State-by-state guide to the reporter's privilege for student media

Updated: Sep 21 2014

Reporter's privilege laws vary by state. Some laws provide broad protection, shielding both unpublished and published information as well as confidential and non-confidential sources and information. Others are less protective. While most states have not had occasion to consider whether their reporters privilege law is applicable to student journalists, those that have have generally not distinguished between student and commercial media in extending the privilege to cover student reporters.

The following state-by-state (including the District of Columbia) guide represents the Student Press Law Center's best guess regarding the applicability of reporter's privilege laws to student news media. For a more general discussion regarding the use of reporters privilege laws, be sure to read our Student Media Guide to Reporter's Privilege Law.

States

Alabama (SL, CRP)

Shield Law: ALA. CODE Section 12-21-142 (West, WESTLAW through End of 2002 Regular Session)

The shield law protects persons "engaged in, connected with or employed on" any newspaper, radio or television station from revealing their sources while engaged in newsgathering activities. There are currently no court cases in which the Alabama statute has been applied to student journalists. Nevertheless, the Alabama courts have interpreted the statute broadly and its language would seem to include student journalists. The law requires that the material sought to be shielded must be either published or broadcast before the protection comes into effect. The law does not specify whether the information (as opposed to the source of information) gathered by the reporter is also confidential. Neither does it specify whether a reporter must have promised his source confidentiality in order for the law to apply.

Alabama courts have also recognized a qualified reporter's privilege under the First Amendment to the United States Constitution.

Alaska (SL, CRP) 

Shield Law: ALASKA STAT. Sections 09.25.300-.390 (West, WESTLAW through 2002 Replacement Set)

Reporters "regularly engaged" in collecting or writing news for a "news organization" are protected from compelled disclosure under the Alaska shield law unless the nondisclosure would "result in a miscarriage of justice or the denial of a fair trial . . . or be contrary to the public interest." A news organization is defined as an individual or group that publishes a newspaper with a general readership at regular intervals or "broadcasts news to the public." Presumably, a publication that is distributed on and off school grounds could be said to have a general readership because non-school-related individuals would also read it. Accordingly, student media broadcasts that can be heard off school grounds should be considered as "broadcast to the public." However, the courts have not decided that a student publication only distributed on school grounds or a broadcast only heard on school property would fall outside the protection of the law. Furthermore, student journalists "regularly engaged" in the news gathering business would more likely be protected by the Alaska shield law if they write for the student media organization on a frequent basis. The Alaska law looks as if it should apply to many student journalists.

While there are no appellate decisions in Alaska recognizing a court-based reporter's privilege, Alaska trial courts have applied a qualified reporter's privilege based on the United States Constitution's First Amendment.

Arizona (SL, CRP) 

Shield Law: ARIZ. REV. STAT. ANN. Section 12-2237 (West, WESTLAW through legislation effective Feb. 7, 2003) ("The Arizona Shield Law"); ARIZ. REV. STAT. ANN. Section 12-2214 (West, WESTLAW through legislation effective April 7, 2003)("The Arizona Media Subpoenas Law")

The Arizona shield law codified Arizona's qualified First Amendment privilege. The law protects persons "engaged in newspaper, radio, television or reportorial work" or "employed by a newspaper, radio or television station" from having to reveal their sources for material obtained for publication or broadcast. Although the statute does not specify whether a reporter must promise his source confidentiality for the shield law's protections to be in effect, in Bartlett v. Superior Court, the Arizona Court of Appeals held that the shield law only protects confidential sources. 722 P.2d 346 (Ariz. Ct. App. 1986). According to the statute, information gathered by reporters may be subpoenaed if the subpoena is accompanied by an affidavit stating, among other things: 

  1. that the affiant has attempted to obtain each item of information from all other available sources, 
  2. the identity of those sources and 
  3. that the information is relevant and material to the cause of action or defense asserted by the affiant. 

The law goes on to state that a subpoena not accompanied by such an affidavit may be ignored. This shield law does not apply before a grand jury or magistrate during an investigative criminal proceeding. In Matera v. Superior Court, 825 P.2d 971, 973 (Ariz. Ct. App. 1992), the court of appeals further limited the law to reporters "engaged in the gathering and dissemination of news to the public on a regular basis" (emphasis added). Student journalists who frequently write for a student media organization would be afforded the greatest protection under this ruling. While there are currently no cases in which the Arizona law has been applied to student journalists, the statute's broad language regarding who is protected would indicate that the law would give student journalists the same protection afforded others.

Courts in Arizona have also recognized a qualified privilege under the First Amendment to the U.S. Constitution.

Arkansas (SL, CRP) 

Shield Law: CODE ANN. Title 16 Section 16-85-510 (West, WESTLAW through the 2002 Extraordinary Session)

Any "editor, reporter, or other writer for any newspaper, periodical, or radio station" is protected from revealing his or her sources unless the party seeking disclosure can show that the article was written in "bad faith, with malice, and not in the interest of the public welfare." However, information obtained from the source must be "written, published, or broadcast" to protect the identity of the source. The shield law does not specify whether the source must be promised confidentiality to be protected. In Saxton v. Arkansas Gazette Co., 569 S.W.2d 115 (Ark. 1978), the Arkansas Supreme Court held that the state's shield law applied to both civil and criminal proceedings. The Saxton court also stated that even where the bad faith/malice requirement is met the party seeking disclosure should also make a "reasonable effort" to obtain the information by alternative means. While the law itself does not specify whether information is also protected from disclosure, a federal district court ruled that the law applies only to sources and does not protect outtakes. Williams v. ABC, 96 F.R.D. 658 (W.D. Ark. 1983).

The shield law is not applicable in federal cases that only involve federal law. In re Grand Jury Subpoena ABC, 947 F. Supp. 1314 (E.D. Ark. 1996). In In re Grand Jury the court looked to the state's constitution (Art. 2, Sec. 6), instead of the shield law but held that it did not protect a news organization from turning over a video and transcripts to a federal grand jury. While the Arkansas Supreme Court has interpreted this constitutional provision to include a reporter's privilege for confidential sources, it does not seem to reach any further than that.

