WikiLeaks Controversy Could Impact Newsgathering

The recent disclosure of reams of classified diplomatic cables by WikiLeaks has sparked outrage among leaders on both sides of the aisle in Washington, outrage that may negatively impact the gathering and dissemination of the news.  There are already indications that Congress could take steps to sanction the publication of certain classified information, moving beyond the current regime in which the confidential source, if exposed, faces the greatest legal exposure.

The website WikiLeaks was founded in 2006 by Julian Assange, and its purpose is to publish documents obtained from anonymous sources.  Since its founding, the website has disclosed publicly a range of classified or otherwise unavailable documents, including documents relating to the U.S. detention facilities at Guantanamo Bay, the war in Iraq, and the war in Afghanistan, Sarah Palin, and climate change. WikiLeaks has won a variety of awards, including from the Economist and Amnesty International.

WikiLeaks took center stage internationally last week when it exposed hundreds of thousands of pages of classified U.S. diplomatic cables.  The leak opened for all to see U.S. diplomatic strategy with respect to a host of regions, countries, and issues.  Because of attacks on WikiLeaks' website, the disclosure was accomplished by providing the documents to prominent international media outlets, including the Guardian and the New York Times.  The two newspapers maintain archives of stories and summaries relating to the leaks here and here, respectively.  Secretary of State Hillary Clinton denounced the disclosure:

This disclosure is not just an attack on America's foreign policy; it is an attack on the international community, the alliances and partnerships, the conventions and negotiations that safeguard global security and advance economic prosperity.

Rep. Peter King of New York called for WikiLeaks to be designated as a terrorist organization.

The response by U.S. officials and politicians has not stopped with words.  The WikiLeaks website has been subjected to repeated hacks and other attacks.  The United States and other governments, such as France, have put pressure on the companies hosting WikiLeaks' servers to take them down, and they otherwise have attempted to make WikiLeaks difficult to access.  In particular, U.S. Senator Joe Lieberman, chair of the Homeland Security Committee, pressured Amazon to pull WikiLeaks from its servers, and earlier this week it did so.  Just today, the U.S. federal government blocked access to WikiLeaks for federal workers.

These moves have sparked intense debate, with the Electronic Frontier Foundation and other free speech organizations criticizing the U.S response to the leak as censorship akin to the pressure put by the Chinese government on Google.  As these organizations point out, government interference with access to websites containing leaked classified documents may be tantamount to a prior restraint and thus may violate the First Amendment principles articulated in the Pentagon Papers case, which involved a high-profile leak of classified documents concerning the Vietnam War.  In the digital age, is a government-led effort to take information it does not want to be public off the servers hosting that information substantively different from government seeking a court order barring the print publication of that same information?  The WikiLeaks controversy may put that distinction, if one can be made, to the test.

Senator Lieberman has also proposed amending the federal Espionage Act "by making it illegal to publish the names of human intelligence informants (HUMINT) to the United States military and intelligence community."  Criminalizing the publication of information is of course a change in kind from the criminalization of a governmental official's improper disclosure of classified information in his or her possession.  Doing so would represent an encroachment upon the traditional principle that absent truly extraordinary circumstances, if otherwise confidential information is received by a news organization, its publication cannot be prevented or sanctioned.

Finally, the WikiLeaks controversy is also likely to lead to renewed efforts to discover the identity of confidential sources who leak classified information.  This may well complicate the long-running efforts to pass a federal shield law in Congress, which we have reported upon previously.

High-profile leaks of classified information put our commitment to a free press to the ultimate test.  We will continue to monitor the various ways in which this most recent instance might affect the gathering and publication of the news going forward.


North Carolina Superior Court Holds State Shield Law Protects Identities of Newspaper Website Commenters

On July 27, 2010, N.C. Superior Court Judge Calvin E. Murphy ruled from the bench that North Carolina’s shield law, N.C. Gen. Stat. § 8-53.11, protects a newspaper from the compelled disclosure during judicial proceedings of the identities of anonymous commenters to the newspaper’s website. Judge Murphy signed the written order in the case on August 16, and it is available here. To our knowledge, this is the first case in which a North Carolina court has ruled that the state's shield law applies to the identities of anonymous website commenters, although other states have been grappling with the issue with respect to their own state shield laws.

