You’ve been served with a subpoena by the local sheriff asking you to appear before a grand jury to reveal the name and address of one of the key sources in your recent story on illegal immigration. For obvious reasons, the source asked for confidentiality, a promise you’d like to keep.
What protections do you have?
Thirty-five states have what have become known as "shield laws" or "reporter's shield statutes," which offer varying degrees of protection to reporters from attempts by government officials and others to compel reporters’ testimony. For example, North Carolina has a shield law that follows the majority approach around the country by offering journalists a “qualified” privilege from disclosure of sources and source materials, a privilege that can be overcome if the opposing party makes a sufficient showing.
The key portion of the North Carolina statute reads:
A journalist has a qualified privilege against disclosure in any legal proceeding of any confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist.
For an invaluable compilation of shield laws around the country, go to the Reporters Committee for Freedom of the Press web site.
That one sentence, of course, raises a host of questions.
What is a journalist?
North Carolina's shield law defines a journalist as “[a]ny person, company, or entity, or the employees, independent contractors, or agents of that person, company, or entity, engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium.”
This is a rather broad definition, and courts have tended to read it that way. We do not, however, know the limits of this definition. Is a blogger who posts in his free time—the modern version of the lonely pamphleteer—a journalist under the North Carolina law? North Carolina's courts have not yet given guidance on this question. The answer in California, at least, may be “yes.” In O'Grady v. Superior Court, 139 Cal. App. 4th 1423 (Cal. Ct. App. 2006), the well-publicized case involving allegations by Apple Computer that a group of bloggers had misappropriated trade secrets, the court declined to wade into the question of what a journalist is, and held simply that California’s shield statute applied.
What is a news medium?
Under North Carolina's shield law, a “news medium” is “[a]ny entity regularly engaged in the business of publication or distribution of news via print, broadcast, or other electronic means accessible to the general public.” It is important to note that the law references "any entity,” not "any business.” This would seem at least to open the door to a non-commercial blogger or some other non-mainstream form of journalism.
When does it apply?
The privilege applies in “any legal proceeding”--both civil and criminal--and covers “any confidential or nonconfidential information, document, or item obtained or prepared while acting as a journalist.” The phrase “as a journalist” is key, however, because the law also makes clear that there is no privilege against disclosure when the journalist obtained the sought-after information because of his or her own eyewitness observation.
What does “qualified” mean?
Because the privilege afforded by North Carolina's statute is qualified rather than absolute, the privilege can be overcome by the party seeking the information. The journalist may be forced to testify or produce evidence if the party seeking disclosure can show that the evidence or testimony sought:
- Is relevant and material to the proper administration of the legal proceeding for which the testimony or production is sought;
- Cannot be obtained from alternate sources; and
- Is essential to the maintenance of a claim or defense of the person on whose behalf the testimony or production is sought.
In North Carolina, when a journalist asserts the reporter’s privilege, this three-part test tends to be the legal battleground. And, as one state court said, it is a “rare instance” in which a party seeking disclosure can meet the requirements. See, e.g., State v. Petersen, 2003 WL 22965551 (N.C. Super. June 30, 2003). Another North Carolina state court elaborated:
Both the statutory privilege and the common law privilege are intended to protect the free flow of information and avoid the impediment that occurs when reporters are subjected to in-court examination of their newsgathering activities. This intrusion is especially offensive when the same information could be derived from other sources.
Higgins v. Young, 2001 WL 1692379 (N.C. Super. Aug. 08, 2001).
A state shield statute is therefore a critical line of defense journalists can interpose in response to a civil, criminal, or grand jury subpoena. As soon as your newsroom receives a subpoena, it is imperative that you pass the subpoena along to your counsel so that he or she can determine whether the shield statute, if your state has one, applies.
As the court in Higgins v. Young indicated, however, state shield statutes do not represent the only form of protection reporters have--you may argue for protection by a constitutional privilege as well. In state-court proceedings in states with shield laws, those laws will likely provide your most robust protection from disclosure, but in states lacking shield laws and in federal proceedings the constitutional privilege may well be your only basis for opposing the subpoena. We have discussed the limitations of the constitutional privilege in a previous post.