There are no cases in which the Arkansas statute has been interpreted with student journalists in mind. However, its broad language would seem to indicate that students are entitled to the same protection as other journalists.

Courts in Arkansas have also recognized a qualified privilege under the Arkansas state constitution (art. 2, sec. 6).

California (SL, CRP) 

Shield Law: CAL. EVID. CODE Section 1070 (West, WESTLAW through Ch. 3 of 2003-04 Reg. Sess. Urgency Legislation, Ch. 4 of 1st Ex. Sess. Urg. Legis., & Ch. 1 of 2nd Ex. Sess.); CAL. CONST. art. 1, section 2.

While the state's shield law only explicitly bars contempt sanctions, California courts have interpreted the law as giving non-party journalists and other persons connected with or employed by news organizations absolute protection to refuse both disclosure of sources and unpublished information in civil cases. However, in criminal cases the protection conveyed by the statute is limited by the Sixth Amendment, which can only be asserted by a criminal defendant when the information sought is essential to the defendant's fair trial. Miller v. Superior Court, 21 Cal. 4th 883, 901 (1999). When such a showing is made, the statute's privilege can be overcome where it is shown that the material sought to be protected is: 

  1. necessary, 
  2. relevant, 
  3. unavailable from less intrusive sources and
  4. in the case of subpoenas by criminal defendants, reasonably likely to result in exoneration of the defendant. Hammarley v. Superior Court, 153 Cal. Rptr. 608 (1979).

Further, the statue has been interpreted to protect both confidential and non-confidential information. Rosato v. Superior Court, 51 Cal. App. 3d 190 (1975), cert. denied, 427 U.S. 912 (1976). Published information, which is not explicitly protected by the statute, has received some protection from the courts. In Fost v. Superior Court, the court held that published information can only be successfully subpoenaed if the four-part test for unpublished information is met. 80 Cal. App. 4th 724 (2000). A similar protection has also been applied in libel actions, with the added requirement that the plaintiff must make a basic showing that the alleged libelous material is false. The court must then balance the need for the material against the need for confidentiality. Mitchell v. Marin County Superior Court, 690 P.2d 625 (Cal. 1984).

In addition to the statute-based privilege, the California Supreme Court has recognized a reporter's qualified privilege under both the First Amendment and the California Constitution (Art. I, Sec. 2). California courts have viewed the scope of this as nearly identical to the shield law. Therefore, most journalists relying on the reporter's privilege will cite to both the constitutional protection and the statutory privilege.

In April 2000, a Sacramento County Superior Court judge quashed a subpoena issued to the editor of the student newspaper at California State University at Sacramento. California v. Chavez, Case No. 99M11384 (Calif. Super. Ct. Sacramento Cty. April 7, 2000). After the editor took pictures of an arrest at a football game and published a photo of the arrest on the front page, the subject of the pictures subpoenaed the editor's negatives and unpublished photos. The judge quashed the subpoena because the defense attorney did not exhaust all possible alternative sources. The judge found that, because the subpoena was issued a week after the pictures were published and the only witness listed in the article was not contacted, the defense did not meet its burden. (See story, SPLC Report, Spring 2000). In addition to the ruling in this case, the broad language of the statute indicates that students are entitled to the same protections as other journalists.

Colorado (SL) 

Shield Law: COLO. REV. STAT. ANN. Sections 24-72.5-101 to 24-72.5-106 (West, WESTLAW through the end of the 2002 second regular and third extraordinary sessions of the 63rd General Assembly & S.C.R. 02-1, 02-2 and 02-6)

Colorado's press shield law protects "newspersons" who as part of a judicial proceeding refuse to disclose any "news information [they] received, observed, procured, processed, prepared, [wrote] or edited." The law defines newspersons as any member of the mass media who participates in the process of disseminating information to the public. While the Supreme Court of Colorado has not had the opportunity to further define a newsperson, in Henderson v. Colorado, 879 P.2d 383 (Colo. 1994), the court found that a helicopter pilot was "acting as a newsperson" when he flew policemen over a suspected illegal drug operation. The court said that the statute's definition of a newsperson is broad and the pilot, who was also employed by a television news station to observe the activity of the law enforcement officials, met the statute's requirement.

The information covered by the statute includes confidential and non-confidential information as well as sources and any information gathered in the news process. There are three explicit exceptions to the shield law's qualified privilege. The shield law's protections do not apply where: 

  1. the information was obtained from a press conference,
  2. the information has been published or broadcast or
  3. the reporter has witnessed a crime and substantially similar "information cannot be obtained by any other means."

In addition to the instances where a journalist cannot assert the shield law's privilege, a journalist may be legally required to divulge information if the party seeking the information can show that: 

  1. the information is directly relevant to the proceeding,
  2. it "cannot be obtained by any other means" and
  3. the interests of the party seeking the subpoena outweigh the journalist's interests. 

The shield law can only be waived by the newsperson.

Colorado courts have refused to find a qualified privilege in either their state constitution or in the First Amendment. Gagnon v. District Court In & For Cty. Of Fremont, 632 P.2d 567, 569 (Colo. 1981): Pankratz v. District Court In & For City & Cty. Of Denver, 609 P.2d 1101, 1103 (Colo. 1980).

The shield law's requirement that the information be disseminated to the "public" might be a concern for student media. However, at the very least, the shield law should protect student media publications and broadcasts that reach both off- and on-campus audiences. While there have been no reported decisions involving student media to date, Colorado students would appear to be in pretty good shape.

Connecticut (SL, CRP) 

Shield Law: Conn. Gen Stat § 52-146t

The shield law protects "any person who is or has been an employee, agent or independent contractor of the 'news media' and has been engaged in gathering, preparing or disseminating information to the public for such entity, or any other person supervising or assisting such person with gathering, preparing or disseminating information."