The case stems from the criminal proceedings in Gaston County, N.C., against Michael Mead, who has been charged with murder. Mead’s attorney issued a subpoena to the publisher of the Gaston Gazette, at first requesting identifying information related to a particular website poster (“justicen2010”), but then later also requesting a copy of the Gaston Gazette’s contract with the provider of its website comment forum. (More information on the case is available from the Gazette’s website).

The Gazette challenged the subpoena and raised the state shield law as a protection against compelled disclosure. Judge Murphy agreed with the Gazette’s position, holding that the information sought by the defendant—both the website commenters’ identities and the business contract with the comment forum provider—were confidential information related to the newspaper’s and publisher’s newsgathering and news publishing activities and were obtained while the publisher was acting as a “journalist,” as defined in N.C. Gen. Stat. § 8-53.11(a)(1). (Note: The information at issue in this case was confidential, but North Carolina’s shield law protects both confidential and non-confidential information.) Thus, the judge held that the shield law applied to the facts at hand.

Further applying the statute, Judge Murphy held that the defendant failed to overcome the qualified privilege set forth in N.C. Gen. Stat. § 8-53.11 by demonstrating clearly and specifically that the information and documents sought (1) were relevant and material to the proper administration of the legal proceeding at issue, (2) could not be obtained from alternative sources, and (3) were essential to the maintenance of a claim or defense. In the absence of this showing by the defendant, Judge Murphy quashed the subpoena.

With this ruling, the North Carolina Superior Court now joins other state courts that have held their respective state shield laws protect anonymous website commentary from compelled disclosure in judicial proceedings.

Federal Shield Law Clears Senate Panel

After weeks of debate, the Senate Judiciary Committee today amended and passed the proposed federal shield law on to the full Senate for consideration.  Even with this important step, it is unclear when the full Senate will vote on the measure or how quickly the Senate version can be reconciled with the House version.

In an important victory for the media, the Senate Judiciary bill reportedly adopts a broad definition of "journalist" -- one that, at this stage, includes bloggers and other journalists with non-traditional media organizations.  This aspect of the bill was the focus of much debate, with politicians from all sides pushing for a narrower definition.  During the Committee's debate, one of the key opponents of the broader formulation was California Democrat Dianne Feinstein.  For a webcast of the Committee's markup session, click here.

The final text of the bill that passed is not yet available, but as we reported in November, it is expected that the bill will provide for different burdens of proof in criminal and civil cases, with the journalist having to show by clear and convincing evidence that disclosure would harm the public interest in criminal cases, and the party seeking disclosure having to show that disclosure would be in the public interest in civil cases.  The bill also reportedly retains a national security exception that would require disclosure if the sought-after information "would materially assist the Government in preventing, mitigating, or identifying the perpetrator of an act of terrorism or other significant and articulable harm to national security."

We will post full details of the actual Senate Judiciary bill once it becomes available.  In the meantime, the Media Law Resource Center has a good collection of the various bills.

Judiciary Committee to Consider Compromise Federal Shield Bill

The Senate Judiciary Committee is slated this week to take up compromise language on the Free Flow of Information Act of 2009 (S. 448), endorsed by Attorney General Eric Holder, which may finally result in passage of a federal shield law.

As we previously reported, federal shield bills were again introduced in Congress this year, after many years of frustrating defeals. Although a shield bill passed in the House, the bill unexpectedly hit a snag in the Senate. To the surpise of many observers, the Obama administration objected to the bill on the grounds that it gave insufficient latitude to the executive branch to issue newsroom subpoenas seeking information relating to matters of national security.

The proposed shield bill languished during the summer and early fall, its fate uncertain. Two weeks ago, however, Senate sponsers Chuck Shumer and Arlen Specter announced that a deal had been struck with the Obama administration.  Last week, Attorney General Holder's office released a letter publicly supporting the revised language.  Significantly, this letter represented the first Presidential administration to publicly support a federal shield law.

The compromise departs from the bill as originally introduced in several ways.  First, the definition  of a covered "journalist" is broadened to include unpaid bloggers as well as paid employees of media organizations.  However, the bill expressly excepts from that definition anyone who is reasonably believed to be using the shield to protect an act of terrorism.  

The compromise also differentiates the burden of proof required in criminal and civil cases, with the journalist having to show by clear and convincing evidence that disclosure would harm the public interest in criminal cases, and the party seeking disclosure having to show that disclosure would be in the public interest in civil cases. 

