2. Others, including non-traditional news gatherers

In Silkwood v. Kerr-McGee Corp., 563 F.2d 433, 436-37 (10th Cir. 1977), the court held that the First Amendment reporter's privilege extended to a film maker producing a documentary.

The United States District Court for the District of Colorado held the Anti-Defamation League was a "newsperson," because it published numerous periodicals, books, and pamphlets and regularly engage in news gathering activities. See Quigley v. Rosenthal, 43 F.Supp.2d 1163, 1173 (D. Colo. 1999). The court applied Colorado's shield law, which defines "newsperson" and "mass media," in reaching its decision. See Colo. Rev. Stat. § 13-90-119(3)(a) and (1)(c).

Although it concluded that no "journalistic" privilege applied, the United States District Court for the District of Kansas applied the Silkwood balancing test to determine whether identification of confidential sources used by two non-journalists was protected by the First Amendment. See How v. City of Baxter Springs, Kansas, No. 04-2256-JWL, 2005 U.S. Dist. LEXIS 8466, *18-19 (D. Kan. May 5, 2005). The plaintiffs, one of whom was self-employed, and the other a retired patent attorney, and neither of whom was a journalist by profession, filed a malicious prosecution lawsuit against defendants, the City of Baxter Springs, the City Clerk, and the City Attorney, based on criminal defamation actions filed by the defendants against the plaintiffs based on "letters to the editor" and "guest editorials" written by the plaintiffs and published in the Baxter Springs News. Defendants filed motions to compel the plaintiffs to disclose during their depositions certain confidential sources, and in response, plaintiffs filed motions for a protective order. The court observed that the claim of privilege was "unsupportable, factually or legally," because the plaintiffs were not journalists, but "[n]evertheless, out of an abundance of caution, applied the Silkwood test." Id. at *19. The court granted defendants' motions to compel and denied plaintiffs' motions, finding that the Silkwood factors weighed in favor of defendants because plaintiffs are the only source of the statements claimed to be false, and "the truth or veracity of plaintiffs' statements are relevant." Id.

The reporter’s privilege has been extended to include research analysts and academics.  See, e.g., Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998) (extending the privilege to the pre-publication manuscripts of a distinguished academic); In re Bextra and Celebrex Mktg. Sales Practices and Prod. Liab. Litig., 249 F.R.D. 8, 13 (D. Mass. 2008) (applying reporter’s privilege and refusing to compel medical journal to identify peer reviewers of articles submitted for publication or to produce comments of peer reviewers); Summit Tech., Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381 (D. Mass. 1992) (holding that the reporter’s privilege applied to the report of an independent researcher and analyst hired by an institutional investor); United States v. Doe (In re Falk), 332 F. Supp. 938 (D. Mass 1971) (finding that professors who publish books and articles are protected by the reporter’s privilege).

In Cusumano v. Microsoft Corp., the court held that an academic’s manuscript of a forthcoming book was protected by the reporter’s privilege.  162 F.3d 708, 713 (1st Cir. 1998).  The court held that “[a]cademicians engaged in pre-publication research should be accorded protection commensurate to that which the law provides for journalists,” reasoning that academics are “sufficiently like journalists” for the privilege to apply.  Id. at 714.  The court stated that scholars are “information gatherers and disseminators,” who require their sources to confide in them, often under agreements of confidentiality.  Id.  The court noted that forcing academics to release transcripts prior to publication would endanger “the values of academic freedom safeguarded by the First Amendment and jeopardize the future information-gathering activities of academic researchers.” Id. at 713.  The court further held that “the medium an individual uses to provide his investigative reporting to the public does not make a dispositive difference in the degree of protection accorded to his work.  Whether the creator of the materials is a member of the media or of the academy, the courts will make a measure of protection available to him as long as he intended ‘at the inception of the newsgathering process’ to use the fruits of his research ‘to disseminate information to the public.’” Id. at 714 (emphasis added).

The First Circuit’s decision in Cusumano is consistent with many of the First Circuit courts’ earlier decisions addressing to whom the reporter’s privilege should apply.  See, e.g., Summit Tech., Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992) (finding that the reports of an investment analyst whose business was to perform independent research and analysis of publicly traded companies for institutional investors were entitled to protection under the reporter’s privilege, since they involved the dissemination of investigative information to the public); United States v. Doe (In re Falk), 332 F. Supp. 938, 941 (D. Mass 1971) (holding that a professor engaged in writing articles for newspapers and magazines is afforded the protection of the reporter’s privilege, since the privilege does not differentiate between information appearing in books and newspapers); cf. United States v. Doe (In re Popkin), 460 F.2d 328, 334 (1st Cir. 1972) (holding that to the extent that a “scholar qua scholar” is asked about statements made to him by other scholars, he does not obtain the protection of the reporter’s privilege, since extending the privilege to scholars in this capacity “would give comprehensive protection to such collateral discussions [as to] make scholars a uniquely privileged class in the broadest sense.”).

In In re Doulours Price, 685 F.3d 1 (1st Cir. 2012), the First Circuit upheld the denial of motions to quash subpoenas brought by two Boston College academic researchers who had conducted confidential interviews with participants in the Northern Ireland independence movement, including with members of the Irish Republican Army (the “Belfast Project”).  Id. at 6.  The British government sought such research materials pursuant to treaty and in connection with its own criminal investigation into the abduction and murder of an individual thought to be an informant for the British government.  Id. at 17.  Relying on Branzburg v. Hayes, 408 U.S. 665 (1972), the court found that the strong law enforcement interests precluded the creation of a general purpose reporter’s or academic research privilege for confidential sources.  In his concurrence, Judge Torreuella rejected the view that the First Amendment does not provide some degree of protection to “the fruits of the [researchers’] investigative labors.”  685 F.3d 20.  He concluded, “In my view, the [researchers] cannot carry the day, not because they lack a cognizable interest under the First Amendment, but because any such interest has been weighed and measured by the Supreme Court and found insufficient to overcome the government’s paramount concerns in the present context.”  Id. at 21.

