Missouri
Reporter's Privilege Compendium
Jean Maneke, Esq.
The Maneke Law Group, L.C.
2345 Grand Blvd., Ste. 1600
Kansas City, MO 64108
(816) 753-9000
Last updated May 2021
CompareI. Introduction: History & Background
Missouri has not adopted a shield law for reporters. What law we have is based upon a handful of court decisions.
CompareII. Authority for and source of the right
CompareA. Shield law statute
None.
CompareB. State constitutional provision
Article I, section 8 of the Missouri Constitution, in similar fashion to the First Amendment to the United States Constitution, provides:
[N]o law shall be passed impairing the freedom of speech, no matter by what means communicated: that every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject, being responsible for all abuses of that liberty; and that in all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and in suits and prosecutions for libel the jury, under the direction of the court, shall determine the law and the facts.
This provision provides a basis for beginning the argument in Missouri that a reporter’s privilege should attach to the identity of sources used in the preparation of stories. However, no Missouri case has discussed in detail the application of this constitutional provision to the issue, but simply noted its existence.
CompareC. Federal constitutional provision
Similarly, case law in the state has noted that the First Amendment to the United States Constitution provides a basis for beginning the argument that a reporter’s privilege should attach to the identity of sources used in the preparation of stories. But no state court has directly held this based upon federal constitutional provisions. Indeed, there are only two cases in the state of Missouri in which this issue has been addressed: CBS, Inc., v. Campbell, 645 S.W.2d 30 (Mo. Ct. App. 1982) and State of Mo. ex rel Classic III, Inc., v. Ely, 954 S.W.2d 650 (Mo. Ct. App. 1997), and both have relied heavily on federal case precedent in making what determinations have been made regarding this issue for reporters in the State of Missouri. In fact, the Ely case contains probably the most thorough discussion of this issue in the State of Missouri to date. See also Continental Cablevision, Inc. v. Storer Broad. Co., 583 F. Supp. 427 (E.D. Mo. 1984).
CompareD. Other sources
There are no court rules, state bar guidelines or administrative procedures addressing this issue.
However, Missouri law specifically excludes any privilege—other than the attorney-client and clergy-parishioner privileges—from applying to cases involving suspected or known child abuse or neglect, or in cases involving termination of parental rights. Mo. Stat. 210.140, 211.459.4.
CompareIII. Scope of protection
CompareA. Generally
Missouri case law does provide a basis to begin the argument that a privilege attaches to the reporter in regard to disclosure of sources under certain circumstances, as outlined in the cases above.
CompareB. Absolute or qualified privilege
The case law in Missouri would seem to support that this privilege is qualified, based upon the four-pronged test set out in State of Missouri ex rel Classic III, Inc., v. Ely, 954 S.W.2d 650 (Mo. Ct. App. 1997), as outlined below.
CompareC. Type of case
Compare1. Civil
A Missouri appellate court has suggested that it believes disclosure of confidential sources or information in a civil trial could result in potential harm to a reporter in the performance of his or her duties. CBS, Inc. v. Campbell, 645 S.W.2d 30, 33 (Mo. Ct. App. 1982).
In State of Missouri ex rel Classic III, Inc., v. Ely, a Missouri appellate court adopted the four-part balancing test set out in many federal cases dealing with defamation, focusing on the following four elements:
1) whether the movant has exhausted alternative sources of the information;
2) the importance of protecting confidentiality in the circumstances of the case;
3) whether the information sought is crucial to the plaintiff’s case; and
4) whether the plaintiff has made a prima facie case of defamation.
954 S.W.2d 650, 655 (Mo. Ct. App. 1997). These facts are then balanced in determining whether to apply the privilege to the particular information or identity sought. But the court further noted that the four-part test will only apply if the journalist invokes a reporter’s shield privilege based upon a promise of confidentiality to his or her source. The court in Classic III based its decision, in part, on the holding of the U.S. Court of Appeals for the Eighth Circuit in Cervantes v. Time, 454 F.2d 986 (8th Cir. 1972). Classic III, 954 S.W.2d at 654.
Compare2. Criminal
The court in CBS, 645 S.W.2d at 33, suggests that it believes disclosure of confidential sources or information in a criminal trial could result in potential harm to a reporter in the performance of his or her duties.