The compromise language retains a national security exception, albeit narrower than the Obama administration had initially suggested.  The exception reflected in the compromise language would require disclosure if the sought-after information “would materially assist the Government in preventing, mitigating, or identifying the perpetrator of an act of terrorism or other significant and articulable harm to national security.”

Media outlets and journalist organizations are urging members of the Senate Judiciary C\ommittee to report the bill favorably as revised so the legislative process may proceed in the Senate.  We will continue to monitor the progress of the proposed federal shield law.

Illinois Judge Orders Disclosure of Anonymous Commenters

In a case we first reported on in December, a judge in Madison County, Illinois ordered The Alton Telegraph newspaper to reveal the identity of two people who commented anonymously on the newspaper's web site.

A state prosecutor in Madison County had issued a subpeona to the Telegraph in October seeking the names of five people who had posted comments on a news story concerning a man who had been indicted for the murder of a five-year-old boy.  The prosecutor claimed that the five people may have information relevant to the investigation.  The paper sought to quash the subpoena, claiming primarily that the paper was protected by the state's shield statute because the commenters were "sources" as defined in by the law.

The judge, Richard L. Tognarelli, largely rejected the newspaper's "source" argument.  While acknowledging that no Illinois appellate court had decided the issue, Judge Tognarelli said that in this case:

[I]t is clear that the "reporter" did not use any information from the bloggers in researching, investigating, or writing the article.  In fact, none of the comments were written until after the article was published.  Comments were then made between various bloggers, between themselves, without comment, input or discussion from the reporter.  It would not appear that the bloggers were "sources" for the Telegraph news article.

The judge emphasized that the shield law ought not apply "to those individuals who voluntarily post information in a forum designed to elicit citizen's opinions in response to a newspaper article." (emphasis in original).

Finally, Judge Tognarelli held that even if the shield law applied, the state had met its burden, at least as to two of the commenters, of showing that the sources sought were "relevant" and that the state had "exhausted 'all other available sources of information.'"  In particular, a detective who testified at the hearing on the motion to quash said that the state had interviewed more than 117 people and did not have the time or money to re-interview all of them to ascertain if they were one of the commenters.

Two of  the five commenters identified in the original subpoena were found to have information that might be relevant, based on what they had said online.  The remaining three did not appear to have relevant information, the judge said, and so the motion to quash was granted as to them.

While courts across the country have been increasingly willing to quash subpoenas seeking the identities of anonymous commenters in civil cases, there is far less case law concerning criminal matters.  In March, we reported on the decision by a third-party company hosting a newspaper's comments section to comply with a request from prosecutors for the identiy of anonymous commenters who might have information relevant to a criminal investigation.

No decision has been made by the newspaper on whether to appeal the judge's ruling.

Texas Governor Signs Shield Law

As we reported last week, both chambers of the Texas legislature unanimously passed a shield law giving journalists qualified protection from disclosure of their sources and other confidential and non-confidential unpublished information collected as part of their newsgathering activities.  On Thursday, Governor Perry signed the Texas Free Flow of Information Act, H.B. 670, making it law in Texas.  The shield statute became effective immediately, and its enactment makes Texas the 37th state to pass some form of protection for journalists from state-court subpoenas.

Free press and journalist advocacy groups praised the move.   The Executive Director of The Reporters Committee for Freedom of the Press stated that “[p]opular wisdom had it that Texas would never pass a shield law.  It is remarkable that the Texas media, local prosecutors, state legislators and statewide elected officials agreed upon an innovative bill that will ensure information flows to the people of Texas."

Governor Perry issued a statement in which he praised the legislature's efforts in crafting the shield law, describing it as "a complex issue that required thoughtful consideration."  Governor Perry continued, "I am pleased that lawmakers were able to strike a balance between protecting the rights of the people and the press."

One feature of the Texas statute that distinguishes it from some other shield laws is that it treats civil and criminal proceedings differently.  We discussed the privilege in civil proceedings in a prior post.  In criminal proceedings, a party seeking the identity of a confidential source may overcome the privilege if that party makes a clear and specific showing that:

  • the journalist observed the source committing a felony and the party seeking the source's identity has exhausted all other alternative sources for the information;
  • the source confessed a felony to the journalist and the party seeking the source's identity has exhausted all other alternative sources for the information;
  • there is probable cause to believe that the source committed a felony and the party seeking the source's identity has exhausted all other alternative sources for the information; or
  • disclosure of the course is reasonably necessary to stop or prevent reasonably certain death or bodily harm.

