Alaska

Reporter's Privilege Compendium

Author

John McKay, Esq.

Law Offices of D. John McKay

117 East Cook Avenue

Anchorage, AK 99501
907-274-3154
mckay@alaska.net

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I. Introduction: History & Background

There is no definitive or authoritative law in Alaska concerning a news reporter's privilege. There are no significant appellate court rulings on the issue. There is a mediocre shield law that is of little consequence. However, the privilege has been asserted in a number of trial court cases over the past 40 years. In virtually all of these, the press interests have been represented by the author of this outline, and in none of them has a reporter been compelled to testify. This is true of both state and federal courts, civil and criminal cases (as well as at least one grand jury proceeding), and in cases not involving confidential sources as well as ones that did. In a much larger number of cases subpoenas or informal demands for testimony or work product of reporters have been successfully addressed without having to present the matter to a court. In at least one case, attorney fees were awarded to the press. The author is unaware of any case in which a reporter has been jailed or fined for failing to testify or produce documents.

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II. Authority for and source of the right

Alaska's appellate courts have not had occasion to rule definitively on the existence or scope of a news reporter's privilege. The privilege has been asserted, and acknowledged, in a number of trial court cases, and in virtually all of these, the press interest has been represented by the author of this outline. There is no explicit reference to a reporter's privilege in the Alaska Constitution. There are several Alaska Supreme Court opinions interpreting Alaska's analogue to the First Amendment, Article I, section 5, of the state constitution, as providing greater protection for freedom of expression than its federal counterpart, though never in this context. The state constitution, therefore, should always be cited as an alternate basis for the privilege to preserve this issue. There is a state statute that addresses a reporter's privilege, see AS 09.25.300 - 390, and through Evidence Rule 501, court rules recognize and implement this and other statutory privileges. This statute was enacted in 1967, as an express change in court rules, to create an evidentiary privilege for “newspapermen.” Allred v. State, 554 P.2d 411, 415 (Alaska 1976). The focus on Allred was a psychotherapist-patient privilege, and a statute relating to this passed the same year as the reporter’s privilege statute. In comparing the two, a dissenting opinion in Allred noted that the reporter’s privilege statute’s provisions “do not prohibit a reporter from revealing the source of information and is limited to regulating the procedure under which a court is to determine whether to require the reporter to testify. While some aspects of the statute create a substantive right of the reporter, the provisions weigh heavily on the procedural rather than the substantive side” of the line distinguishing these. Id. at 423-424. The statute's substantive provisions do not provide particularly strong protection, but it contains some useful procedural provisions and should be cited for this reason. While the statute is sometimes noted, the principal source of legal authority that has been relied upon in asserting, and recognizing, a privilege in Alaska courts to date has been the qualified constitutional privilege under the First Amendment recognized by the majority in Branzburg, and subsequent cases.

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A. Shield law statute

Alaska has a shield law, presently codified as AS 09.25.300 - .390. (The shield law, which encompasses public officials as well as reporters, was codified as AS 09.25.150 - .220 until it was re-numbered in 1994.) The shield law was enacted in 1967. There is no significant legislative history, nor have there been significant amendments to it. The text of the statute is as follows:

Alaska Statutes, Title 09, Chapter 25.

Article 3. Privilege of Public Officials and Reporters

AS 09.25.300. Claiming of Privilege By Public Official or Reporter.

Except as provided in AS 09.25.300 - 09.25.390, a public official or reporter may not be compelled to disclose the source of information procured or obtained while acting in the course of duties as a public official or reporter.

AS 09.25.310. Challenge of Privilege Before Superior or Supreme Court.

(a) When a public official or reporter claims the privilege in a cause being heard before the supreme court or a superior court of this state, a person who has the right to question the public official or reporter in that proceeding, or the court on its own motion, may challenge the claim of privilege. The court shall make or cause to be made whatever inquiry the court thinks necessary to a determination of the issue. The inquiry may be made instanter by way of questions put to the witness claiming the privilege and a decision then rendered, or the court may require the presence of other witnesses or documentary showing or may order a special hearing for the determination of the issue of privilege.

(b) The court may deny the privilege and may order the public official or the reporter to testify, imposing whatever limits upon the testimony and upon the right of cross-examination of the witness as may be in the public interest or in the interest of a fair trial, if it finds the withholding of the testimony would

(1) result in a miscarriage of justice or the denial of a fair trial to those who challenge the privilege; or

(2) be contrary to the public interest.

AS 09.25.320. Challenge of Privilege Before Other Bodies.

(a) This section is applicable to a hearing held under the laws of this state

(1) before a court other than the supreme or a superior court;

(2) before a court commissioner, referee, or other court appointee;

(3) in the course of legislative proceedings or before a commission, agency, or committee created by the legislature;

(4) before an agency or representative of an agency of the state, borough, city or other municipal corporation, or other body; or

(5) before any other forum of this state.

(b) If, in a hearing, a public official or a reporter should refuse to divulge the source of information, the agency body, person, official, or party seeking the information may apply to the superior court for an order divesting the official or reporter of the privilege. When the issue is raised before the supreme or a superior court, the application must be made to that court.