Compare3. Grand jury
The court in CBS, 645 S.W.2d at 33, indicates that it believes the secrecy of grand jury proceedings in the State of Missouri would render disclosure of confidential sources or information in that setting less harmful than if disclosure were in conjunction with an ordinary civil or criminal trial. This case (following the Branzburg v. Hayes, 408 U.S. 665 (1972), analysis) held that there was no qualified privilege in such proceedings when there was no claim that the information was confidential or that the grand jury investigation was a sham undertaken to obtain the subpoenaed information. CBS, 645 S.W.2d at 33.
CompareD. Information and/or identity of source
The court in Classic III, 954 S.W.2d at 655, noted that the claim of privilege generally is strongest when the information sought is the names of persons who have given information in confidence to the reporter.
CompareE. Confidential and/or nonconfidential information
The court in Classic III, 954 S.W.2d at 654, held that a reporter’s privilege applies in civil cases to protect the reporter from being forced to reveal the identity of––and confidential communications made by—confidential sources where confidentiality was promised, even if the material was not used in the story. The court further engaged in a detailed analysis as to whether it is critical that the source’s material be used in the story for the privilege to attach and concluded that this is not a valid test, inasmuch as a reporter may give a promise of confidentiality to a source after the story has been published without knowing at that time if a second article will follow. Id. at 658.
CompareF. Published and/or non-published material
As stated above in the Classic III case, the privilege applies to non-published material as well as published material. 954 S.W.2d at 654.
CompareG. Reporter's personal observations
There is no statutory or case law addressing this issue.
CompareH. Media as a party
There is no statutory or case law addressing this issue.
CompareI. Defamation actions
There is language in Classic III, 954 S.W.2d at 655, suggesting that the claim of a right to discovery is strongest when the case involves an alleged libel by the reporter. But the court noted that this factor was not, in itself, dispositive.
CompareIV. Who is covered
Because Missouri has no “shield law” statute, the only discussion of quashing subpoenas has been in the context of non-reporters; those cases in Missouri have concerned general discovery issues, which are not relevant here, and to issues related to confidential communications in the context of an attorney-client relationship or a doctor-client relations.
CompareA. Statutory and case law definitions
There is no statutory or case law addressing this issue.
Compare1. Traditional news gatherers
There is no statutory or case law addressing this issue.
Comparea. Reporter
There is no statutory or case law addressing this issue.
Compareb. Editor
There is no statutory or case law addressing this issue.
Comparec. News
There is no statutory or case law addressing this issue.
Compared. Photo journalist
There is no statutory or case law addressing this issue.
Comparee. News organization/medium
There is no statutory or case law addressing this issue.
Compare2. Others, including non-traditional news gatherers
There is no statutory or case law addressing this issue.
CompareB. Whose privilege is it?
There is no statutory or case law addressing this issue.
CompareV. Procedures for issuing and contesting subpoenas
General practice is to file a motion to quash the subpoena prior to the date of the scheduled deposition/testimony, although an alternative might be to have the witness show up and assert the privilege at the event. The risk in that scenario would be that it might provide a basis for an argument for a contempt order. On the other hand, it does allow an opportunity to learn the questions to which answers were sought for examination and evaluation of those questions by the court. The determination of the procedure is best left to the attorney who can consider the facts at hand.
CompareA. What subpoena server must do
Compare1. Service of subpoena, time
Missouri law sets out the requirements for service of subpoenas in Section 536.077 of the Missouri Statutes. That statute does not set out a minimum amount of time before the deposition, and the only discussion of an “untimely” notice was in the context of a subpoena issued in the course of a hearing. The statute does set out certain other requirements that must be met at certain times and in certain circumstances, such as the payment of witness fees, but which are not related to media issues.
Compare2. Deposit of security
There is no statutory or case law addressing this issue.
Compare3. Filing of affidavit
There is no statutory or case law addressing this issue.
Compare4. Judicial approval
Missouri’s Rules of Civil Procedure do not require judicial approval in any circumstance before a subpoena is issued.
Compare5. Service of police or other administrative subpoenas
There is no statutory or case law addressing this issue.