For the purposes of the Connecticut statute, the "news media" consists of "any newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite or other transmission system or carrier, or channel or programming service for such station, network, system or carrier, or audio or audiovisual production company that disseminates information to the public, whether by print, broadcast, photographic, mechanical, electronic or any other means or medium."

Journalists cannot be compelled to testify, produce or otherwise disclose "any information obtained or received, whether or not in confidence, by the news media in its capacity in gathering, receiving or processing information for potential communication to the public, or the identity of the source of any such information, or any information that would tend to identify the source of any such information... unless a court finds by clear and convincing evidence that 

  1. based on information obtained from sources other than the news media, there are reasonable grounds to believe that a crime has occurred or to sustain a cause of action, 
  2. the information or identity of the source is critical or necessary to the investigation or prosecution of a crime or to a defense of the crime or to the maintenance of a party's claim, defense or proof of a material issue, 
  3. the information or the identity of the source of such information is not obtainable from any alternative source and 
  4. there is an overriding public interest in the disclosure.

There are currently no court cases in which protection under the statute has been applied or denied to student journalists. However, the broad language of the statute protecting "agents" or "independent contractors" of news media, in addition to paid employees, suggests student journalists should be be covered.

Before enactment of the statute, the courts in Connecticut had recognized a qualified First Amendment privilege protecting confidential sources, although its applicability to students has not been tested. Connecticut Labor Relations Board v. Fagin, 370 A.2d 1095 (Conn. 1976).

District of Columbia (SL) 

Shield Law: D.C. CODE ANN. Section 16-4701-04 (LEXIS through D.C. Register, Vol. 50, No. 1, Jan. 10, 2003) ("Free Flow of Information Act")

The District of Columbia has one of the broadest shield law protections in the country. In Prentice v. McPhilemy, 27 Med. L. Rep. 2377, 2380 (D.C. 1999) the DC Superior Court found that a book author, who did not live in DC or collect the information for his book in DC, but nevertheless published it there, could avail himself of the DC statutory privilege. The court also said that the "free flow of information" act was not limited to just the "fast paced news media." The statute's protections extend to "any person who is or has been employed by the news media in a news gathering or news disseminating capacity." The court seemed less concerned with the author's employment and more focused on whether he was "in the pursuit of professional activities." Id. at 1283. While there are no reported court decisions involving student journalists, this broad view of the statute suggests that it is likely courts would extend the privilege to cover student journalists.

The DC privilege is an absolute protection for sources, whether confidential or not, from compelled disclosure. Unpublished news or information is protected unless: 

  1. the news or information is relevant to a significant legal issue, 
  2. it could not be obtained by alternative means and 
  3. an overriding public interest exists in disclosure.

Delaware (SL, CRP) 

Shield Law: DEL. CODE ANN. tit. 10, subchapter II, sections 4320-4326 (West, WESTLAW through Oct. 10, 2002 Executive Section)

Students may have trouble qualifying as reporters under Delaware's narrow shield law. Anyone who earns his or her "principal livelihood" by reporting or who spent three or four of the proceeding eight weeks working at least 20 hours per week "in the practice of, obtaining or preparing information for dissemination" meets the requirements of the statute.

Where they do qualify, reporters can be protected from disclosing both sources and information in all proceedings except those of a grand jury. However, a court can order public disclosure of material when it is in the public interest if it can be proven that the reporter's assertion of a need for non-disclosure is false.

While a reporter should cite to the shield law when refusing to testify or disclose information, the courts also recognize that a common law-based reporter's privilege exists in Delaware. See, e.g., Fuester v. Conrail, 22 Media Law Rptr. 2376 (1994).

Florida (SL, CRP) 

Shield Law: FLA. STAT. ANN. Section 90.5015 (West, WESTLAW through the End of 2002 Regular Session and 2002 Special 'E' Session)

The Florida shield law only covers professional journalists who are "salaried employees" "regularly engaged" in newsgathering for "gain or livelihood." The law may appear to provide little protection to student journalists. In a recent circuit court ruling, however, the University of Florida's student television station was not required to turn over the videotape of an interview subpoenaed by the Florida Bar Association. Florida Bar v. Smith, No. 2002 CA 4147 (Fla. Cir. Ct. Jan. 10, 2003). While the subpoena was issued to the news director, a full-time employee at the station and not to a student journalist, the judge's decision did mention that the "the videotape was obtained while gathering news." In actuality, the student reporters conducted the interview and not the news director. This should provide student journalists some hope if the court's decision does turn on the newsgathering function of reporters and not their salary.

There is another concern for the student media. The only news covered by the statute must be of "public concern relating to local, statewide, national or worldwide issues or events." News of a minor school event might not be of public concern or even considered local news under this law.

Where applicable, the shield law protects information as well as the source. It also specifically expands the law to cover both published and unpublished information as well as information already broadcast. The Florida courts have construed the law to extend to both confidential and non-confidential sources and information. State v. Davis, 720 So.2d 220, 222 (Fla. 1998).

The shield law does not protect "physical evidence, eyewitness observations or visual or audio recordings of crimes." However, only tangible evidence and observations of the actual crime are outside its scope. Other information that concerns the crime should be protected to the same extent as other information. News Journal Corp. v. Carson, 741 So.2d 572, 574-75 (Fla. 1999).

Florida also recognizes a qualified First Amendment privilege against compelled disclosure of a journalist's sources and information. A three-part test is applied to determine whether disclosure will be compelled. If the information is relevant, it cannot be obtained by alternative means and there is a compelling interest for the information, disclosure will be required. This test applies to both civil and criminal trials. It was used by the Florida Supreme Court in Tribune Co. v. Huffstetler, 489 So.2d 722 (Fla. 1986), in which the court reversed a reporter's contempt conviction for not revealing a source.