(c) Application for an order shall be made by verified petition setting out the reasons why the disclosure is essential to the administration of justice, a fair trial in the instant proceeding, or the protection of the public interest. Upon application, the court shall determine the notice to be given to the public official or reporter and fix the time and place of hearing. The court shall make or cause to be made whatever inquiry the court thinks necessary, and make a determination of the issue as provided for in AS 09.25.310.

AS 09.25.330. Order Subject to Review.

An order of the superior court entered under AS 09.25.300 - 09.25.390 shall be subject to review by the supreme court, by appeal or by certiorari, as the rules of that court may provide. During the pendency of the appeal, the privilege shall remain in full force and effect.

AS 09.25.340. Extent of Privilege.

When a public official or reporter claims the privilege conferred by AS 09.25.300 - 09.25.390 and the public official or reporter has not been divested of the privilege by order of the supreme or superior court, neither the public official or reporter nor the news organization with which the reporter was associated may thereafter be permitted to plead or prove the sources of information withheld, unless the informant consents in writing or in open court.

AS 09.25.350. Application of Privilege in Other Courts.

AS 09.25.300 - 09.25.390 also apply to proceedings held under the laws of the United States or any other state where the law of this state is being applied.

AS 09.25.360. AS 09.25.300 - 09.25.390 Do Not Abridge Other Privileges.

AS 09.25.300 - 09.25.390 may not be construed to abridge any of the privileges recognized under the laws of this state, whether at common law or by statute.

AS 09.25.390. Definitions For AS 09.25.300 - 09.25.390.

In AS 09.25.300 - 09.25.390, unless the context otherwise requires,

(1) "news organization" means

(A) an individual, partnership, corporation, or other association regularly engaged in the business of

(i) publishing a newspaper or other periodical that reports news events, is issued at regular intervals, and has a general circulation;

(ii) providing newsreels or other motion picture news for public showing; or

(iii) broadcasting news to the public by wire, radio, television, or facsimile;

(B) a press association or other association of individuals, partnerships, corporations, or other associations described in (A)(i), (ii), or (iii) of this paragraph engaged in gathering news and disseminating it to its members for publication;

(2) "privilege" means the conditional privilege granted to public officials and reporters to refuse to testify as to a source of information;

(3) "public official" means a person elected to a public office created by the Constitution or laws of this state, whether executive, legislative, or judicial, and who was holding that office at the time of the communication for which privilege is claimed;

(4) "reporter" means a person regularly engaged in the business of collecting or writing news for publication, or presentation to the public, through a news organization; it includes persons who were reporters at the time of the communication, though not at the time of the claim of privilege.

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B. State constitutional provision

The Alaska Constitution has no express shield law provision, and the Alaska courts have not had occasion to construe article I, section 5 of the Alaska Constitution, the state's analogue to the First Amendment, or other constitutional provisions, in light of a reporter's privilege claim.

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C. Federal constitutional provision

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege (though the issue has been raised as a point on appeal once or twice). However, a number of trial courts have applied a qualified reporter's privilege based on the First Amendment to the United States Constitution. In each case where it has been addressed, the court has accepted the privilege. See, e.g., Nebel v. Mapco Petroleum, 10 BNA Media L.Rptr. 1871, 1872 (Alas. Super. Ct., 4th Jud. Dist. 1984) (recognizing reporter's privilege, and quashing subpoena pursuant thereto, based on First Amendment and state shield law, and awarding attorney's fees), State v. Pruett, Case No. 3AN-84-3887 Cr., 11 BNA Media L.Rptr. 1968 (Alas. Super. Ct., 3d Jud. Dist., 1984), aff'd. Pruett v. State, MO&J No 1474 (Alaska App., September 2, 1987)[N.B. Alaska court rules generally do not allow reliance on MO&Js] (court quashed subpoena issued on behalf of criminal defendant, finding that defendant had not overcome press's qualified constitutional privilege) U.S. v. Smith, (federal court tax evasion case with pro per defendant); see also, Management Information Technologies, Inc. v. Alyeska Pipeline Services Co., 151 F.R.D. 471 (D.D.C. 1993) (a case brought by oil industry critic Charles Hammel against oil company consortium, security firm and others who spied on him and set up phony environmental law firm to entrap him, tried in the District of Columbia, with press interests represented by the author, after subpoena to a former Anchorage Daily News reporter in connection with reporting done while in Alaska). Ellis v. Coleman, Case No. 95A-0367 Civ. (personal injury suit in U.S. Dist. Ct.); State v. Kelly, (first reporter's privilege case in Alaska, in 1978, criminal fraud case); Dansereau v. Coghill, Case No. 3AN-94-10948 Civ. (election related litigation), State v. Tetlow, Case No. 3AN-S01-3356 Cr.; In The Matter of the January 1996 Grand Jury; Case No. 4FA-S96-45 Cr. (4th Jud. Dist., Fairbanks) (grand jury subpoena).

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D. Other sources

Alaska Rules of Court, through Evidence Rule 501, recognize application of statutory privileges. The reporter's privilege is not expressly addressed.

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III. Scope of protection

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A. Generally

Since the appellate courts have yet to squarely address the existence or scope of a reporter's privilege, it is not meaningful to make generalizations about how "strong" or "weak" it is. On the one hand, it is not clearly established or accepted; on the other hand, nearly every trial court judge presented with the issue has recognized and applied the privilege, and reporters have not been compelled to testify or produce notes.