In criminal proceedings, when the party that issued the subpoena seeks unpublished information gathered by a journalist (as opposed to a confidentiail source of such information), in order to overcome the privilege the party must make a clear and specific showing that:

  1. all reasonable efforts have been exhausted to obtain the information from alternative sources; and
  2. the unpublished information, document, or item:
  • is relevant and material to the proper administration of the official proceeding for which the testimony, production, or disclosure is sought and is essential to the maintenance of a claim or defense of the person seeking the testimony, production, or disclosure; or
  • is central to the investigation or prosecution of a criminal case and based on something other than the assertion of the person requesting the subpoena, reasonable grounds exist to believe that a crime has occurred.

When considering an order to compel the disclosure of such information, the court should consider the following factors:

  1. the subpoena is overbroad, unreasonable, or oppressive;
  2. reasonable and timely notice was given of the demand for the information, document, or item;
  3. in this instance, the interest of the party subpoenaing the information outweighs the public interest in gathering and dissemination of news, including the concerns of the journalist; and
  4. the subpoena or compulsory process is being used to obtain peripheral, nonessential, or speculative information.

Shield Law Sent to Texas Governor's Desk

Texas is on the cusp of parting company with the minority of jurisdictions that offer no statutory protection to journalists who receive subpoenas.  As we have discussed in a previous post, most states have enacted laws that create a least a qualified privilege for journalists from being compelled to disclose source information.  Some "shield" statutes, as they are often called, protect both confidential and non-confidential information, whereas others protect only confidential information or confidential sources.  Some give absolute protection from disclosure, others qualified protection.  The Reporters Committee for Freedom of the Press has an excellent database to compare the text of shield statutes in different states.

The Texas Free Flow of Information Act, HB 670, passed both chambers of the Texas legislature unanimously.  On May 4, it went to Governor Rick Perry's desk for his signature, which must be given within 10 days.  According to the Associated Press, Governor Perry "has not taken a firm position on the latest version of the bill," and it remains to be seen whether he will sign the bill into law, veto it, or allow it to become law without his signature.

HB 670 follows the structure of many shield statutes.  The text of the bill can be viewed here.  It protects both non-confidential and confidential information (including the source of such information) a person obtains while acting as a "journalist," which is defined as:

a person, including a parent, subsidiary, division, or affiliate of a person, who for a substantial portion of the person's livelihood or for substantial financial gain, gathers, compiles, prepares, collects, photographs, records, writes, edits, reports, investigates, processes, or publishes news or information that is disseminated by a news medium or communication service provider.

Both "news medium" and "communication service provider" are defined broadly, and journalist is defined specifically to include editors and academics.  The shield bill protects only "unpublished" information.

In civil proceedings, the privilege can be overcome if the party seeking disclosure establishes, with "a clear and specific showing" that:

  1. all reasonable efforts have been exhausted to obtain the information from alternative sources;
  2. the subpoena is not overbroad, unreasonable, or oppressive and, when appropriate, will be limited to the verification of published information and the surrounding circumstances relating to the accuracy of the published information;
  3. reasonable and timely notice was given of the demand for the information, document, or item;
  4. in this instance, the interest of the party subpoenaing the information outweighs the public interest in gathering and dissemination of news, including the concerns of the journalist;
  5. the subpoena or compulsory process is not being used to obtain peripheral, nonessential, or speculative information; and
  6. the information, document, or item is relevant and material to the proper administration of the official proceeding for which the testimony, production, or disclosure is sought and is essential to the maintenance of a claim or defense of the person seeking the testimony, production, or disclosure.

We discuss the privilege in criminal proceedings here.

We will watch closely to see whether HB 670 becomes law in Texas.  If it does, it will reduce the number of states lacking any form of statutory protection for subpoenaed reporters to 13.

Federal Shield Bill Introduced Again in Congress

After a number of years in which proposed federal shield statutes have stalled in Congress, news media interests are optimistic that this time will be the charm.  Last week bills were introduced in both the House of Representatives and the Senate that would create a qualified privilege for journalists subject to federal subpoenas akin to the protections journalists currently have under many state shield statutes.