CompareB. How to Quash
Compare1. Contact other party first
While the Missouri Court Rules do not require the attorney for the reporter to contact the other party before filing a motion to quash, it is generally a good idea to make contact and attempt to determine what is being sought. Often there are ways to work around the issue that generated the subpoena that will satisfy the party serving the discovery request while protecting the reporter from having to engage in a court battle to quash the subpoena, such as providing an affidavit (i.e., a business records affidavit).
Compare2. Filing an objection or a notice of intent
General practice is to file a motion to quash the subpoena prior to the date of the scheduled deposition/testimony, although an alternative might be to have the witness show up and assert the privilege at the event. The risk in that scenario is that it might provide a basis for an argument for a contempt order. On the other hand, it does allow an opportunity to learn the questions to which answers were sought for examination and evaluation of those questions by the court as it determines the extent, if any, to which a reporter’s privilege should be recognized. The determination of the procedure is best left to the attorney who can consider the facts at hand.
Compare3. File a motion to quash
Comparea. Which court?
The proper forum in Missouri for motions to quash is the court in which the underlying case is being heard.
Compareb. Motion to compel
Technically, the proper response to the subpoena is for the reporter to assert the privilege and then the subpoenaing party must file a motion to compel. However, the journalist may also file a motion to quash the subpoena.
Comparec. Timing
The motion to quash may be filed at any time after the subpoena is served. A motion to compel must be filed after the privilege is asserted in the deposition but is timely at any time until pending motions are terminated in the underlying case. The filing of a motion to compel or a motion to quash stays the underlying subpoena until it can be ruled upon by the court, including any future appeals of that underlying court ruling.
Compared. Language
No special requirements.
Comparee. Additional material
Compare4. In camera review
Comparea. Necessity
While Missouri cases have not spoken specifically on this issue, they have cited with approval the various federal cases that suggest this is important.
Compareb. Consequences of consent
Comparec. Consequences of refusing
If a reporter refuses any order of a court in Missouri, whether for in camera review or for any other matter, he or she may be held in contempt of court, and the penalties could include a fine or imprisonment or any combination of the two.
Compare5. Briefing schedule
Any motion filed in a case in Missouri should be set for hearing. This is done by calling the judge’s clerk and asking when the judge would be available to hear the motion. The attorney setting the hearing then is responsible for preparing the notice and mailing copies to all interested parties.
Compare6. Amicus briefs
Generally, courts in Missouri do not look with favor upon amicus briefs at the lower court (circuit court) level. However, amicus briefs are accepted by the courts of appeal and by the state supreme court. The Missouri Press Association is a frequent provider of amicus briefs at those levels and welcomes a contact in regard to cases that involve these issues. The association is located at 802 Locust St., Columbia, Mo., and can be reached at 573-449-4167. The author of this chapter is counsel for the association and also may be contacted about such matters.
CompareVI. Substantive law on contesting subpoenas
CompareA. Burden, standard of proof
In a civil case, the Missouri Court of Appeals has indicated that if a reporter raises the privilege, the subpoenaing party must meet a standard of proof as set out below. State of Missouri ex rel Classic III, Inc., v. Ely, 954 S.W.2d 650, 655 (Mo. Ct. App. 1997). The reality is, especially in cases where a motion to quash is filed, that the reporter’s counsel should address all authority that might persuade the court in the initial motion to quash.
CompareB. Elements
Missouri courts have recognized a four-part test cited in Classic III, when weighing the privilege with respect to defamation cases. 954 S.W.2d at 657. The elements include: 1) whether the movant has exhausted alternative sources of the information; 2) the importance of protecting confidentiality in the circumstances of the case; 3) whether the information sought is crucial to plaintiff’s case; and 4) whether plaintiff has made a prima facie case of defamation. These facts are then balanced in determining whether to apply the privilege to the particular information or identity sought.