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B. Absolute or qualified privilege

No Alaska statute or court decision has recognized an absolute reporter's privilege. The 50-year-old shield law suggests that the statutory privilege could be overcome by a showing that disclosure is essential to the administration of justice, a fair trial in the instant proceeding, or the protection of the public interest. Because of the vague and broad standards qualifying the statutory privilege, the press in Alaska has principally relied instead on the qualified constitutional privilege, requiring a showing that the information sought is crucial or goes to the heart of the case and is not available from another source that does not enjoy a First Amendment privilege.

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C. Type of case

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1. Civil

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, but anecdotal experience in the trial courts to date has not demonstrated that the reporter's privilege will differ if the reporter is subpoenaed in a civil case, as opposed to a criminal case. Courts still look at whether the information sought is crucial to the subpoenaing party's case, and whether alternate means of obtaining the information sought have been exhausted.

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2. Criminal

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, but anecdotal experience in the trial courts to date does not indicate that courts are less willing to quash subpoenas in criminal cases than in civil cases. There is no indication that the courts give special consideration to prosecutor's subpoenas. Nor does it appear that courts are unwilling to quash subpoenas from criminal defendants out of concern for Sixth Amendment rights. In two illustrative cases, trial courts quashed subpoenas issued to news reporters by top criminal defense attorneys in the state. See State v. Pruett, Case No. 3AN-84-3887 Cr., 11 BNA Media L.Rptr. 1968 (Alas. Super. Ct., 3d Jud. Dist., 1984), aff'd. Pruett v. State, MO&J No 1474 (Alaska App., September 2, 1987)[N.B. Alaska court rules generally do not allow reliance on MO&Js]; State v. Tetlow, Case No. 3AN-S01-3356 Cr. (Alas. Super. Ct., 3d Jud. Dist., 2001); see also, State v. Harry Neil Kelly (Alas. Super. Ct., 3d Jud. Dist., 1978).

Pruett was a felony assault trial of a 49-year-old woman who had befriended and then victimized and beat a 70-year-old woman who had been taken in to live with her family as a housekeeper. The Anchorage Daily News, through the author, moved to quash a defense subpoena to its reporter, Larry Campbell, who had written news articles based on interviews he conducted with the defendant. Defense counsel had successfully argued an important Sixth Amendment Confrontation Clause case before the United States Supreme Court, Davis v. Alaska, 15 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). He argued to the trial court in Pruett that in the context of a criminal prosecution, any reporter's privilege must yield to the constitutional right to cross-examine without restriction based upon the Confrontation Clause. The author, as counsel for the newspaper, argued in response that in Davis v. Alaska the Confrontation Clause was balanced against a statutory prohibition against allowing juveniles to testify, whereas in the Pruett case, the Confrontation Clause was being balanced against a reporter's privilege that also derived from the Constitution—and specifically the First Amendment—not simply from a statute. The trial court agreed and quashed the subpoena. Pruett was convicted, and filed an appeal on numerous points. The Court of Appeals held that the trial court did not err in quashing the subpoenas, and specifically held that the testimony sought would have been collateral, in some instances was an improper attempt to impeach by extrinsic evidence, and was not critical to ("hardly constituted the 'lynch pin' of) the case. See MO&J at 17.

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3. Grand jury

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Given the nature of grand jury proceedings, and particularly the fact the cases consolidated in Branzburg all arose from a grand jury setting, it is predictable that courts might be more likely to enforce a subpoena in this context. However, anecdotal experience indicates that courts are willing to recognize a reporter's privilege, and apply the normal tests to quash a subpoena where the circumstances warrant. See In The Matter of the January 1996 Grand Jury; Case No. 4FA-S96-45 Cr. (4th Jud. Dist. (Fairbanks), 1996)

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D. Information and/or identity of source

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Trial courts judges have recognized the privilege as protecting the identity of a source, as well as information that would identify a source. The state's shield law provides that a reporter may not be compelled to disclose the source of information procured or obtained while acting in the course of duties as a reporter, unless the subpoenaing party makes the showing required by the statute.

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E. Confidential and/or nonconfidential information

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Both state and federal trial courts have, however, and have recognized a qualified constitutional reporter's privilege, and quashed subpoenas, without regard to whether the information sought was confidential or non-confidential. The shield law speaks only to protection against compelled disclosure of the source of information.

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F. Published and/or non-published material

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Both state and federal trial courts have, however, and have recognized a qualified constitutional reporter's privilege, and quashed subpoenas for unpublished material such as reporter's notes and film outtakes. Trial courts have also quashed subpoenas for testimony, even when unpublished material is not at issue, though as a practical matter the press does not always object to verifying the accuracy of published material.

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G. Reporter's personal observations

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and the trial courts have not specifically addressed the question of whether there is any exception to the privilege in the case of reporters who are eyewitnesses to a crime that is the subject of the news article in question.

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H. Media as a party

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and the trial courts have not specifically addressed the issue of whether the privilege applies differently in cases in which the media is a party or is not.

