Reporter's Privilege

As stated in The First Amendment Encyclopedia, the concept of reporter's privilege is that ‘journalists have a limited First Amendment right not to be forced to reveal information or confidential news sources in court.’ Many journalists have a commitment to their work by protecting their sources even in the face of jail time. In fact, Branzburg v. Hayes in 1972 was the first and only reporter’s privilege case to be considered by the U.S. Supreme Court.

Branzburg v. Hayes

The Supreme Court pronounced that freedom of the press abstained from creating a lawful privilege to protect journalists from prosecution by having to testify in court. Paul Branzburg with three other reporters all refused to appear in front of the jury, fearing that their journalistic integrity would go into question if they were to reveal their confidential sources. The court ruled the case failed to involve any values of the First Amendment, and refused protection for reporters who were to testify.

In fact, many of the states were unwilling to protect journalists from revealing their sources to a grand jury, for the common law and American history both looked down upon anyone who hid crime by not reporting it. In short, the reporters lost but soon after shield laws came into play.

Shield Laws

In 2021, the District of Columbia and forty other states enacted shield laws, which gave reporter's privilege that would allow them to not compel confidential sources or any other information. If a state does not have a shield law, reporters are still able to convince the court of some sort of qualified privilege.

Invoking Reporter's Privilege

Shield laws are limited and may deny access to reporters or coverages to certain journalistic material. For example, journalists are defined differently in some laws. A journalist can be only protected if they are enrolled in a full-time position at a newspaper or news station; while freelance journalists, authors, and other non-traditional reporters may be exempt from this privilege and would have to rely upon the First Amendment for their protection.

For instance, in 2019 the Supreme Court of Nevada ruled that its shield law enclosed digital publications, mentioning that “a blog should not be disqualified from the news shield statute…merely on the basis that the blog is digital, rather than appearing in an ink-printed, physical form.” (RCFP)

Qualified vs. Absolute Privileges

In sixteen states plus the District of Columbia, reporter’s privilege for confidential information is considered absolute, which means it is unable to be subdued under any circumstances. States with this privilege are: Alabama, Arizona, California, Kentucky, Montana, Minnesota, Nebraska, Nevada, New Jersey, New York, Ohio, Oregon, Pennsylvania, Vermont, Washington, and Wisconsin. (RCFP)

Other states have what is known as a qualified privilege where the courts balance the needs for disclosure with the public’s interest in keeping the sources and information confidential. This process requires the party seeking disclosure to reveal forms that follows:

the subpoenaed information is relevant to the case
it is unable to be obtained from another source
the disclosure is in the public’s interest

Reporter's Privilege