Compare1. Relevance of material to case at bar
The court in Classic III points out that the test of relevancy must go further than the standard for discovery set out in the Missouri Supreme Court Rules, which states that the evidence discovered must be relevant or reasonably likely to lead to the discovery of admissible evidence. 954 S.W.2d at 657. That same case cites as persuasive the test set out in Cervantes v. Time, 464 F.2d 986 (8th Cir. 1972), where the U.S. Court of Appeals for the Eighth Circuit held that the identity of sources should be revealed only if the movant shows concrete evidence that the source will lead to persuasive evidence on a key issue. The court in Classic III also required a showing of the strength of the movant’s case for libel prior to requiring disclosure. 954 S.W.2d at 659.
Compare2. Material unavailable from other sources
The court in Classic III cites numerous federal appellate cases in its analysis of whether the movant can obtain the information from other sources. It notes that there has been no showing of what alternative sources were consulted regarding the information sought. Ultimately, the court concluded in Classic III that similar evidence could be obtained from alternative sources and found that the movants had not met their burden of proof on this element.
Comparea. How exhaustive must search be?
There is no statutory or case law addressing this issue.
Compareb. What proof of search does a subpoenaing party need to make?
While this issue has not been specifically addressed in the case law, Classic III notes that the court found important in its analysis that the subpoenaing party could likely obtain the same or similar evidence from other potential witnesses. 954 S.W.2d at 656.
Comparec. Source is an eyewitness to a crime
There is no statutory or case law addressing this issue.
Compare3. Balancing of interests
Missouri courts have recognized a four-part test cited in Classic III, when weighing the privilege with respect to defamation cases. 954 S.W.2d at 657. The elements include: 1) whether the movant has exhausted alternative sources of the information; 2) the importance of protecting confidentiality in the circumstances of the case; 3) whether the information sought is crucial to plaintiff’s case; and 4) whether plaintiff has made a prima facie case of defamation. These facts are then balanced in determining whether to apply the privilege to the particular information or identity sought.
Compare4. Subpoena not overbroad or unduly burdensome
Nothing in Missouri case law or court rules speaks specifically to this issue, other than the fact that it is general practice in Missouri courts for the judge to make a decision upon the narrowest grounds possible. Therefore, it is expected that the court would rule so as to provide guidance on the breadth that the inquiry could take under the subpoena.
Compare5. Threat to human life
There is no statutory or case law addressing this issue.
Compare6. Material is not cumulative
There is no statutory or case law addressing this issue.
Compare7. Civil/criminal rules of procedure
There is no statutory or case law addressing this issue. In general, all subpoenas are treated alike, with the exception of the notation above in CBS, 645 S.W.2d at 33, that there was no evidence that the grand jury actions constituted impermissible harassment.
Compare8. Other elements
The court also is required, pursuant to the test in Classic III, to weigh the importance of protecting confidentiality to the source. This case suggests there must be an evaluation if the claimed need for confidentiality is real or whether the reporter offers confidentiality to sources on a regular basis to prevent discovery in all cases. See Classic III, 954 S.W.2d at 656.
CompareC. Waiver or limits to testimony
There is no statutory or case law addressing this issue. In practical situations where a reporter has sat for a deposition and asserted the privilege, having the questions read into the record has served to put limitations on what testimony will or will not be required after review by the judge.
Compare1. Is the privilege waivable?
There is no statutory or case law addressing this issue.
Compare2. Elements of waiver
Comparea. Disclosure of confidential source's name
There is no statutory or case law addressing this issue.
Compareb. Disclosure of non-confidential source's name
There is no statutory or case law addressing this issue.
Comparec. Partial disclosure of information
There is no statutory or case law addressing this issue.
Compared. Other elements
There is no statutory or case law addressing this issue.
Compare3. Agreement to partially testify act as waiver?
There is no statutory or case law addressing this issue.
CompareVII. What constitutes compliance?
CompareA. Newspaper articles
The general practice in the state is for a “custodian of records” to testify if needed in court to authenticate any business record. This may be done by affidavit rather than by appearance of a person. See Mo. Stat. § 490.692. If a subpoena is served that relates to such matters, the counsel for the media often can simply facilitate the production of such an affidavit to prevent the need for a witness to testify in court. Often it is important to distinguish a “custodian of records” for the material as someone separate from the reporter/photographer in order to limit the information available through a deposition, if one is required (i.e.: the custodian of records is likely to know far less about the article than the reporter who wrote it, and that reporter is not the “custodian of records” for purposes of authenticating the publication of the article in the paper).