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I. Defamation actions

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IV. Who is covered

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A. Statutory and case law definitions

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1. Traditional news gatherers

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a. Reporter

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and the trial courts have not had occasion to address the definition of a "reporter" for purposes of applying the privilege. The shield law defines "reporter" as "a person regularly engaged in the business of collecting or writing news for publication, or presentation to the public, through a news organization; it includes persons who were reporters at the time of the communication, though not at the time of the claim of privilege." AS 09.25.390(4). It further defines "news organization," as noted in section IV.A.1.e, infra.

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b. Editor

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c. News

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d. Photo journalist

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e. News organization/medium

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and the trial courts have not had occasion to address the definition of "media" or a "news organization" for purposes of applying the privilege. The shield law, in AS 09.25.390(1), defines "news organization" as:

(A) an individual, partnership, corporation, or other association regularly engaged in the business of

(i) publishing a newspaper or other periodical that reports news events, is issued at regular intervals, and has a general circulation;

(ii) providing newsreels or other motion picture news for public showing; or

(iii) broadcasting news to the public by wire, radio, television, or facsimile;

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2. Others, including non-traditional news gatherers

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and the trial courts have not had occasion to address whether the qualified constitutional privilege that has been recognized and applied by various judges applies to non-traditional newsgatherers, authors, scholars, freelancers, student journalists, librarians, academic researchers, bloggers, or others. Courts have had occasion to extend the privilege to former reporters with respect to stories they worked on or published while employed by a news organization, and the shield law specifically defines reporter to include this situation.

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B. Whose privilege is it?

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Trial courts that have dealt with these issues have not expressed addressed whether the privilege belongs to the source or reporter, or both, or to the reporter or employer, or both. However, trial court rulings have implicitly recognized that both could assert the privilege. Cases have involved assertions of the privilege by a press organization on behalf of a reporter or former reporter, and by a reporter and news organization represented by separate counsel, and by a reporter claiming a privilege when the source of the information is known and a party to the litigation, but none of the cases have hinged on these distinctions. In dicta in a case focused on a different privilege, a dissenting judge noted that the reporter’s privilege statute’s provisions “do not prohibit a reporter from revealing the source of information.” Allred v. State, 554 P.2d 411, 423-24 (Alaska 1976) The shield law provides that when a reporter claims the privilege conferred by AS 09.25.300 - 09.25.390 and the reporter has not been divested of the privilege by order of the supreme or superior court, neither the reporter nor the news organization with which the reporter was associated may thereafter be permitted to plead or prove the sources of information withheld, unless the informant consents in writing or in open court.

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V. Procedures for issuing and contesting subpoenas

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A. What subpoena server must do

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1. Service of subpoena, time

Court rules do not contain any special rules or procedures with respect to subpoenaing members of the news media. Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and neither they nor the trial courts have had occasion to address this issue.

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2. Deposit of security

Court rules do not contain any special rules or procedures with respect to subpoenaing members of the news media. No law requires a subpoenaing party to deposit any security to procure testimony or materials from a reporter. Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and neither they nor the trial courts have had occasion to address this issue.

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3. Filing of affidavit

Court rules do not contain any special rules or procedures with respect to subpoenaing members of the news media. No law specifically requires a subpoenaing party to make any special affidavit in order to seek testimony or materials from a reporter. Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and neither they nor the trial courts have had occasion to address this issue.

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4. Judicial approval

Court rules do not contain any special rules or procedures with respect to subpoenaing members of the news media. No law requires a subpoenaing party to obtain prior approval of a judge or magistrate before subpoenaing a reporter. Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and neither they nor the trial courts have had occasion to address this issue.

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5. Service of police or other administrative subpoenas

No special rules are known to apply to the use and service of police or fire or other administrative subpoenas.

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B. How to Quash

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1. Contact other party first

There is no legal requirement that the subpoenaing party be contacted prior to a motion to quash. It is good practice to do so, however, for several reasons. In most instances, the subpoenaing party will be unaware of the reporter's privilege your client will assert, and especially of tests to be met for overcoming a qualified privilege. Most subpoena issues will "go away" in the ordinary course without need for a motion to quash. If it knows it will have to fight on this issue that is collateral to its case, the subpoenaing party is often willing to defer the matter initially. Then, most often, it becomes moot because almost all cases, civil or criminal, are resolved without actually coming to trial. Even if the subpoena will not "go away," you will want to know more about the subpoenaing party's case, since by definition you will be less familiar than the parties with their litigation, and the reasons why the subpoenaed information might be sought. It is generally not a good idea for the subpoenaed reporter to communicate with counsel issuing the subpoena, since such communications may produce legal and/or factual waiver issues.

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2. Filing an objection or a notice of intent

There is no legal requirement in Alaska that a notice of intent to quash be filed before filing a motion to quash, nor is there any practice of doing so, nor are there other procedural steps required or recommended prior to moving to quash.

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3. File a motion to quash

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a. Which court?

The motion to quash ordinarily should be filed in the same court that is hearing the case at issue.

