statements. When the plaintiff sought to question the newspaper reporter about the article, the reporter and his newspaper refused, claiming protection under New Jersey's shield law, N.J.S.A. 2A:84A-21, et seq. It was discovered, however, that the reporter had already given a statement under oath concerning the article—and, most important, the alleged source of the statement and exactly what that source said—to a local county prosecutor's office. The reporter also talked about his source and what the source said with a local municipal attorney. The Venezia court unanimously held that, while New Jersey has arguably the most protective shield law in the United States, a reporter waives the privilege when he talks about his sources and information outside of the newsgathering process, as did the reporter in Venezia. The Venezia court stated: "The privilege holder is not permitted to step from behind the shield as he pleases, sallying forth one moment to make a disclosure to one person and then to seek the shield's protection from having to repeat the same disclosure to another person. A reporter cannot play peek-a-boo with the privilege." Thus, the Venezia court ordered that the reporter must submit to the plaintiff's deposition request. Venezia is highly significant because it marks the first time that a reporter has ever been found to have waived the privilege under New Jersey's current shield law, and because it explores the issue of what is or is not a "newsgathering activity," and, thus, what activities are subject to protection under the law.
Related Events
In recent years, a larger effort by journalists to press for federal shield laws formed following the Plame affair/CIA leak scandalPlame affair
The Plame Affair involved the identification of Valerie Plame Wilson as a covert Central Intelligence Agency officer. Mrs. Wilson's relationship with the CIA was formerly classified information...
, in which reporters who released the name of Valerie Plame
Valerie Plame
Valerie Elise Plame Wilson , known as Valerie Plame, Valerie E. Wilson, and Valerie Plame Wilson, is a former United States CIA Operations Officer and the author of a memoir detailing her career and the events leading up to her resignation from the CIA.-Early life :Valerie Elise Plame was born on...
were asked who their sources were. One of the reporters, Judith Miller
Judith Miller (journalist)
Judith Miller is a Pulitzer Prize-winning American journalist, formerly of the New York Times Washington bureau. Her coverage of Iraq's alleged Weapons of Mass Destruction program both before and after the 2003 invasion generated much controversy...
of The New York Times
The New York Times
The New York Times is an American daily newspaper founded and continuously published in New York City since 1851. The New York Times has won 106 Pulitzer Prizes, the most of any news organization...
, was jailed for 85 days in 2005 for refusing to disclose her source in the government probe.
Article
“Why Journalists Are Not above the Law,” Gabriel Schoenfeld talks about the Constitutional freedom of the press. She believes that journalists should not be exempt from national security laws. Journalists suggest that the main problem is the “American government threatens to prevent them from doing their work by depriving them of the right to rely on confidential sources of information.” If you tried to pick a side, the government or a journalist it would be hard, because a reporter should not be forced to reveal their sources. But on the other hand journalists should not be excused from the laws. Schoenfeld feels that journalists should not be able to report on national security issues, but that is extreme. Reporters tend to leak some information that is not needed by the public, however the government should be held accountable for their illegal behaviors. Reporters do have the shield law, which is designed for them to refuse the right to testify as to information received during news gathering. Although the shield law is a form of protection, reporters are not covered when it comes to national security.States with shield laws
In the United StatesUnited States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, 40 states and the District of Columbia have shield laws.http://www.rcfp.org/privilege/
- Alabama
- Alaska
- Arizona
- Arkansas
- California - California Shield LawCalifornia Shield LawThe California Shield Law provides legal protections to journalists seeking to maintain the confidentiality of an unnamed source or unpublished information obtained during newsgathering.-References:**Cal. Const. article 1 § 2*Cal. Evidence Code § 1070...
- Colorado
- Connecticut
- Delaware
- District of Columbia
- Florida
- Georgia
- Hawaii
- Illinois
- Indiana
- Kansas
- Kentucky
- Louisiana
- Maine
- Maryland
- Michigan
- Minnesota
- Montana
- Nebraska
- Nevada
- New Jersey
- New Mexico
- New York
- North Carolina
- North Dakota
- Ohio
- Oklahoma
- Oregon
- Pennsylvania
- Rhode Island
- South Carolina
- Tennessee
- Texas
- Utah
- Washington
- West Virginia
- Wisconsin
States without shield laws
- Idaho
- Iowa
- Massachusetts
- Mississippi
- Missouri
- New Hampshire
- South Dakota
- Vermont
- Virginia
- Wyoming
See also
- Free Flow of Information ActFree Flow of Information ActThe Free Flow of Information Act is a bill intended to provide a news reporter with the right to refuse to testify as to information or sources of information obtained during the newsgathering and dissemination process....
- In re MaddenIn re MaddenIn re Madden, 151 F.3d 125 , is a decision from the Third Circuit Court of Appeals that established the Madden test, a test used to determine whether an individual is a journalist with standing to claim journalist's privilege....
- Protection of sourcesProtection of sourcesThe protection of sources, sometimes also referred to as the confidentiality of sources or in the U.S. as the reporter's privilege, is a right accorded to journalists under the laws of many countries, as well as under international law...
- Privilege (evidence)Privilege (evidence)An evidentiary privilege is a rule of evidence that allows the holder of the privilege to refuse to provide evidence about a certain subject or to bar such evidence from being disclosed or used in a judicial or other proceeding....
- Reporters' PrivilegeReporters' PrivilegeReporters' privilege in the United States, is a "reporter's protection under constitutional or statutory law, from being compelled to testify about confidential information or sources"...
- Josh WolfJosh WolfJosh Wolf is a journalist and video blogger.Josh Wolf is also the name of:* Josh Wolf , comic appearing on season 4 of Last Comic Standing...
External links
- List of States
- Reporter's Shield Laws
- Legal Liability Issues for Online Speech
- http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=CASE&court=US&vol=408&page=665
- http://www.firstamendmentcenter.org/press/topic.aspx?topic=shield_laws
- http://www.firstamendmentcenter.org/PDF/fargo.pdf
- http://www.rcfp.org/shields_and_subpoenas.html
- WV shield law passed