Reporter's Privilege guide: Nebraska - Pennsylvania
SL = State has enacted a shield law
CRP = State has a court-recognized privilege, generally based on the state constitution or federal First Amendment.
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Nebraska reporters are guaranteed absolute protection from compelled disclosure of the identity of a source of any unpublished and published (or broadcast) information, as well as unpublished or non-broadcast information.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.
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employees of both print and broadcast news media from having to disclose to any governmental body any published or unpublished information or its source if the material was obtained in the person's "professional capacity" as a newsgatherer.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.
New Jersey (SL)
Shield Law: N.J. STAT. ANN. Sections 2A:84A-21 to 2A:84A-21.9, 2A:84A-29 (West, WESTLAW through L.2003, c.1 to 31).
Although the state courts have not ruled on whether the state's current shield law applies to student reporters, there are several reasons to believe that students would be protected from compelled disclosure.
The shield law protects "[A] person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public . . ." Student reporters clearly are engaged in, connected with and possibly even employed by the new media. However, student reporters may have a harder time showing that the general public is their audience. Students may try to prove that the general public is their audience by showing that: (1) their publications are read by persons other than students, (2) their publications address issues of general interest in the community or (3) their publications comply with the shield law requirements in all other respects. Student journalists have another hurdle in that newspapers, under the act, must also be distributed "ordinarily not less frequently than once a week." Student newspapers published less often than once a week would have a harder time falling within the protection of the statute.
Under an old version of the state's shield law, the principal and newspaper adviser at Millville High School in New Jersey were subpoenaed when the school paper, the Tattler, in its March 1981 issue, published an interview with an unnamed drug dealer The newspaper adviser was the only person who knew the name of the student interviewer and only the student reporter knew the identity of the source, identified only as the "Candy Man." The adviser refused to reveal the student reporter's name to the county prosecutor and before the grand jury. The court rejected the adviser's claim that he was protected by a First Amendment-based privilege or the shield law because the student paper did not have a paid circulation or a second class mailing permit. The prosecutor, however, dropped the subpoenas before the adviser was forced to testify. (See story, SPLC Report, Fall 1981). Because the case involved a now repealed version of the shield law, it has no ongoing legal significance to New Jersey student journalists.
In applying the shield law, a New Jersey superior court liberally construed the requirements for what constitutes a "news medium" under the statute. In re Avile, 501 A.2d 1018 (N.J. Super. Ct. App. Div. 1985). The court said a 20-page tabloid paper fell under the statutory language extending the privilege to reporters at a publication similar to a newspaper. The court ruled that the tabloid, which was distributed free, did not meet the statutory requirements of a "newspaper" because it did not have a paid circulation. But the court extended the privilege to the tabloid, saying that the courts should look at the intention behind the statutory requirements rather than merely the form. The decision suggests that even if a student publication does not strictly comply with the shield law's requirements (for example, it publishes bi-weekly rather than weekly), a court may extend the privilege to students connected with the publication.
Several other decisions have recognized that the legislature has tried to establish the strongest possible protection for reporters and the news media. For example, in In re Schuman, 552 A.2d 602 (N.J. 1989), the state supreme court held that the shield law protects journalists from being compelled to testify for the prosecution in a criminal case, even if the information or news has already been disseminated, unless the defendant is able to show that the information is relevant, material, necessary to the defense and cannot be obtained from other means. Also, the shield law protects reporters who are defendants in libel cases. Maressa v. New Jersey Monthly, 445 A.2d 376 (N.J. 1982), cert. denied, 459 U.S. 907 (1982). The shield law also protects sources and unpublished information. Publication can waive the protection but only for the actual published information.
While New Jersey state courts have never found a state or federal constitutional reporter's privilege, a federal district court in New Jersey did recognize a First Amendment-based privilege in a case involving a college student newspaper reporter. In February 1995, reporter Lisa Zerbo wrote an article in the State University of New Jersey, Camden Campus' student newspaper, The Gleaner, about a professor, which was subpoenaed by two other professors suing the professor on allegations of racial discrimination. Her notes and all other documents connected with the interview were subpoenaed. The court said the interview conducted with the student reporter did not reveal issues relevant to the heart of the claim, and the court believed that there were alternative sources for the same information. The subpoena was quashed. Behrens v. Rutgers University, Civ. No. 94-358 (D.N.J. Aug. 3, 1995). (See story, SPLC Report, Winter 1995-96).
New Mexico (SL)
Shield Law: N.M. Sup. Ct. R. 11-514 (LEXIS through Jan. 23, 2003)
The state supreme court has adopted an evidentiary rule that protects reporters from being forced to disclose confidential sources or information in most circumstances. No state court has decided whether student journalists may assert the rule's qualified privilege. However, student reporters could make a strong argument that the rule protects them because of its broad language.