Georgia (SL, CRP) 

Shield Law: GA. CODE ANN. Section 24-9-30 (West, WESTLAW through end of the 2002 Regular Session)

Journalists in Georgia receive some protection under the state's shield law. The law is available to "any person" who is "engaged in the gathering or dissemination of news for the public through a newspaper, book, magazine or television broadcast." The statute applies to both confidential and non-confidential information, but it can be waived if the information sought has been published. However, in In re Paul, 513 S.E.2d 219, 223-24 (Ga. 1999), the Georgia Supreme Court held that publishing a story does not waive the shield law's privilege for related unpublished information. The court also found that the statute extends to a "source's identity" as well as the "information received from the source."

While there are no reported decisions involving student journalists, the broad language of the statute would imply that student journalists are covered under its protections. Keep in mind that a journalist must be gathering the information for dissemination to the public in order to come under the protection of the statute . Vance v. Krause, 18 Media L. Rep. 1572 (Ga. 1990). While the courts have not defined public dissemination, student publications that also distribute off-campus would have the greatest chance of meeting any possible challenges to their claim of protection under the shield law.

Before the shield law's enactment, the Georgia Supreme Court refused to find a reporter's privilege under the state's constitution in the context of a grand jury proceeding. Vaughn v. State, 259 Ga. 325 (1989). However, in cases where no statutory privilege applies, Georgia's courts have still taken measures to prevent reporters from forced disclosure, particularly where there has been no showing that the evidence is necessary to prove the claim. See, Ledee v. Devoe, 225 Ga. App. 620, 625 (1997).

Hawaii (SL, CRP) 

Shield Law: Haw. Rev. Stat. § 4-33-621

The shield law took effect in 2008 and is set to expire on June 30, 2011, unless the Hawaii legislature extends its duration.

The statute protects journalists and newscasters from being compelled to testify or produce evidence regarding "the source, or information that could reasonably be expected to lead to the discovery of the identity of the source, of any published or unpublished information obtained by the person while so employed or professionally associated in the course of gathering, receiving, or processing information for communication to the public" or "any unpublished information obtained or prepared by the person while so employed or professionally associated in the course of gathering, receiving, or processing information for communication to the public."

Though there is no case law applying the statute to student journalists, the language of the statute suggests the statute would apply to most student journalists. The statute's protection extends to "any individual who can demonstrate by clear and convincing evidence that: 

  1. the individual has regularly participated in the reporting or publishing of news or information of substantial public interest for the purpose of dissemination to the general public, 
  2. the individual's position is similar to that of a journalist or newscaster upon taking into account the method of dissemination, 
  3. the individual's interest in protecting sources or unpublished information is "materially similar" to the individual's interest in newsgathering, and 
  4. the public interest is served by extending the statute's protections to the individual in the given circumstances.

In addition to the recently enacted statutory privilege, a federal court in Hawaii has recognized a qualified common-law privilege to refuse to divulge confidential sources, but refused to extend the privilege to libel suits. DeRoburt v. Gannett, 507 F. Supp. 880 (D. Haw. 1981). Any such privilege would not withstand a subpoena if: 

  1. the information is relevant, 
  2. the information cannot be obtained elsewhere and 
  3. the party seeking the information has a compelling interest in it. 

Id. at 886 (quoting Miller v. Transportation Press, Inc., 621 F.2d 721, 726 (5th Cir. 1980)).

Idaho (CRP) 

Shield Law: None

The Idaho Supreme Court has recognized a qualified privilege grounded in the First Amendment and the Idaho Constitution that allows a journalist to refuse to disclose confidential sources. When faced with a demand to compel disclosure, a court will balance the interests of the parties by questioning whether the information sought is relevant, whether it can be obtained in another way and whether the interest in the information is compelling. In re Wright, 700 P.2d 40 (Idaho 1985). Idaho courts have already limited the privilege recognized in Wright to unpublished and confidential information.

Although Wright and the other Idaho court decisions concerning the reporter's privilege involved only professional journalists, there is nothing to suggest that courts will further limit the decision in Wright to exclude student journalists from the state's court-recognized protection.

Illinois (SL, CRP) 

Shield Law: 735 ILL. COMP. STAT. 5/8-901 to 8-909 (LEXIS through public act 93-001)

No one "regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full-time or part-time basis" can be compelled to disclose the sources of any confidential or non-confidential information under the Illinois shield law. A news medium includes any newspaper or periodical "issued at regular intervals . . . and having a general circulation." If a high school or college publication is distributed off campus as well as on campus, it probably could be considered to have a general circulation. Whether a student journalist works enough hours to be considered part- or full-time or "regularly engaged in the business of" is more questionable, especially if the student is unpaid. Illinois courts do not appear to have been directly confronted with the application of the law to young journalists. However, at least one court did include photographers in the list of protected individuals. People v. Slover, 753 N.E.2d 554 (Ill. 2001). While a librarian in the same case was unable to claim the privilege at the trial court level, the appellate court emphasized that photojournalists collect news; it did not comment on their full- or part-time status. Id. at 557. As a result high school and college students journalists would appear to be in pretty good shape.

Don Craven, general counsel for the Illinois Press Association, said that he has never been faced with a situation where a court or prosecutor argued that student journalists should not be covered by the shield law simply because they are students. "We simply never had a problem with that and I don't think we would," he said.

A reporter may be divested of the privilege if alternative sources of information have been exhausted and disclosure "is essential to the protection of the public interest involved or, in libel or slander cases, the plaintiff's need for disclosure . . . outweighs the public interest in protecting that confidentiality of sources of information." In addition, the statute does not apply to libel cases when the reporter is the defendant.

While most courts have looked to the shield law as the source for recognizing a reporter's privilege in Illinois, at least one relied solely on the First Amendment as the basis for such protection. Gutierrez c. Shafer, 9 Media L. Rep. 1054 (Ill. Cir. Ct. 1982). Finally, in a 1999 case involving the student newspaper at Southern Illinois University, a state court judge, in a ruling from the bench, appeared to rely on the common-law "special witness doctrine" to find that a student reporter did not have to turn over his notes to a public defender who had subpoenaed them. (See story, SPLC Report, Fall 1997).

Indiana (SL, CRP) 

Shield Law: IND. CODE Section 34-46-4-1 (West, WESTLAW through End of 2002 1st Special Sess.)