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b. Motion to compel

Because so few cases, criminal or civil, ever actually come to trial, the time and expense of filing a motion to quash can be avoided in most cases by letting the case run its course without dealing prematurely with the subpoena issue. It is generally more productive and cost-effective to hold off on a motion to quash and let the subpoenaing party know that the reporter will not provide testimony or notes voluntarily. In most cases, making clear that a motion to compel will be necessary, and that the subpoenaing party will have to formally address the relevant legal and factual issues in order to obtain the desired information, will enable the press to defer the issue until it becomes moot. The subpoenaing party most often does not wish to "do battle with the press," and may even profess support for the First Amendment values being asserted, but in any event will generally not want the distraction and cost of dealing with this collateral issue at a time when efforts are more productively focused on other aspects of the party's case, or other cases. The reporter or media organization gets the benefit of avoiding legal fees, which it always wants and often appreciates.

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c. Timing

How soon the press should file a motion to quash after receiving a subpoena is a judgment call, dictated largely by the circumstances. It is not governed by specific legal requirements, and whether and when to do it involves strategy questions discussed in subsections B.1 and B.3.b above. Most often, the whole issue can be avoided, particularly when the subpoena is issued well in advance of a trial, or before witnesses are called who may represent an alternate means of procuring essentially the same information as is sought from a reporter. In many instances, particularly pre-trial, it may be more advantageous to do nothing except discuss the matter with counsel for the subpoenaing party. This will put that party in the position of having to decide whether to spend the time and effort that will be needed to make a motion to compel and fight this issue—an issue important to the press, but collateral to the party's main concerns in its litigation. If the subpoena is issued at or near the time of trial, a motion to quash is more often preferable.

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d. Language

There is no stock or preferred language that should be included in a motion to quash, but it is best to refer to the motion being brought pursuant to article I, section 5, of the state constitution, and AS 09.25.300-390, as well as the First Amendment, both to preserve these issues in the event of an appeal, and because the statute may prove useful procedurally even though it is of relatively little value substantively.

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e. Additional material

Because Alaska's appellate courts have yet to recognize a reporter's privilege or otherwise address it in any significant way, it is important that in any case in which a motion to quash is filed, or a motion to compel is defended, the press create a record that will provide the trial judge and any reviewing court with a basis for understanding and applying the privilege sought. This can be done most effectively, in the opinion of the author, through affidavits of professional journalists, including reporters and editors with relevant knowledge and experience, or even counsel, that can support the arguments being made in the accompanying legal memorandum. Make the judge understand why this privilege is important to the press, why broader public interests are being served by this seemingly parochial effort to be "treated differently," how this discrete instance should be viewed as part of an ongoing effort to involve the press in matters that reporters are supposed to be writing about and the problems this poses for your client's news operation, public perceptions of objectivity, and so forth. Don't assume the judge (or reviewing court) is aware of the principles that you believe underlie the privilege, or understands why they are important, or understands how your news operation works, or the impact that having to constantly respond to similar subpoenas will have.

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4. In camera review

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a. Necessity

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and the shield law does not direct a court to conduct an in camera review of materials or interview with the reporter prior to deciding a motion to quash, nor has there been a practice of doing so in the trial courts that have addressed privilege claims.

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Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and the shield law does not directly require or address in camera review. Experience with trial courts addressing privilege issues does not include instances of demands for, or consent to, in camera review. The shield law provides that an order of the superior court entered under AS 09.25.300 - 09.25.390 shall be subject to review by the supreme court, by appeal or by certiorari, as the rules of that court may provide, and that during the pendency of the appeal, the privilege shall remain in full force and effect.

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c. Consequences of refusing

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5. Briefing schedule

There is no special schedule set forth in law or court rules for briefing a motion to quash. If the press is filing a motion at a time when an answer is needed immediately, or in any event before the normal time for briefing an ordinary motion and obtaining a ruling on it will have elapsed, the motion to quash should be accompanied by a motion for expedited consideration pursuant to Civil Rule 77(g), and the accompanying declaration should reflect that other counsel have been consulted about whether expedited consideration is opposed or not.

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6. Amicus briefs

Amicus briefs are routinely accepted by the courts, although they are rarely filed at the trial court level. If a subpoena issue were to be presented to an appellate court as a point on appeal, it is possible that the Alaska Press Club, the Alaska Newspaper Association, or another press organization might wish to file an amicus brief. It is very unlikely that a press organization, other than one directly involved as the recipient of a subpoena or employer of the recipient, would become involved as an amicus at the trial court level for a number of reasons, primarily including the expense of doing so, the lack of precedential value of a superior court ruling, and the multiplicity of non-related issues.

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VI. Substantive law on contesting subpoenas

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A. Burden, standard of proof

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and the trial courts have not specifically addressed this issue. In those trial court proceedings where the qualified constitutional reporter's privilege has been asserted, it has been assumed that to overcome the privilege the subpoenaing party must make a showing that the information sought is crucial to, or goes to the heart of, its case, and that this information is unavailable from other sources not protected by this First Amendment privilege. The shield law, if applicable, requires the applicant for divestiture of the privilege to show, usually by verified petition, reasons why the disclosure is essential to the administration of justice, a fair trial in the instant proceeding, or the protection of the public interest.

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B. Elements

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1. Relevance of material to case at bar

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. In those trial court proceedings where the qualified constitutional reporter's privilege has been asserted, it has been assumed that to overcome the privilege the subpoenaing party must make a showing that the information sought is crucial to, or goes to the heart of, its case. The shield law, if applicable, likewise requires the applicant for divestiture of the privilege to show why the disclosure is "essential" to the administration of justice, a fair trial in the instant proceeding, or the protection of the public interest.