The evidentiary rule extends a testimonial privilege to "a person engaged or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public." A student reporter could show that he or she is "engaged" or "employed by" the news media. However, to prove the latter, the student would probably need to offer evidence that he or she received some compensation such as a wage or tuition reimbursement. Given the rule's apparently straightforward requirements, reporters for student newspapers should have a good chance of qualifying for the privilege.
All reporters should be aware that the evidentiary privilege may be overcome if a party shows by a preponderance of the evidence that there is a reasonable opportunity that the confidential source or information are material and relevant to the case, no alternative means of discovering the information or sources exists, the information or source is crucial to the case and the need for the information or source "clearly outweighs" the public's interest in protecting the source or information.
The state supreme court has declined to recognize a common-law or constitutional privilege for reporters to refuse to disclose confidential information or sources. American v. Hubbard Broadcasting Inc., 572 P.2d 1258 (N.M. Ct. App. 1977), cert. denied, 572 P.2d 1257 (N.M. 1977), cert. denied, 436 U.S. 906 (1978).
New York (SL, CRP)
Shield Law: N.Y. CIV. RIGHTS LAW Section 79-h (West, WESTLAW through L.2003, chs. 4 to 19 and 52)
New York is one of the few states in which a court has explicitly extended the reporter's privilege to student journalists. In Persky v. Yeshiva University, 2002 WL 31769704 (S.D.N.Y. Dec. 10, 2002), a federal district court held that a student reporter could avail himself of the First Amendment-based reporter's privilege. The student journalist wrote a piece about possible religious discrimination against a Yeshiva employee. He attributed his information to "a number of university employees." After he was subpoenaed to reveal his sources and refused to provide the information, the court said that as a student journalist he was not precluded from "the class of persons entitled to the privilege." Id. at 2. "The burden indeed may be sustained by one who is a novice in the field," the court noted. Id. (quoting von Bulow by Auersperg v. von Bulow, 811 F.2d 136, 144 (2d Cir. 1987)). (See story, SPLC Report, Spring 2003).
A similar result occurred in a 1993 case involving a student reporter working on the law school newspaper at SUNY-Buffalo. Blum v. Schlegel, 150 F.R.D. 42 (W.D.N.Y. 1993). In recognizing a First Amendment-based qualified privilege that protected the student reporter from having to turn over a tape recorded interview, the court concluded that the proper inquiry to determine whom a qualified privilege protects is not whether the person is a journalist by profession, but rather "how the person asserting the privilege intended to use the information gathered." Id. at 45. If the information was collected for the purpose of dissemination, the court said, the privilege should be available. (See story, SPLC Report, Winter 1993-94).
As is typically the case,the qualified privilege can be overcome by a showing that the information is highly material and relevant, critical or necessary to the party's claim and not obtainable from an alternative source. Significantly, both courts recognized that if the New York shield law - instead of the federal-law-based qualified privilege - governed the case, the students would probably not have been entitled to claim it.
Under the New York shield law only professional reporters are covered. Professional reporters are those persons who make their "gain or livelihood" working for a professional news medium. The statute further limits the protection to newspapers that are distributed at least once a week, have a "paid circulation" and a second-class postage permit. A New York court, relying on the language in the state shield law, held that it did not apply to student reporters working for the Hofstra University student newspaper. New York v. Hennessey, 13 Med. L. Rep. 1109 (N.Y. Dist. Ct. 1986). (See story, SPLC Report, Fall 1986).
New York student journalists receiving a subpoena should first determine if the information sought in the subpoena concerns a federal issue and can therefore be heard in a federal court. If so, they should be able to claim protection under the federal-law-based qualified privilege. If the information sought in the subpoena concerns only a state issue, most student reporters will probably not be covered by the state shield law, for the reasons discussed above. In such cases, state courts may still find that student journalists are entitled to some protection. New York courts have recognized that both the state constitution's free press provision and the First Amendment provide at least a qualified privilege against compelled disclosure of both confidential and non-confidential material by journalists. O'Neill v. Oakgrove Const., Inc., 71 N.Y.2d 524, 527-28 (1988). The same court also noted that the New York Constitution may even provide more protection than that available under the First Amendment. Id. at 529, n. 3. To date, New York state courts have not had the opportunity to directly address the issue of the applicability of a federal or state constitution-based qualified privilege to student media.
North Carolina (SL, CRP)
Shield Law: N.C. GEN. STAT. Section 8-53.11(b) (West, WESTLAW through S.L. 2003-2 of the 2003 Reg. Sess.)
