Search the Reporter's Privilege Compendium

Thomas B. Kelley (tkelley@faegre.com; (303) 607-3631)

Steven D. Zansberg (szansberg@faegre.com; (303) 607-3683)

Christopher P. Beall (cbeall@faegre.com; (303) 607-3656)

Jennifer Daniel Collins (jcollins@faegre.com; (303) 607-3611)

Adam Platt (aplatt@faegre.com; (303) 607-3810)

Faegre & Benson LLP

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Denver, Colorado 80203

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10th Cir.

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.

10th Cir.

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 Lower court cases within the Tenth Circuit have extended the privilege to other unpublished information, including non-confidential material, see infra Section III.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.

10th Cir.
10th Cir.


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.

10th Cir.

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.

10th Cir.
10th Cir.

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.

10th Cir.

In an unpublished decision, the United States District Court for the District of Colorado quashed a grand jury subpoena that had been issued on an UPI reporter as part of a federal investigation to determine whether a particular Secret Service agent had "leaked" a photograph obtained from the home of John Hinckley's parents to the press. In re Grand Jury Subpoenas, 8 Media L. Rptr. (BNA) 1418, 1419 (D. Colo. 1982). Although the District Court did not mention the Silkwood ruling, it found that the information sought did not go "to the heart of any pending criminal investigation," and therefore did not overcome the reporter's First Amendment privilege.

10th Cir.

There is no case law addressing this issue.

10th Cir.