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2. Material unavailable from other sources

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. In those trial court proceedings where the qualified constitutional reporter's privilege has been asserted, it has been assumed that to overcome the privilege the subpoenaing party must make a showing that it has exhausted other means of obtaining the information sought, and that this information is unavailable from other sources not protected by this First Amendment privilege. The shield law does not expressly address this issue.

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a. How exhaustive must search be?

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. In those trial court proceedings where the qualified constitutional reporter's privilege has been asserted, courts have recognized and applied this privilege without articulating a standard for what constitutes exhaustion.

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b. What proof of search does a subpoenaing party need to make?

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. In a number of trial court proceedings, the qualified constitutional privilege has been recognized and applied to quash a subpoena, implicitly accepting arguments that the subpoenaing party failed to demonstrate that it had sufficiently searched for the material outside of subpoenaing the reporter.

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c. Source is an eyewitness to a crime

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Those trial court that have recognized and applied the qualified constitutional reporter's privilege have not to date specifically decided that information obtained from a source who witnessed or participated in a crime is by definition "unavailable" from any other source, or is unique as eyewitness evidence, and in fact in some cases quashed subpoenas involving eyewitness or participant sources. See, e.g., State v. Pruett, Case No. 3AN-84-3887 Cr., 11 BNA Media L.Rptr. 1968 (Alas. Super. Ct., 3d Jud. Dist., 1984).

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3. Balancing of interests

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. The qualified constitutional reporter's privilege has been recognized to date by a number of trial courts, and while the basis for the courts' rulings do not clearly articulate that they have balanced competing interests, or the weight given to competing interests, they have generally been presented with arguments that the First Amendment interests of the press must be weighed against whatever interests are being asserted by the subpoenaing party, and that where the countervailing interests are not constitutional in nature, the First Amendment interests must prevail. See, e.g., State v. Pruett, Case No. 3AN-84-3887 Cr., 11 BNA Media L.Rptr. 1968 (Alas. Super. Ct., 3d Jud. Dist., 1984). Defense counsel in Pruett, which was a felony prosecution, had successfully argued an important Sixth Amendment Confrontation Clause case before the United States Supreme Court, Davis v. Alaska, 15 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974). He argued to the trial court in Pruett that in the context of a criminal prosecution, any reporter's privilege must yield to the constitutional right to cross-examine without restriction based upon the Confrontation Clause. The author, as counsel for the newspaper, argued in response that in Davis v. Alaska the Confrontation Clause was balanced against a statutory prohibition against allowing juveniles to testify, whereas in the Pruett case, the Confrontation Clause was being balanced against a reporter's privilege that also derived from the Constitution—and specifically the First Amendment—not simply from a statute. The trial court agreed and quashed the subpoena. In cases where the state shield law is being applied, the statute directs that the court take into account whether disclosure is essential to the administration of justice, a fair trial in the instant proceeding, or the protection of the public interest.

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4. Subpoena not overbroad or unduly burdensome

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5. Threat to human life

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and trial courts applying the privilege have not had occasion to do so in the context of a claim that the matter subpoenaed involves a threat to human life.

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6. Material is not cumulative

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. The same rules of evidence precluding submission of evidence that would be cumulative provide an additional or alternate grounds for quashing a subpoena, and an argument that dovetails with the constitutional requirement that the information sought not unavailable from other sources.

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7. Civil/criminal rules of procedure

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. The same rules of criminal or civil procedure protecting third parties from frivolous, overly broad or unduly burdensome subpoenas in other contexts would apply to press subpoenas as well, and should be asserted along with the claim of a constitutional privilege as additional and alternate grounds for quashing a subpoena.

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8. Other elements

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C. Waiver or limits to testimony

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1. Is the privilege waivable?

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2. Elements of waiver

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a. Disclosure of confidential source's name

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b. Disclosure of non-confidential source's name

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c. Partial disclosure of information

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d. Other elements

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3. Agreement to partially testify act as waiver?

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Various trial courts have recognized and applied the qualified constitutional privilege, and in doing so have not articulated circumstances constituting waiver of the privilege or standards for determining that the privilege has been deemed waived. In some instances, by agreement of the parties and counsel for the subpoenaed reporter, a reporter has confirmed that the story as published is accurate. The agreement assumes that the reporter will not be subject to cross-examination going beyond this confirmation. Further, we would agree only to have the reporter confirm accuracy, rather than truth, since the latter is likely to be outside his or her personal knowledge. Courts have not had occasion to rule on whether partial testimony to confirm accuracy or truth of a story, in the absence of such agreement, would constitute a waiver of the privilege. In a 2018 legislative ethics committee hearing, a reporter effectively waived the right to assert privilege and did not oppose being called as a witness, in a unique circumstance where she was the central witness because the alleged ethics violation was the legislator’s disclosure to her of confidential information in the course of an interview. after which the reporter identified the legislator in an attempt to verify the information provided. An implicit waiver of any applicable privilege was assumed by all.

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VII. What constitutes compliance?