In Indiana, reporters must "receive income" from reporting and writing and be connected with or employed at "a newspaper or periodical . . . having a general circulation" or a licensed radio or television station to be covered under the statute. If a student journalist meets the requirements, he or she will be protected from disclosing in any legal or non-legal proceeding the name of any confidential source obtained from reporting. The shield law has been construed to protect only confidential sources of information rather than the information itself. College journalists seem more likely to be covered by this statue than --high school journalists because high school journalists are generally unpaid.

Student media - particularly high school media - may have more luck seeking protection under the state's court-recognized reporter's privilege. In In Re Stearns, 489 N.E.2d 146 (Ind. 1986), a state court of appeals recognized a qualified First Amendment privilege protecting disclosure of non-confidential information in a civil case. If the information desired is relevant, disclosure is critical to someone receiving a fair trial and other sources have been exhausted, the interests will be balanced to determine if compelled disclosure is warranted.

So far, Indiana courts have not distinguished between student and commercial news media. For example, in In re: Matter of an Investigation by the Prosecuting Attorney of Monroe County, Indiana, No. 53C049104CP00396 (Ind. Cir. Ct. Monroe Cty., May 21, 1991), a state circuit court judge allowed an Indiana University student photographer to argue - albeit unsuccessfully - that he was protected by the state's qualified First Amendment privilege from having to provide a county prosecutor with photographs he had taken of a campus riot. The student, who normally worked for the campus yearbook, had sold one of his photos to the Indiana Daily Student newspaper. In rejecting the student photographer's motion to quash the subpoena, the judge did not question the applicability of the privilege to student media, but rather ruled that - at least in Indiana - the First Amendment-based privilege (the student did not seek protection under the state shield law) did not apply to criminal investigations. The judge also noted that any harm to the First Amendment rights of the photographer were minimal because the student had merely witnessed and photographed the riot; he had not made any promises of confidentiality. (See story, SPLC Report, Fall 1991).

Recently, the Indiana Supreme Court in In re WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998), also refused to extend the First Amendment privilege to cover criminal cases.

Iowa (CRP) 

Shield Law: None

Iowa does not have a shield law, but its courts recognize a qualified privilege under the First Amendment and the Iowa Constitution. The courts lean toward disclosure in criminal cases, grand jury proceedings and in libel suits. Iowa courts have held the privilege protects confidential, unpublished information as well as sources. Waterloo/Cedar Falls Courier v. Hawkeye Community College, 646 N.W.2d 97 (Iowa 2002). In deciding whether to compel disclosure, the court asks whether the information is critical to the action or defense and whether all other means of obtaining it have been exhausted. A journalist requesting the privilege is protected if he or she "falls within the class of persons qualifying for the privilege" and the information sought was obtained as part of the "newsgathering process." Unfortunately, the terms "class of persons" and "newsgathering process" have not yet been defined by Iowa courts, although one district court extended the privilege to a freelance journalist. Stanfield v. Polk County, 18 Media Law Rptr. 1262 (Iowa Dist. Ct. 1990). Unless the courts say otherwise, it can be argued that student journalists are protected.

Kansas (SL, CRP) 

Shield Law:

In 2010, the Kansas legislature enacted and the governor signed H.B. 2585, creating a qualified reporters' privilege that covers all unpublished materials. The privilege can be overcome only be a showing of "compelling" need.

Although proponents believe that the law should cover at least staff members at mainstream college publications and broadcasts, the law is ambiguous because it defines a journalist as someone "employed" by an organization that regularly gathers and disseminates news to the public. This at least gives more students an argument for coverage than in states that require substantial financial compensation. For instance, a staff member working for a token stipend, or for college credit, might qualify as "employed" under the statute.

Prior to 2010, Kansas courts recognized a qualified privilege rooted in the First Amendment, protecting both sources and information leading to the identity of sources. The privilege is stronger in civil cases than in criminal ones. In State v. Sandstrom, 581 P.2d 812 (Kan. 1978), cert. denied, 440 U.S. 929 (1979), the Kansas Supreme Court said that "a newsperson has a limited privilege of confidentiality of information and the identity of news sources" based on the First Amendment. That court approved a case-by-case balancing of the need of the defendant to a fair trial against the reporter's need for confidentiality.

Although the common-law privilege has never been tested in an appellate case involving student journalists, a lower court has allowed a college journalist to claim reporters' privilege. In 1990, a Kansas trial court ruled that a student reporter for the Wichita State University newspaper did not have to disclose the identity of a confidential source. The student journalist was subpoenaed in a lawsuit that accused members of a fraternity of trespassing and vandalism. The plaintiffs in that case believed that, during his investigation for the story, the reporter uncovered the name of the fraternity member who set fire to their vehicle. The reporter did testify, but did not have to reveal the name of his source. During his testimony, the party who issued the subpoena decided not to file a motion to compel him to reveal the name. (See story, SPLC Report, Spring 1991).

Kentucky (SL) 

Shield Law: KY. REV. STAT. ANN. Section 421.100 (West, WESTLAW through 2/1/03).

Kentucky's shield law provides reporters with limited protection. While the law covers any person engaged in, employed by or connected with a newspaper, radio or television station, it only protects the identity of sources and applies only when the information supplied by the source is actually published or broadcast. The law does not protect reporter's observations (e.g. witnessing a criminal act), material obtained through personal investigation or any other information. Lexington Herald-Leader v. Beard, 690 S.W.2d 374 (Ky. 1984); Branzburg v. Pound, 461 S.W.2d 345 (Ky. Ct. App. 1971) (as modified), aff'd sub nom., Branzburg v. Hayes, 408 U.S. 665 (1972).

The Kentucky Supreme Court rejected the idea of a reporter's common-law privilege under both the First Amendment and the Kentucky Constitution. Lexington, 690 S.W.2d 374; Branzburg v. Meigs, 503 S.W.2d 748 (Ky. 1971).