Dubbed the "Free Flow of Information Act of 2009," Senators Specter, Shumer, Lugar, and Graham introduced S. 448 last Friday.  The bill mirrors H.R. 985, which was also introduced in the House last week.  The House bill provides that:

In any matter arising under Federal law, a Federal entity may not compel a covered person to provide testimony or produce any document related to information obtained or created by such covered person as part of engaging in journalism, unless a court determines by a preponderance of the evidence, after providing notice and an opportunity to be heard to such covered person [that certain enumerated provisions have been met].

The House bill provides that the party seeking material from a journalist may overcome the privilege by demonstrating that: (1) alternative avenues to obtain the information have been exhausted; (2) the information sought is critical to the investigation or proceeding; (3) the public interest favors disclosure of the information; and (4) if the information would reveal the identity of a source of information, disclosure is necessary to prevent an act of terrorism, to prevent imminent bodily harm, to identify a person who has disclosed a trade secret or other confidential information, or to identify a person who has disclosed classified information that may harm national security.  The House bill also contains exceptions for journalists who are eyewitnesses to or who commit a crime.

The Senate bill is comparable, as were the bills introduced in the last session of Congress.  In connection with introducing S. 448, Senator Shumer issued the following statement: 

A truly free press is the lifeblood of our democracy.  This compromise bill takes a reasonable and balanced approach to keeping us free and safe.  We have worked closely together to craft a careful bill that protects both the freedom of the press and the safety of our citizens.  In a free and democratic country, we should be able to do both – and this bill does.

The change in Presidential administrations has given The Reporters Committee for the Freedom of the Press and other organizations that have advocated for a federal shield law cause for optimism.  President Bush and his Justice Department opposed prior federal shield bills, and President Bush threatened to veto such a bill if it passed Congress.  In contrast, both President Obama and Attorney General Holder have voiced their support for a federal shield law.  We will follow closely the progress of the Free Flow of Information Act of 2009 as it wends its way through Congress.

Wins and Losses in Effort to Expand Shield Protections

The invaluable Media Law Resource Center recently released a report detailing state efforts to pass shield laws in the past three years.

According to the report, because of the high-profile contempt arrests of reporters James Taricani in 2004 and Judith Miller in 2005, legislative support for the reporter's privilege gained significant momentum.  As a result, five states -- Hawaii, Maine, Utah, Washington, and Connecticut -- passed shield statutes, bringing the total nationally to 36 states plus the District of Columbia.

Three other states, however, attempted to pass shield statutes in the past two years and failed.  In Kansas, Senate Bill 313 was introduced in the 2007 session with bipartisan support from the Senate minority and majority leaders.  Despite this support, however, the bill did not make it out of the Judiciary Committee in 2007 or 2008, and it now appears to be dead.

In Missouri, bills were introduced in 2005 and again in 2007 that would have provided a qualified reporter's privilege.  In 2007, the bill passed the House and was approved 7-1 by the Senate Judiciary Committee by was never voted on by the full Senate because of threats of a filibuster from key Senators.  A final attempt in 2008 to pass a version of the bill never received a vote by the House.

Finally, in Texas, the Free Flow of Information Act was passed by the Senate in 2007 and sent to the House for consideration.  The bill made it out of the House Judiciary Committee and onto the floor for debate, but was immediately killed on procedural grounds.

Given the uncertain extent of the First Amendment's protection for reporters who find themselves served with a subpoena (which we discussed in a previous post), it is critical that reporters and editors know what protection, if any, state law offers.  For those engaged in newsgathering in states without shield statutes, these times call for you to redouble your efforts to make the case for why, as a public policy matter, your state should enact a statutory privilege against the compelled disclosure of sources and source materials.

Courts Grapple With Anonymous Web Site Posters as "Sources"

In a previous post, we discussed the protections afforded to journalists by state shield statutes.  These statutes, which some 35 states have passed, protect reporters from being forced to identify their sources and disclose other source materials except under certain, limited circumstances.  In that post, we mentioned that one of the unanswered questions in most states is how these shield statutes will be interpreted in a world of bloggers and other "new media" journalists.

In recent months we have seen the first in what will likely be a series of decisions involving efforts by third parties (either law enforcement officials or civil litigants) to force newspapers to reveal the identity of anonymous commenters on their web sites.  The key question in these cases is whether a commenter to a newspaper web site is a "source" as defined in the statute.

