The news media performs a valuable service to society by providing information on issues of public importance. To perform this service effectively, journalists often rely on confidential sources. Reporter shield laws aim to facilitate the news gathering process by excusing journalists from disclosing confidential sources or information obtained from these sources. All but one of the states has passed a reporter shield law, as has the District of Columbia, but the federal government has not passed a reporter shield law despite several attempts. (The California law is somewhat limited because courts have interpreted it to provide only immunity from a finding of contempt, rather than a privilege.)
The US Supreme Court has ruled that state legislatures have substantial authority to define this privilege, as long as their laws do not violate the First Amendment of the Constitution. A reporter shield may be absolute or qualified, and it may cover sources, information, or both. A shield may cover executive and legislative proceedings in addition to judicial proceedings. Even if the privilege is absolute, constitutional rights that conflict with the shield law can overcome its protections in some cases. These may include the Sixth Amendment right to a fair trial for a criminal defendant.
Defining a Journalist
State laws often provide a specific definition of a journalist who can claim the reporter shield privilege. The definition may exclude certain types of media, or it may limit the shield to certain types of activities, such as reporting, writing, and editing. In some states, the journalist must report on the news for payment, which means that individual bloggers, students, and other unpaid writers might be excluded.
Overcoming the Privilege Under a Reporter Shield Law
In some situations, the reporter shield privilege is considered waived. This may occur when the journalist previously released the information or the identity of the source, such that it is no longer confidential. Sometimes disclosing a portion of the confidential information may waive the privilege regarding the information. The privilege also may be waived if the reporter and the source did not establish that their relationship or the information gained from it would be confidential.
Otherwise, a journalist usually will be required to reveal privileged information only if it is relevant and material and if it cannot be discovered from another source. These elements are roughly based on the dissent by Justice Potter Stewart in the Supreme Court decision of Branzburg v. Hayes. Some states provide more specific exceptions, such as defamation cases in which the information sought will produce relevant evidence involving whether the defendant acted with actual malice. Regardless of the context, though, proving that there is no other way to obtain the information is usually necessary to pierce the reporter shield.
Alternatives to Reporter Shield Laws
If a reporter shield law does not apply to a certain situation, a journalist may have other ways to keep a source or information confidential. Courts often have recognized that people can refuse to testify if the interests of society in keeping certain information confidential outweigh the benefits of disclosing the information in a proceeding. State courts sometimes have drawn at least a qualified privilege from state constitutions or the common law, which may apply even if information is not confidential. Rules of court procedure also may provide specific protections when journalists are asked to testify. More broadly, state rules of evidence may allow a reporter to defeat a request for a subpoena without relying on a reporter shield law.
Criticisms of Reporter Shield Laws
Members of the media have claimed that legislatures restrict the freedom of the press under the First Amendment by defining the reporter shield privilege through a statute. At the other extreme, observers less sympathetic to the media believe that special privileges should not apply to its work.