EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Sunday, April 10, 2011

The Shield: Taking A Look At Recent Shield Law Developments Across The Country

shield law or reporters' privilege is legislation designed to provide a news reporter with the right to refuse to testify as to information and/or sources of information obtained during the news gathering and dissemination process. After reading some recent articles on the subject, I thought that I would do a post about the status of shield laws in the states.

Hawai'i is about to re-up its shield after a unanimous vote by the Hawai'i Senate Judiciary and Labor Committee. In 2008, Hawai'i became the 36th state to enact a shield law, with its law providing

a qualified privilege for journalists to refuse to reveal sources and the content of newsgathering materials. It covers any individual who works for or previously worked for a magazine, newspaper, or radio or television station. The law also protects online journalists if they regularly report on information of public interest

After Hawai'i created its shield law, Texas became the 37the state to enact a shield law. Its law provides that

in a criminal case, journalists could be compelled to disclose felony crimes and the identity of sources who admit to committing a crime. The proposed law also would not keep reporters from testifying as witnesses to crime or when disclosure of a confidential source is needed to stop a likely death or substantial bodily harm.

In civil cases, a judge could compel a reporter to testify or turn over notes only when all reasonable efforts have been exhausted and the information is essential to one or both sides.

Kansas then became the 38th state. Under its law,

a party seeking disclosure of a reporter's newsgathering materials or confidential sources must show in court that the information is material and relevant to the controversy for which the disclosure is sought; could not be obtained by alternate means after exercising due diligence; and is of a compelling interest.

Wisconsin soon thereafter became state 39. Pursuant to its law,

Disclosure of unpublished newsgathering materials may only be compelled in a criminal case if the court finds, after it notifies the reporter and gives them the opportunity to be heard, that the requester proved by clear and convincing evidence that a crime has occurred. 

In a civil case, the requester must prove the information sought is highly relevant, is necessary, and is not obtainable from any alternative source, and that disclosure is in the overriding public interest.

Interestingly, the bill also has a section that restricts the issuance of a subpoena to a nonreporter if the intent is to obtain information relating to a transaction with a news person that would be barred from disclosure under the statute. This unusual provision offers an additional layer of protection to the newsgathering process.

Finally, just a few days ago, West Virginia became state 40. Under its law,

a "reporter" is someone who gathers and disseminates news to the public for a portion of the person’s livelihood, suggesting that freelance journalists would be protected, while unpaid bloggers would not. The protection is not limited to specific media; as such, paid online journalists should fall under the statute. Moreover, the law specifically covers unpaid student journalists.

The legislation also mandates that existing protections afforded journalists and others under the federal and West Virginia Constitutions remain intact, a significant provision in light of courts’ general acceptance of the state Supreme Court’s articulation of a qualified reporter’s privilege in Hudok v. Henry.

Under Hudok, a reporter can be compelled to disclose his or her confidential sources or newsgathering materials only upon a clear and specific showing that the information is highly material and relevant; necessary or critical to the maintenance of the claim; and not obtainable from other available sources. An attempt to codify this protection with a bill in 2007 failed to make it out of committee.



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