The first case arose in Montana and involved The Billings Gazette newspaper.  A local politician who had filed a defamation lawsuit against his political opponent sought the identity of an anonymous commenter on the newspaper's web site, apparently in the belief that the commenter was in fact his opponent.  The paper argued that online comments to posted stories are a "core service and integral part" of the newspaper's business because they "foster[] democratic discourse through communities of users."  In an oral ruling from the bench, the judge in Montana quashed the subpoena, holding that the state's shield statute protected anonymous commenters as "confidential sources."

Just a few weeks later in Oregon, another plaintiff subpoenaed The Portland Mercury and the Willamette Week newspapers for the IP address of an anonymous commenter who, the plaintiff claimed, had defamed him in a comment on the newspapers' web sites.  The judge in this case took a different approach.  Rather than calling the commenter a "source," the judge held that the IP address was "information" as defined by the Oregon Revised Statutes, and that the shield statute protects "any unpublished information obtained or prepared by the person in the course of gathering, receiving or processing information for any medium of communication to the public."

Soon after that decision was issued, in an almost identical case, a court in Florida quashed a subpoena issued to the Northwest Florida Daily News.  The court held that Florida's shield statute applied to Internet commenters as "sources."

The final case, which is still pending, is different from the others in that it involves a criminal matter.  In this case, the state's attorney in Madison County, Illinois issued a subpoena to The Alton Telegraph, seeking the IP addresses of five anonymous commenters on the newspaper's web site.  Law enforcement officials contend the commenters to an online story about a murder investigation might have information relevant to the criminal prosecution.  The paper sought to quash the subpoena, arguing that the posters were "sources" under the Illinois shield statute, and that the state had not made the required showing to overcome the privilege.  In response, the state has argued that because the commenters never actually spoke to a reporter with the newspaper, and because the information they posted was not used in an actual story, they were not "sources" under the shield statute.  The court has not yet issued a ruling on the newspaper's motion to quash.

These cases represent just the first skirmishes in what will likely be a battle in every state with a shield statute to better define how these laws interact with the new face of journalism.  Just as courts have had to grapple with the question of who is a "journalist" in a world of bloggers, they will now have to decide what a "source" is.  As traditional newspapers continue to focus their efforts on building a viable Internet presence, their ability to protect the identity of the members of the community who contribute to that presence will be vital.

Know Your State's Shield Law

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:

  1. Is relevant and material to the proper administration of the legal proceeding for which the testimony or production is sought;
  2. Cannot be obtained from alternate sources; and
  3. 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.

Proposed Federal Shield Law Remains Stalled in Congress

The U.S. Supreme Court case of Branzburg v. Hayes offers reporters limited constitutional protection from subpoenas compelling the disclosure of confidential sources or other source material.  The limitations of Branzburg and the lack of a federal shield law to complement state statutes first came into public consciousness in 2004 with the well-publicized Valerie Plame case. The effort to compel testimony from various Washington reporters about their contacts with White House officials was just one in what some perceived as a marked increase in the number of subpoenas served on journalists.

In response, a federal shield law—called the Free Flow of Information Act— was introduced in Congress in 2005. That act, like many state shield statutes, provides a qualified privilege for reporters that can only be overcome if the federal entity seeking disclosure can show that (1) there is no other reasonable way to get the sought-after information; (2) the information is “essential” to the case; (3) that nondisclosure of the information would be contrary to the public interest, taking into account both the public interest in compelling disclosure and the public interest in gathering news and maintaining the free flow of information; and (4) that:

(A) disclosure of the identity of such a source is necessary to prevent imminent and actual harm to national security with the objective to prevent such harm;
(B) disclosure of the identity of such a source is necessary to prevent imminent death or significant bodily harm with the objective to prevent such death or harm, respectively; or
(C) disclosure of the identity of such a source is necessary to identify a person who has disclosed:
(i) a trade secret of significant value in violation of a State or Federal law;
(ii) individually identifiable health information . . . in violation of Federal law; or
(iii) nonpublic personal information . . . of any consumer in violation of Federal law.

The act also requires that the compelled disclosure be narrowly tailored and as limited as possible.

The Free Flow of Information Act passed the House in October 2007 but a slightly different version of has been stalled in the Senate ever since. Despite overwhelming support in the House and the Senate Judiciary Committee, it is unclear when, if ever, the Senate will move forward on the bill. It should also be noted that since the increase in federal subpoenas in 2003 and 2004, the number issued in 2005 and 2006 has decreased significantly. In 2006, for example, only three federal subpoenas were issued to reporters, as compared to nineteen in 2004.