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The Tenth Circuit, and the federal district courts within the circuit, have recognized a qualified reporter's privilege under the First Amendment, that extends even to published information. Although the Tenth Circuit has twice articulated a four-part test to define the contours of the reporter's privilege, it has yet to apply those factors itself to a particular set of facts.
The Tenth Circuit first formally recognized and adopted the reporter's privilege under the First Amendment following the Supreme Court's ruling in Branzburg v. Hayes, 408 U.S. 665 (1972). As a result of the Branzburg decision, the Tenth Circuit affords newsgatherers a qualified privilege under the First Amendment against revealing news sources and confidential information. See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977). Lower court cases within the Tenth Circuit have extended the privilege to other unpublished information, including non-confidential material, see infra Section III. E., and to published information. See infra Section III. F.
The Tenth Circuit has adopted a four-part balancing test to determine when the First Amendment reporter's privilege is extant or defeated (overcome). To overcome a reporter's assertion of the privilege, a party must make a showing of strong need for the information (a showing that the information sought goes to "the heart of the matter" being litigated) and the unavailability of the information from alternative sources. See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977) (stating that the existence of the privilege "is no longer in doubt"). Application of the privilege varies among the district courts in the Circuit, with very few reported decisions from which to draw broader conclusions or trends.
The Tenth Circuit has not discussed any instances where the reporter's privilege may be absolute. See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977). The Circuit has only recognized a qualified reporter's privilege. Id.
In civil actions, the party seeking to compel disclosure must show a particularly strong need for the privileged information (both relevancy and that the material "goes to the heart of the matter") and an inability to obtain the information from another source (a requirement on the party seeking the information to first exhaust those alternative sources). See Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 438 (10th Cir. 1977). The court then must balance those consequences of granting disclosure against the qualified First Amendment privilege. See id.
In Silkwood v. Kerr-McGee Corp., 563 F.2d 433 (10th Cir. 1977), a documentary film maker investigating the death of Karen Silkwood was subpoenaed to give a deposition in a civil rights suit brought by Silkwood's estate against Silkwood's former employer. During pretrial proceedings the district court denied the non-party, film maker's motion for a protective order. At the deposition, the film maker refused to disclose information he felt was confidential. The Silkwood Court found that the documentary film maker could claim the reporter's privilege and seek protective relief, even though he was not a salaried newspaper reporter. The court remanded the case to the district court to determine whether the privilege shielded disclosure, by applying a four factor balancing test: 1) whether the party seeking information has independently attempted to obtain the information elsewhere and has been unsuccessful; 2) whether the information goes to the heart of the matter; 3) whether the information is relevant; 4) the type of controversy. Id. at 438; see also Grandbouche v. Clancy, 825 F.2d 1463, 1466 (10th Cir. 1987) (discussing the four-factor balancing test in the context of a First Amendment right of assembly privilege to not disclose information).
The United States District Court for the District of Colorado applied Silkwood's four-factor test in Re/Max Int'l Inc. v. Century 21 Real Estate Corp., 846 F. Supp. 910 (D. Colo. 1994). Century 21 brought a variety of claims, including unfair competition, based upon Re/Max's nationwide advertising campaign. A local newspaper published an article discussing Re/Max's challenge to Century 21 to determine who was the best real estate company. Century 21 subpoenaed the reporter merely to authenticate statements appearing in the article. The Court quashed the subpoena because Century 21 failed to show the information sought was substantially relevant to a central issue in the case, and that the information could not be obtained from other reasonable sources. The evidence sought from the reporter -- to confirm that published statements had been uttered by a previous witness in the case, to impeach his deposition testimony -- was deemed not centrally relevant and was also cumulative of other evidence in the record.
The Tenth Circuit affirmed the United States District Court for the District of Colorado's ruling granting the reporters' motion to quash subpoena in Donohue v. Hoey, 109 Fed. Appx. 340 (10th Cir. 2004). Applying Silkwood, the "the district court made the express 'finding and conclusion that the plaintiffs have failed to make the showing necessary to overcome the privilege relied on by the motions.'" Id. at 354 (citing Mar. 19, 2002, Order). The Tenth Circuit affirmed the district court's order, finding that the plaintiffs failed to "explain how the district court's application of Silkwood was an abuse of discretion". Id.
The United States District Court for the District of Kansas has applied the reporter's privilege to a criminal case. In United States v. Foote, 30 Media L. Rep. 2469, 2002 WL 1822407 (D. Kan. Aug. 8, 2002), the defendant was accused of trafficking and attempted trafficking in counterfeit trademark merchandise. The government issued a subpoena to a reporter who had written two articles about the seizing of the alleged counterfeit merchandise, and sales of counterfeit merchandise, in which he quoted or attributed numerous statements to the defendant. Id. at *1. The court stated that "[a]lthough Silkwood was decided in the context of civil litigation, the Court sees no legally-principled reason for drawing a distinction between civil and criminal cases when considering whether the reporter's interest in confidentiality should yield to the moving party's need for probative evidence." Id. at *2. Applying the Silkwood balancing test, the Foote Court denied the reporter's motion to quash subpoena. The court found that the reporter "appears to be the only person who can confirm that the statements published were made by Defendant and thus the only source of the information sought[,]" and that the "alleged admissions" made by the Defendant in the published article "are critical to the government's prosecution as they aid in establishing Defendant's knowledge and intent, which are elements that must be proven". Id. at *2-3.