CompareB. Broadcast materials
A similar affidavit could seemingly serve to authenticate a true and accurate copy of a video as aired, if this were the only purpose of a subpoena.
CompareC. Testimony vs. affidavits
See answers to the above items.
CompareD. Non-compliance remedies
As stated above, if a reporter fails to honor a valid, upheld subpoena, a court may issue sanctions for contempt of court. Fortunately for reporters in the state, no examples of contempt citations have been entered, so far as it is known by this author.
Compare1. Civil contempt
Comparea. Fines
There is no statutory or case law addressing this issue, and no known instances on the state level.
Compareb. Jail
There is no statutory or case law addressing this issue, and no known instances on the state level.
Compare2. Criminal contempt
There is no statutory or case law addressing this issue, and no known instances on the state level.
Compare3. Other remedies
There is no statutory or case law addressing this issue, and no known instances on the state level.
CompareVIII. Appealing
CompareA. Timing
Compare1. Interlocutory appeals
Appeals of a denial of a motion to quash (or an upholding of the movant’s motion to compel) must be made by a writ of prohibition to the appropriate appellate court. There is no time frame within the Supreme Court Rules for the filing of the writ, but the general practice in the state is that a writ is filed very shortly after the lower court ruling in order to preserve the stay pending the appellate process. Alternatively, if the court will entertain a request that the judgment on the subpoena be made “final” for purposes of appeal, a traditional appeal can be taken while the underlying case proceeds on its regular timeline.
Compare2. Expedited appeals
The rules for the timing of the writ process are set out in Missouri Supreme Court Rule 84.22, et seq. The entire process moves fairly quickly, and a ruling is issued by the court in an expedited matter.
CompareB. Procedure
Compare1. To whom is the appeal made?
The initial appeal from the circuit court order goes to the Missouri Court of Appeals for the district in which the circuit court sits. The party unsatisfied by the ruling by the Court of Appeals may then seek review through the filing of a writ before the Missouri Supreme Court.
Compare2. Stays pending appeal
While there is no specific provision in the rules regarding a stay pending appeal, the general practice of counsel in the state is that such matters are stayed informally while the appeal proceeds. The appellate court may itself issue a stay pending resolution of the matter by application of the appealing party or by its own motion.
Compare3. Nature of appeal
See information set out above regarding filing writs of appeal.
Compare4. Standard of review
Missouri appellate courts will not issue a writ in such matters unless the damage to the party against whom discovery is sought is both severe and irreparable if the privileged material is produced and this damage cannot be repaired on appeal.
Compare5. Addressing mootness questions
There is no statutory or case law addressing this issue, and no known instances on the state level. However, as a general matter, Missouri judges tend to choose to avoid continuing a matter when it is moot, in order to expedite their dockets.
Compare6. Relief
The general procedure is to seek relief through a writ, because once the testimony is given pursuant to a subpoena, any attempt to remedy the matter on appeal will be too late and the damage will have been done. In addition, often the subpoena targets a reporter who is not a party to the underlying action, and therefore the reporter has no standing to file any appeal pending special leave of the court (see section on timing of “Interlocutory Appeals” above).
CompareIX. Other issues
CompareA. Newsroom searches
Since enactment of the federal Privacy Protection Act, 42 U.S.C. 2000aa, there have been no instances where law enforcement has attempted to search any newsroom in the state. No similar provisions exist under state law in Missouri.
CompareB. Separation orders
There is no statutory or case law addressing this issue. However, Missouri has an unwritten “rule” that allows attorneys to clear the courtroom of any person who is a prospective witness prior to the start of a trial, which is generally invoked by all attorneys practicing in the state as a matter of course. It would be highly unlikely for a reporter to be summoned to testify while covering a case unless the factual circumstances were very unusual -- in most cases, the reporter would have been told to leave the room because of “the rule,” giving the reporter time to seek counsel in regard to on the matter.
CompareC. Third-party subpoenas
There is no statutory or case law addressing this issue other than that set out above.
CompareD. The source's rights and interests
There is no statutory or case law addressing this issue, and no known instances on the state level.
Compare