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A. Newspaper articles

Under federal and state evidence rules, newspapers are generally considered self-authenticating, and in any event, if all that is sought is confirmation that a particular article actually appeared in the newspaper, a reporter is not needed—and generally should not be produced. In such instances, if the parties are not relying on self-authentication, a simple affidavit from the newspaper's librarian or records custodian will ordinarily suffice. If the parties are not willing to settle for this, it is a sign that what they really want is more than authentication.

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B. Broadcast materials

If all that is sought is confirmation that a particular new story actually aired on a broadcast station, a reporter or other news person is not needed—and generally should not be produced. In such instances, if the parties are not relying on self-authentication, a simple affidavit from the records custodian, or one who logs traffic for the station, will ordinarily suffice. If the parties are not willing to settle for this, it is a sign that what they really want is more than authentication.

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C. Testimony vs. affidavits

In some instances, by agreement of the parties and counsel for the subpoenaed reporter, a reporter has confirmed through an affidavit that the story as published is accurate. The agreement assumes that the reporter will not be subject to cross-examination going beyond this confirmation, and for this reason it is important that the agreement involve all counsel, not only counsel for the subpoenaing party. It is usually best to have the reporter confirm only accuracy, rather than truth, since the latter is likely to be outside his or her personal knowledge. Such an affidavit is occasionally used for trial, to avoid calling a witness, and more often used during the discovery phases of a case to resolve a potential dispute over reporter's privilege.

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D. Non-compliance remedies

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1. Civil contempt

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a. Fines

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b. Jail

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2. Criminal contempt

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3. Other remedies

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VIII. Appealing

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A. Timing

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1. Interlocutory appeals

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Various trial courts have recognized and applied the qualified constitutional privilege in a number of cases, and in none of these has testimony or production of documents been compelled. The shield law provides, in AS 09.25.330, that an order of the superior court entered under AS 09.25.300 - 09.25.390 shall be subject to review by the supreme court, by appeal or by certiorari, as the rules of that court may provide. This law was enacted when the supreme court was the state's only appellate court. It may well provide a basis for a press appeal directly to the supreme court, even though there is now an intermediate court of appeals for criminal cases only. In practice, in the isolated case where a subpoena has been quashed by the trial court in a criminal case, the issue has been raised as part of a post-trial appeal to the court of appeals, as one of the points on appeal filed by the convicted defendant, rather than through direct resort to the supreme court. The court of appeals has not addressed the effect, if any, of the shield law's language on its jurisdiction over this matter.

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2. Expedited appeals

Alaska's appellate court rules establish procedures for expedited appeals, but set forth no special considerations that affect news media subpoenas. Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Various trial courts have recognized and applied the qualified constitutional privilege in a number of cases, and in none of these has testimony or production of documents been compelled, so the issue of expedited review for the press has not arisen. Parties to litigation whose subpoenas have been quashed to date have not sought expedited review of these rulings.

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B. Procedure

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1. To whom is the appeal made?

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, or matters pertaining thereto such as appropriate procedures for appeals. Various trial courts have recognized and applied the qualified constitutional privilege in a number of cases, and in none of these has testimony or production of documents been compelled. The shield law provides, in AS 09.25.330, that an order of the superior court entered under AS 09.25.300 - 09.25.390 shall be subject to review by the supreme court, by appeal or by certiorari, as the rules of that court may provide. This law was enacted when the supreme court was the state's only appellate court. It may well provide a basis for a press appeal directly to the supreme court, even though there is now an intermediate court of appeals for criminal cases only. In practice, in the isolated case where a subpoena has been quashed by the trial court in a criminal case, the issue has been raised as part of a post-trial appeal to the court of appeals, as one of the points on appeal filed by the convicted defendant, rather than through direct resort to the supreme court. The court of appeals has not addressed the effect, if any, of the shield law's language on its jurisdiction over this matter. AS 09.25.320 provides that if a reporter should refuse to divulge the source of information in a hearing before a court other than the supreme or a superior court, or before a court appointee, in the course of a legislative hearing, before an agency or representative of an agency of the state, borough, city or other municipal corporation, or other body, or before any other forum of the state, the party seeking divestiture of the privilege should apply for an order to this effect from the superior court.

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2. Stays pending appeal

Perhaps the most useful section of the state's shield law is AS 09.25.330, which provides in pertinent part that during the pendency of an appeal concerning an order entered upholding or denying a claim of reporter's privilege, the privilege shall remain in full force and effect. Should the press for some reason be seeking prompt review, the Supreme Court has recognized that compelling reasons exist for accepting review in cases posing the danger of immediate encroachment on First Amendment rights. Hanby v. State, 479 P.2d 486 (Alaska 1970). Extraordinary legal remedies to protect First Amendment rights are frequently employed and are constitutionally mandated. Id. at 490.

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3. Nature of appeal

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4. Standard of review

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, or matters pertaining thereto such as appropriate procedures for appeals, or the standards for reviewing trial court rulings concerning the privilege. As a general rule, however, the court will review de novo trial court rulings concerning what the law is, including rulings concerning the existence or scope of a privilege.