The bottom line is that Kentucky student journalists will probably be entitled to the same statutory protection available to other journalists. However, due to the law's narrow scope, caution must be exercised when making promises of confidentiality.

Louisiana (SL, CRP) 

Shield Law: LA. REV. STAT. ANN. Sections 45:1451-1459 (West, WESTLAW through all 2002 First Extraordinary & Regular Session Acts)

The Louisiana law covers people regularly engaged in editorial activities of the news media. It defines news media to include radio, television, press associations, etc., and any newspaper or periodical issued at regular intervals and having a paid general circulation. Unfortunately, there are no cases where the law has been applied to student journalists, so it is unclear whether student journalists would be afforded its protection. It could certainly be argued that student journalists are "regularly engaged" in editorial activities. Many student newspapers are distributed free on campus, which might seem to disqualify the paper for the lack of a paid circulation. However, it might be argued that student activity fees or tuition payments that support the paper are the equivalent of the subscription fee charged by other papers. Student journalists may also look to Louisiana v. Fontanille, 1994 La. App. LEXIS 191 (La. Ct. App. 5th Cir. 1994) to support the claim that the shield law should apply to them. In Fontanille, the court of appeals interpreted the definition of a reporter broadly to include an investigative nonfiction book author who, they held, could claim the shield law's protections.

The Louisiana Court of Appeals has held that the law protects only sources. However, it also ruled that the information produced by the source need not be published to protect the source. Dumez v. Houma Municipal Fire and Police Civil Service Board, 341 So.2d 1206 (La. Ct. App. 1976), cert. denied, 344 So.2d 667 (1976). A later decision by a lower court seems to have expanded that protection by including not only the identity of the source but also any information that might reveal the source's identity. In re Michael Burns, 484 So.2d 658 (La. 1986). The law does not specify whether the source must have promised confidentiality for the law to be in effect.

There are certain limitations included in the law that must be kept in mind. First, in defamation cases, the burden is on the reporter to prove that the material was obtained from a source promised confidentiality. Second, the party seeking disclosure may apply to the court for an order to revoke the statutory privilege. The order will be granted upon a showing that the order is "essential to the public interest." In addition, in In re Grand Jury Proceedings (Ridenhour), 520 So.2d 372 (La. 1988), an appeals courtmade it clear that the order will be upheld where it is shown that the subpoena was issued in good faith and not simply to harass the journalist. Finally, the Ridenhour case, in recognizing a reporter's qualified First Amendment privilege in addition to the statutory protection, held that such a privilege would not apply to criminal activity witnessed by the reporter.

Journalists should be aware that the Louisiana statute includes a fairly detailed list of procedural requirements that must be adhered to by those subpoenaing the news media. These requirements protect some of the interests of journalists and should be consulted immediately upon receipt of a subpoena.

Maine (SL, CRP) 

Shield Law: Me. Rev. Stat. Ann. tit. 16, § 61

The shield law prohibits a "journalist" from being compelled to testify about, produce, or disclose 1) the identity of a confidential source of any information, 2) any information that could be used to identify a confidential source, or 3) any information obtained or received in confidence by the journalist when he or she is acting in a journalistic capacity of gathering or receiving news or information for potential dissemination to the public.

A court may compel disclosure of the identity of a source or confidential information if the court has determined by a preponderance of evidence that 

  1. the information or source's identity is material and relevant, 
  2. the information or source's identity is material and relevant to the maintenance of a party's claim, defense or proof of an issue material to the claim or defense, the information or source's identity cannot be obtained from any alternative source or through means "less destructive of the First Amendment," 
  3. there is an overriding public interest in the disclosure and 5) based on information provided by a source other than the journalist, there are reasonable grounds to believe a crime has occurred or there is a prima facie civil cause of action.

A journalist can waive the statute's protections if the journalist voluntarily discloses or consents to disclose the protected information.

Neither the statute nor Maine case law provides a definition of "journalist." Student journalists are likely covered by Maine's shield law provided they are engaged in legitimate journalistic efforts and are protecting journalistic interests by refusing to identify a confidential source or information.

Before enactment of the Maine statute in 2008, state courts had refused to recognize a state constitutional privilege. In In re Denis Letellier, 578 A.2d 722 (Me. 1990), the Maine Supreme Judicial Court adopted the Branzburg v. Hayes balancing test for a qualified privilege rooted in the First Amendment to the U.S. Constitution.

Maryland (SL) 

Shield Law: Md. Cts. & Jud. Proc. Code Ann. § 9-112

The Maryland shield statute covers those "employed by the news media," a term that is broadly defined to include any "printed, photographic, mechanical, or electronic means of disseminating news and information to the public." Although the statute arguably might have covered student journalists because it does not require any particular level of financial compensation, Maryland legislators amended it in 2010 to expressly cover certain college journalists. The amendment extends shield law protection to any journalist "enrolled as a student in an institution of postsecondary education and engaged in any news gathering or news disseminating capacity recognized by the institution as a scholastic activity or in conjunction with an activity sponsored funded, managed or supervised by school staff or faculty."

The amendment may leave in limbo a college journalist who is working for an independent, non-school-affiliated medium. However, those "employed" for any type of compensation should still be able to claim reporters' privilege under the pre-2010 provisions of the law. Ironically, the amendment arguably makes it more difficult than it was previously for high school journalists. Because the legislature expressly included only students enrolled in "postsecondary" institutions, a court would probably infer an intent to exclude all other students.

Under the Maryland law, any published or unpublished information can be successfully subpoenaed if the party seeking the information can establish by clear and convincing evidence that: 

  1. "the news or information is relevant to a significant legal issue," 
  2. it cannot be obtained by other means and 
  3. an overriding public interest compels disclosure. 

The statute's protection does not differ in civil and criminal cases. Bilney v. Evening Star Newspaper Co., 406 A.2d 652 (1979). In addition, reporters do not waive the privilege by publishing the identities of their sources.

