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State-by-State Guide to the Reporters Privilege for Student Media

(Alabama - Illinois)


© 2010 Student Press Law Center

Key:

SL = State has enacted a Shield Law

CRP = State has a Court-Recognized Privilege, generally based on the state constitution or federal First Amendent.

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 Note

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).

Continued

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