North Carolina enacted its shield law after a North Carolina appellate court refused to recognize a reporter's privilege for non-confidential information in a criminal case. In re Owens, 128 N.C. App. 577 (1998), aff'd 350 N.C. 656 (1999). The shield law extended the reporter's privilege to protection of "any confidential or non-confidential information" in any criminal or civil case. Journalists protected by the law are "engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium." A news medium is "regularly engaged in the business of publication or distribution of news."While the courts have not had the opportunity to decide if the shield law's privilege extends to student journalists its broad language would suggest that it does. The statute has no employment requirements. However, the student media would have to show that they are "regularly engaged" in disseminating information. North Carolina student journalists do not have to show that this information is disseminated to any particular group of people, which should help student media claim the privilege's protections.
The shield law is a qualified one. If someone seeks to force disclosure from a reporter he or she must establish that the information sought is: (1) relevant and material, (2) cannot be obtained elsewhere and (3) is essential to the maintenance of the claim.
Before the shield law was enacted in 1999 North Carolina trial courts consistently recognized a First Amendment-based reporter's privilege.
North Dakota (SL)
Shield Law: N.D. CENT. CODE Section 31-01-06.2 (West, WESTLAW through 2001 Regular Session)
The North Dakota shield law protects persons "engaged in news gathering, writing, photographing, or editing news" as long as that person is "employed by or acting for any organization engaged in publishing or broadcasting news." The broad language of the shield law appears to protect student journalists, especially student journalists who receive pay for their work. However, while the statute refers to journalists employed by the news media it also covers those who are "acting for" a news organization. This should include student journalists who are unpaid or who only receive credit for their work.
The statute specifically protects both sources and information. However, it does not distinguish between confidential and non-confidential sources and information. The privilege can be overcome if the courts find that a miscarriage of justice would result from nondisclosure. In considering whether a miscarriage of justice would occur the courts look to whether the information is available from another source, if the source is confidential, if the information has been published, the chilling effect the disclosure would have on First Amendment rights and the relevance of the information. While the statute does not address the issue of publication, the North Dakota Supreme Court in Grand Folks Herald v. District Court, 322 N.W.2d 850 (N.D. 1982) expressed doubt that turning over a published photograph would have a chilling effect on the First Amendment. In sum, student journalists would have a better chance of relying on the state shield law if they can show that the information is confidential and unpublished.
The North Dakota Supreme Court has neither accepted nor rejected a reporter's privilege based on the First Amendment to the U.S. Constitution or the state constitution.
Ohio (SL, CRP)
Shield Law: OHIO REV. CODE ANN. Sections 2739.04 and 2739.12 (West, WESTLAW through 2/15/03, including File 250 of the 124th GA (2001-2002), apv. 1/10/03)
Student journalists in Ohio would probably be protected by the state shield law. The law provides that "[n]o person engaged in the work of, or connected with, or employed by any newspaper . . . for the purpose of gathering, procuring, compiling, editing, disseminating, or publishing news" is required to disclose the identity of a confidential source. A separate shield law applies to television and radio broadcasters. In fact, the broadcast law appears to broaden the coverage for reporters. It specifically covers noncommercial educational as well as commercial radio and television stations.
The privilege, while protecting a broad group of people, only covers confidential sources. However, confidential sources receive substantial protection. In re Grand Jury Proceedings, 749 N.E.2d 325 (Ohio Ct. App. 1999).The privilege may be overcome if a criminal defendant can prove that: (1) the newsperson has information relevant to his guilt or innocence, (2) all alternative means of obtaining the information have been exhausted and (3) the defendant made an effort to examine the newsperson concerning his non-confidential information and requested an in person inspection by the court of the information. In re McAuley, 408 N.E.2d 697 (Ct. App. Cuyahoga County 1979).
In addition to the shield law, some Ohio courts have recognized a qualified reporter's privilege under the First Amendment and have suggested that such a privilege might also exist under Ohio's state constitution. See, e.g., Fawley v. Quirk, 11 Med. L. Rep. 2336 (Ohio Ct. App. 1985).
Oklahoma (SL, CRP)
Shield Law: OKLA. STAT. tit. 12, section 2506 (West, WESTLAW through end of 2002 Regular Session).
Oklahoma's law is broad enough that it should be applicable to student journalists. The law protects any "reporter, photographer, editor, commentator, journalist, correspondent, announcer, or other individual regularly engaged in obtaining, writing, reviewing, editing, or otherwise preparing news." While the statute says that employment in the news media is an example of being "regularly engaged," it does not say that employment is a condition to using the privilege.