Whether a constitutionally based privilege exists in Maryland is an open question. In WBAL-TV Div., Hearst Corp. v. State, 477 A.2d 776, 10 Media L. Rep. 2121 (Md. 1984), a television station asked the Maryland Supreme Court to recognize a three-part balancing test for the application of a First Amendment-based privilege. The court refused to decide whether any privilege exists, because it found that — even under the TV station's proposed three-part test — the station would lose, since the district court found a compelling need for disclosure of the station's unaired tapes, which provided evidence available nowhere else. See also Prince George's County v. Hartley, 822 A.2d 537, 31 Med. L. Rep. 1679 (Md. App. 2003) (refusing to determine whether a state constitutionally-based privilege exists).

Massachusetts (CRP) 

Shield Law: None

Student journalists may be protected from disclosing confidential and non-confidential sources and information in some circumstances. While Massachusetts has refused to adopt statutory protection for journalists or find one in their state constitution, Massachusetts courts have protected reporter's confidential sources under a First Amendment balancing test. In addition, the supreme judicial court recognized a qualified common-law privilege to protect confidential sources in a civil lawsuit. Sinnott v. Boston Retirement Board, 524 N.E.2d 100 (Mass. 1988), cert. denied, 109 S.Ct. 528 (1988). In Sinnott, the court said that a judge may weigh the public interest in the free flow of information against the litigant's need for the information and the availability of information from other sources in deciding whether a reporter should be protected from disclosure of a source or information. The court did not indicate whether the privilege would apply to student journalists, but it did hold that the interests for and against disclosure would be balanced on a case-by-case basis.

Michigan (SL) 

Shield Law: MICH. COMP. LAWS Sections 767.5a and 767A.6 (LEXIS through all 2002 legislation)

Michigan's shield laws are applicable only in grand jury proceedings and in cases where a prosecutor issues a subpoena. Both statutes protect "a reporter or other person" who gathers news for broadcast or publication. They also protect only confidential sources and unpublished information. Marketos v. American Employers Ins. Co., 460 N.W.2d 272 (Mich. Ct. App. 1990). Michigan courts have refused to recognize a constitution-based reporter's privilege.

In a grand jury proceeding, the shield law's privileges are overcome where the information sought concerns a "crime punishable by imprisonment for life," when it is "essential to the purpose of the proceeding" and when it cannot be obtained from another source.

Subpoenas issued by a prosecutor can only be upheld where the information has already been broadcast or published or where "the reporter is the subject of the inquiry."

No cases in Michigan have addressed how the courts would interpret the word "reporter" in the statutes. However, in In re Investigation of March 1999 Riots in East Lansing , 617 N.W.2d 310 (Mich. 2000), the state supreme court ruled that Michigan State's student newspaper and other, commercial media organizations did not have to comply with a subpoena seeking the newspaper's photos of a campus riot. The court ruled that a prosecutor, who was attempting to build a case against the rioters, could not compel the newspaper to turn over its pictures because the pictures were not disseminated to the public and the reporters were not the subject of the inquiry. (See story, SPLC Report, Winter 2000-01). Therefore, it seems clear that the shield law's broad language does cover student journalists, if not as reporters, then at least as "other persons."

Minnesota (SL, CRP) 

Shield Law: MINN. STAT. ANN. Sections 595.021-.025 (West, WESTLAW through End of 2002 1st Sp. Sess.)

The Minnesota shield law, which was revised in 1998, explicitly recognizes the public's interest in protecting the free flow of information provided by the news media. The law protects those persons "directly engaged in the gathering, procuring, compiling, editing, or publishing of information" from revealing sources or unpublished information. There are no reported cases directly involving students under the state's revised shield law, but it appears student journalists should have the same protections now afforded the commercial media.

The courts have interpreted the statute to protect even unpublished information from a non-confidential source. Arial Burials, Inc. v. Minneapolis Star and Tribune Co., 8 Med. L. Rep. 1653 (Minn. Dist. Ct. 1982). The sweeping protection offered by the law is limited by a statutory procedure for those who seek exemption from the rule. Journalists can be forced to reveal both sources and unpublished information where the material sought: 

  1. is clearly relevant to a gross misdemeanor or felony or a regular misdemeanor as long as the information obtained by testifying would not identify the source, 
  2. cannot be obtained by alternative means and 
  3. is necessary to prevent injustice. 

In addition, the shield law will not protect journalists in any defamation action where the person seeking disclosure can demonstrate that: 

  1. the identity of the source is clearly relevant to the issue of actual malice and 
  2. the information cannot be obtained by alternative means. 

The determination of these issues is made during a court hearing with provisions for direct appeal to a higher court. These broad exceptions leave the effectiveness of the Minnesota law in doubt. It is clear that journalists in this state must exercise caution in their offers of confidentiality.

Under the previous version of the shield law, a student newspaper was ordered to turn over photos of a raucous campus rally after a court ruled that the law, which did not shield all unpublished material, did not protect the material. The photos were sought as evidence in a trial involving a student accused of assaulting a police officer during the rally. For over two years, the student newspaper at the University of Minnesota denied the judge's request. In January 1996, however, the court found then-editor Michelle Ames in contempt of court. While Ames was prepared to go to jail rather than turn over the photos, the court instead fined the newspaper $250 for each day the photos were not turned over. The newspaper's battle finally ended with the conclusion of the trial. (See story, SPLC Report, Spring 1996).

In addition to the uncertain protections afforded them by the law, Minnesota journalists must also take heed of the holding in Cohen v. Cowels Media, 479 N.W.2d 387 (Minn. 1992),where a court decided that a source can sue a reporter for breaching a pledge of confidentiality.

The Minnesota Supreme Court has declined to recognize a state-constitution-based reporter's privilege in criminal cases. State v. Turner, 550 N.W.2d 622, 628 (Minn. 1999). However, state courts have recognized a First Amendment-based privilege for a reporter's sources and materials in civil matters. See, e.g., Weinberger v. Maplewood Review, 648 N.W.2d 249 (Minn. App. 2002).