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5. Addressing mootness questions

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, or matters pertaining thereto such as appropriate procedures for appeals, or the standards for reviewing trial court rulings that are arguably moot, such as rulings on subpoenas to a reporter after the trial or grand jury session for which the reporter was subpoenaed have concluded.

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6. Relief

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, or matters pertaining thereto such as appropriate procedures for appeals, or the standards for reviewing trial court rulings. Various trial courts have recognized and applied the qualified constitutional privilege in a number of cases, and in none of these has testimony or production of documents been compelled. Therefore, issues concerning what relief might be sought from appellate courts from an adverse ruling, or sanction imposed, in connection with assertion of a reporter's privilege, have not been addressed.

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IX. Other issues

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A. Newsroom searches

The federal Privacy Protection Act (42 U.S.C. 2000aa) has not been used in Alaska courts, to the knowledge of this author. It has been successfully asserted by the author on a couple occasions in telephonic negotiations to get authorities to withdraw improperly issued search warrants. In 2006, Anchorage police investigating a shooting in a public park used search warrants, in violation of 42 U.S.C. 2000aa, to obtain photos and videotape from a newspaper and television station in Anchorage. After a call from the author to the issuing magistrate and police, the search warrants were withdrawn and the documents were returned, unused, to the news organizations. In addition, after a meeting between public officials and the press, officials agreed to cover this issue in training for judges and police to avoid future violations arising from ignorance of the law, and agreed to pay attorney fees incurred by the press. See, https://www.rcfp.org/news/2006/0713-con-police.html or http://www.nppa.org/news_and_events/news/2006/07/anchorage.html. Similarly, in the 1980s, the author spoke with a magistrate that had issued a search warrant for premises of a television station to obtain tapes of a fire that was suspected of being caused by arson, while state troopers attempted to execute the warrant. After the magistrate was advised of the applicable federal law, he communicated to the troopers he was withdrawing the warrant and that they should desist from further efforts to serve it. There is no provision under state law similar to the federal Privacy Protection Act.

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B. Separation orders

There is no statute or case law in Alaska concerning "separation orders" issued against reporters who are both trying to cover a trial and are on a witness list for it, but the specter of this problem, particularly in the numerous communities around the state that are served by a small newspaper or public radio station that often has only one or two reporters, is routinely cited as one of the reasons underlying the need to recognize and apply the qualified constitutional reporter's privilege.

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C. Third-party subpoenas

The issue of subpoenas to third parties, such as credit card companies, telephone companies, or Internet service providers, in an attempt to discover a reporter's source, has not been addressed by the courts or legislature in Alaska.

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D. The source's rights and interests

The issue of sources seeking to intervene anonymously to halt disclosure of their identities, or suing over disclosure after the fact, has not arisen to date and has not been addressed by the courts or legislature in Alaska. AS 09.25.340 provides that when a reporter claims the privilege conferred by AS 09.25.300 - 09.25.390 and has not been divested of the privilege by order of the supreme or superior court, neither the reporter nor the news organization with which the reporter was associated may thereafter be permitted to plead or prove the sources of information withheld, unless the informant consents in writing or in open court.

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Reporter's Privilege Compendium

I. Introduction: History & Background

II. Authority for and source of the right

A. Shield law statute

B. State constitutional provision

C. Federal constitutional provision

D. Other sources

III. Scope of protection

A. Generally

B. Absolute or qualified privilege

C. Type of case

1. Civil

2. Criminal

3. Grand jury

D. Information and/or identity of source

E. Confidential and/or nonconfidential information

F. Published and/or non-published material

G. Reporter's personal observations

H. Media as a party

I. Defamation actions

IV. Who is covered

A. Statutory and case law definitions

1. Traditional news gatherers

a. Reporter

b. Editor

c. News

d. Photo journalist

e. News organization/medium

2. Others, including non-traditional news gatherers

B. Whose privilege is it?

V. Procedures for issuing and contesting subpoenas

A. What subpoena server must do

1. Service of subpoena, time

2. Deposit of security

3. Filing of affidavit

4. Judicial approval

5. Service of police or other administrative subpoenas

B. How to Quash

1. Contact other party first

2. Filing an objection or a notice of intent

3. File a motion to quash

a. Which court?

b. Motion to compel

c. Timing

d. Language

e. Additional material

4. In camera review

a. Necessity

b. Consequences of consent

c. Consequences of refusing

5. Briefing schedule

6. Amicus briefs

VI. Substantive law on contesting subpoenas

A. Burden, standard of proof

B. Elements

1. Relevance of material to case at bar

2. Material unavailable from other sources

a. How exhaustive must search be?

b. What proof of search does a subpoenaing party need to make?

c. Source is an eyewitness to a crime

3. Balancing of interests

4. Subpoena not overbroad or unduly burdensome

5. Threat to human life

6. Material is not cumulative

7. Civil/criminal rules of procedure

8. Other elements

C. Waiver or limits to testimony

1. Is the privilege waivable?

2. Elements of waiver

a. Disclosure of confidential source's name

b. Disclosure of non-confidential source's name

c. Partial disclosure of information

d. Other elements

3. Agreement to partially testify act as waiver?

VII. What constitutes compliance?

A. Newspaper articles

B. Broadcast materials

C. Testimony vs. affidavits

D. Non-compliance remedies

1. Civil contempt