Once the privilege applies, a reporter is protected from disclosing the sources of published and unpublished information as well as the unpublished information itself. The source's identity need not be confidential to be protected. While the protection for sources does not appear to be qualified, the privilege for unpublished information can be overcome if there is clear and convincing evidence that the information sought is relevant and cannot be obtained by alternative means.
In addition to the shield law, the Oklahoma Supreme Court recognized a qualified First Amendment privilege in Taylor v. Miskovsky, 640 P.2d 959 (Okla. 1981).
Shield Law: OR. REV. STAT. Section 44.510-44.540 (West, WESTLAW through 2/15/03, including file 250 of the 124th GA (2001-2002) apv. 1/10/03).
The Oregon shield law provides extensive protection for all members of the news and information media. While the courts have never applied the law to a case involving student journalists, the broad language of the statute and its liberal interpretation in other cases makes it highly probable that students are entitled to its full protection. The statute provides absolute protection from compelled disclosure of both sources and all information obtained by journalists in the course of their work. It is not clear whether the journalist must have promised confidentiality for the source of information to be covered by the law. The only exceptions to the Oregon statute exist where: (1) there is probable cause to believe that the journalist has or is about to commit a crime or (2) where the defendant in a defamation suit has asserted a defense based on the content or source of the information.
In a case handed down prior to the enactment of both the state shield law and the U.S. Supreme Court's ruling decision in Branzburg v. Hayes, 408 U.S. 665 (1972), the Oregon Supreme Court ruled in 1968 that Annette Buchanan, a writer for a college newspaper, had to reveal the names of confidential sources before a grand jury. State v. Buchanan, 436 P.2d 729 (Ore. 1968). Buchanan had interviewed seven persons who claimed to be marijuana users on the condition that she not disclose their identities. After reading Buchanan's story, local law enforcement officials convened a grand jury investigation into the illegal use of drugs and issued a subpoena to Buchanan. The court dismissed Buchanan's claim that the Oregon Constitution protected her and the U.S. Supreme Court refused to hear an appeal.
Because of the state's subsequent enactment of the Oregon shield law, the student media should not be affected by Buchanan's impact.
Pennsylvania (SL, CRP)
Shield Law: 42 PA. CONS. STAT. ANN. Section 5942(a) (West, WESTLAW through Act 2002-237 (End))
Pennsylvania's shield law applies to anyone "engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purposes of gathering, procuring, compiling, editing or publishing news." The law does not define the terms "engaged on, connected with, or employed by" or "general circulation" or what it means to gather, procure, compile, edit or publish news. To date, there are no reported cases involving student journalists. However, the broad language would suggest that student journalists should be covered. The only hurdle students journalists who wish to assert the statutory privilege might face is that, under the statute, newspapers must have a general circulation and broadcast stations must maintain copies of their broadcasts or transcripts of their programs for at least one year. Newspapers that have at least some community-wide distribution or produce an online edition may be in a better position to claim the privilege than those that distribute copies only in the school or on campus. Where it applies, the shield law's protection is absolute in civil cases that do not involve actions of defamation. The statute protects confidential sources and information leading to the identity of a source. Commonwealth v. Tyson., 800 A.2d 327 (Pa. Super. Ct. 2002). The shield law is qualified, however, in criminal cases and in defamation actions.
In addition to the shield law, Pennsylvania courts have also recognized a qualified privilege under the First Amendment. The First Amendment reporter's privilege may be even more inclusive than the shield law. It has been extended to members of the "news media," including "reporters." Davis v. Glanton, 705 A.2d 879, 885 (Pa. Super. 1997). Again, there are no Pennsylvania cases that discuss the definitions of "news media" or "reporter" for the purposes of the privilege. However, one Pennsylvania trial court, without discussion, applied the First Amendment privilege to an Internet Web site that published an anonymous posting of political commentary. Melvin v. Doe, 49 Pa. D. & C.4th 449, 477 (CP Allegheny 2000).
The First Amendment privilege covers confidential as well as non-confidential sources and unpublished information. There is disagreement among the Pennsylvania courts about whether it extends to protect published information. McMenamin v. Tartaglione, 590 A.2d 802, 811 (Pa. Commw. 1991), aff'd without op., 590 A.2d 753 (Pa. 1991) (applying privilege to published statements); But see Pennsylvania v. Banner, 17 Med. L. Rep. 1434 (Pa. Ct. C.P. Lehigh Cty. Nov. 13, 1989). Publication will waive the statutory privilege. In re Taylor, 193 A.2d 346, 350-51 (Pa. 1987); Davis v. Glanton, 705 A.2d 879 (Pa. Super. Ct. 1997). The First Amendment privilege can be overcome if the information sought in the subpoena is crucial to the claim, all alternative sources of information have been exhausted and the reporter is the only source of the information.
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