Mississippi (CRP) 

Shield Law: None

The state of Mississippi has recognized a reporter's qualified privilege to refuse to disclose confidential information or sources in civil and criminal proceedings. Hawkins v. Williams, Civ. No. 2900054 (Cir. Ct. 1st Jud. Dist. Hinds Cty., Mar. 16, 1983); Mississippi v. Hardin, Crim. No. 3858 (Cir. Ct. Yalobusha Cty., Mar. 23, 1983). The courts in Hawkins and Hardin based the reporter's privilege on the First Amendment and the state constitution. The privilege is not applicable, however, in defamation cases. Eason v. Federal Broadcasting Co., 697 So.2d 435, 437 (Miss. 1997). While there are no reported cases involving student journalists, there is nothing to suggest that courts would distinguish between student and commercial news media in applying the privilege.

Missouri (CRP) 

Shield Law: None

The Missouri Court of Appeals has recognized a qualified privilege against compelled disclosure of confidential sources and information based on the First Amendment. State of Missouri, ex. rel. Classic III, Inc. v. Ely, 954 S.W.2d 650 (Mo. Ct. App. W.D. 1997). In Classic III, the court held that the a reporter's privilege protects "confidential communications made by confidential sources" even when the information from the sources was not relied upon for the story. The court focused on four factors when balancing the "needs of disclosure and confidentiality." The court looked to: (1) whether alternative sources of information have been exhausted, (2) the importance of protecting confidentiality, (3) whether the information is crucial to the other party's case and (4) whether the plaintiff has made a prima facie case for defamation.

While there are no reported cases involving student media, student journalists may argue that the qualified privilege applies to them on First Amendment grounds just as it would professional newsgatherers.

Montana (SL)

Shield Law: MONT. CODE ANN. Sections 26-1-901 to 26-1-903 (LEXIS through the 2002 Special Session)

Montana's student journalists are protected by one of the country's strongest shield laws. The law, known as the "Media Confidentiality Act," protects those persons "connected with or employed by" a news media organization from having to disclose any information - or the source of that information -- in any legal proceeding, provided the material was gathered in the course of the person's duties as a newsperson. In Linda Tracy v. City of Missoula, Missoula County Cause No. DV-00-849 (2001), a district court judge ruled that Linda Tracy, a University of Montana journalism student, was covered under Montana's shield law. Tracy was subpoenaed by prosecutors after she refused to turn over raw footage she shot during a Hell's Angels gathering. The footage was used for a documentary she produced for her student internship, which aired on Missoula Community Access Television. The judge said that because Tracy's work was gathered in "connection with" one of the protected media organizations listed in the state statute, she was acting as a journalist under the law and protected by the privilege. (See story, SPLC Report, Spring 2001).

Montana's law extends to both published and unpublished material. The shield law's protection can be waived, however, if the journalist volunteers to testify before a judicial, administrative or legislative body about either the information or its source. There is no reported decision in Montana where courts have recognized or declined to recognize a state or federal constitutional privilege.

Nebraska (SL)

Shield Law: NEB. REV. STAT. Sections 20-144 to 20-147 (West, WESTLAW through End of 2002 Third Special Section)

Nebraska's shield law (a.k.a. "Free Flow of Information Act") recognizes that it is the policy of the state "to insure the free flow of news and information to the public" and that newsgatherers can only perform this function in a "free and unfettered atmosphere." The state has further recognized that requiring a reporter to involuntarily disclose information or its source is contrary to this goal. Accordingly, Nebraska reporters are guaranteed absolute protection from compelled disclosure of the identity of a source of any unpublished and published (or broadcast) information, as well as unpublished or non-broadcast information. Information that has been published or broadcast that is unrelated to the disclosure of a source does not have absolute protection from disclosure. The law does not specify whether a source must have been promised confidentiality for the shield law's privilege to be in effect. There is no court decision applying or denying a constitution-based reporter's privilege in Nebraska.

While there are no cases in which the law has been used by student media, both the language and the expressed intent of the statute suggest that student journalists are entitled to the full extent of its protection.

Nevada (SL) 

Shield Law: NEV. REV. STAT. Section 49.275 (West, WESTLAW through 2001 Regular session and 17th (2001) and 18th (2002) Special Sessions of the 71st Legislature)

It is unclear whether student journalists would be protected by Nevada's comprehensive shield law. The law, called the most protective in the country by one court, Laxalt v. McClatchy, 14 Med. L. Rep. 1199 (D. Nev. 1987), provides absolute protection to reporters and editorial employees of both print and broadcast news media from having to disclose to any governmental body any published or unpublished information or its source if the material was obtained in the person's "professional capacity" as a newsgatherer. Unfortunately, the phrase "professional capacity" has never been defined by the Nevada legislature or courts and there are no cases in which the law has been interpreted with student journalists in mind.

Even though the language might initially seem to preclude most student journalists, it is conceivable that some students - particularly those compensated in some way for their work (e.g. tuition reimbursement, scholarship funding, etc.) - might be covered by the law. Nevada courts have not recognized a qualified reporter's privilege.

New Hampshire (CRP)

Shield Law: None

It seems clear that state courts would extend a state-constitution-based qualified privilege against disclosure to student reporters. In New Hampshire v. Siel, 444 A.2d 499 (N.H. 1982), the court approved a lower court ruling that two reporters for a college newspaper could assert a qualified privilege against disclosing the identity of confidential sources in a criminal proceeding. The defendant, who was convicted of the murder, tried to force the reporters to disclose their sources of information. The supreme court said the reporters were protected from disclosure because the defendant did not show that the confidential information, if released, would affect the guilty verdict.

The supreme court in Siel approved the lower court's ruling without explicitly noting that the reporters worked for a student newspaper. The court based its decision on the state constitution's guarantee of freedom of the press.

A qualified privilege also has been recognized in civil cases. Opinion of the Justices, 373 A.2d 644 (N.H. 1977). The court declined to define who qualifies as press under the state constitution. But the decision in Siel indicates that student reporters, particularly at the college level, would be protected from forced disclosure unless a litigant can overcome the privilege.