In In re Request from the United Kingdom, 718 F.3d 13 (1st Cir. 2013), the First Circuit again addressed whether to enforce subpoenas issued by the British government to the trustees of Boston College for certain confidential materials and research which were part of the Belfast Project.  Writing for the majority this time, Judge Torruella stated plainly, “A balancing of First Amendment concerns vis-a-vis the concerns asserted in favor of the compelled disclosure of academic and journalistic information is the law in this circuit for all First Amendment cases . . . . Furthermore, Branzburg has not hindered our duty to perform balancing tests in First Amendment cases . . . .” 718 F.3d at 25 (citing inter alia to Cusumano v. Microsoft Corp, 162 F.3d 708 (1st Cir. 1998), Bruno & Stilllman v. Globe Newspaper Co., 633 F.2d 583 (1st 1980) and In re Doulours Price, 688 F.3d 1 (1st Cir. 2012)).

However, in In re Steinberg, the First Circuit held that notebooks with entries that documented activity in connection with fundraising activities for a presidential campaign were not “journalistic endeavors.” 837 F.2d 527, 528, n.2 (1st Cir. 1988). The court held that the notebooks were not protected by the reporter’s privilege and required the campaign worker who kept these notebooks to turn them over to the police department, which was investigating fraud and conspiracy in connection with the campaign. Id.

District courts have expressed a willingness to extend the privilege to less traditional newsgatherers, including the publisher of a technical newsletter and student journalists. See Apicella v. McNeil Laboratories, Inc., 66 F.R.D. 78, 85 (E.D.N.Y. 1975) (technical newsletter); Persky v. Yeshiva Univ., No. 01 Civ. 5278 (LMM), 2002 WL 31769704 (S.D.N.Y. Dec. 10, 2002) (student journalist); Blum v. Schlegel, 150 F.R.D. 42 (W.D.N.Y. 1993) (student journalist).

It is likely that freelance writers would also satisfy the broad Second Circuit privilege test, so long as "the individual claiming the privilege must demonstrate, through competent evidence, the intent to use material -- sought, gathered or received -- to disseminate information to the public and that such intent existed at the inception of the newsgathering process." Von Bulow v. Von Bulow, 811 F.2d 136, 144 (2d Cir. 1987).

This test also applies to authors of books. In Von Bulow v. Von Bulow, the Second Circuit recognized that book authors with the requisite intent could qualify for the privilege. The court did not allow the author of a manuscript on the accused murderer, Claus von Bulow, to benefit from the privilege because she "gathered information initially for purposes other than to disseminate information to the public." Id. at 146. For example, she commissioned reports on the lifestyles of von Bulow's wife's children, with no intention of disclosing them. At oral argument the author's counsel admitted that when the author commissioned the reports her main concern was to vindicate Claus von Bulow. The Second Circuit also found the author's personal notes on the trial of Claus von Bulow not to be privileged. The author claimed to have taken these notes to write an article for the New York Post, but the Second Circuit found her assertion belied by the fact that she continued to take notes even after the Post decided not to print her article. Id. at 145.

The Second Circuit has not definitively stated whether academics receive a privilege. In In re Grand Jury Subpoena (Brajuha), the court held that pursuant to Federal Rule of Evidence 501 it had the power to fashion a scholar's privilege, but the court did not decide if the scholar's privilege in fact exists. In re Grand Jury Subpoena (Brajuha), 750 F.2d 223, 224-25 (2d Cir. 1984). In this case, a graduate student created a journal in preparation for writing his dissertation entitled "The Sociology of the American Restaurant." The grand jury subpoenaed the journal because it included the student's notes on a restaurant in which a suspicious fire had started. The Court held that if a scholar's privilege exists, it "requires a threshold showing consisting of a detailed description of the nature and seriousness of the scholarly study in question, of the methodology employed, of the need for assurances of confidentiality to various sources to conduct the study, and of the fact that the disclosure requested by the subpoena will seriously impinge upon that confidentiality." Id. at 225. The court remanded the case for additional findings and ordered in camera review and redaction of sections of the journal that arguably fell under the scholar's privilege. Id. at 226.

Similarly, the Second Circuit has not explicitly stated whether the privilege applies to newspaper librarians or others connected to the news process. Given the broad reach of who can receive the privilege in the Second Circuit, it is likely that anyone connected to the news process could receive the privilege if they gather information in the course of newsgathering duties and have the intention to disseminate the information to the public in an independent manner.

The three-part test employed by the Third Circuit to determine who is entitled to invoke the First Amendment-based journalist's privilege depends not on formal distinctions in job description or role, but on the purpose for which the person or entity has gathered news. See In In re Madden, 151 F.3d at 130 (qualification for privilege “requires an intent at the inception of the newsgathering process to disseminate investigative news to the public); see also, e.g., United States v. Vastola, 685 F. Supp. 917, 920, 924-25 (D.N.J. 1988) (extending privilege to author of book about mafia and Ronald Reagan); In re Scott Paper Co. Sec. Litig., 145 F.R.D. at 367-71 (extending privilege to corporation reporting on creditworthiness of companies and their securities that distributed reports to public).

The Fourth Circuit has not addressed the reporter’s privilege as applied to non-traditional news gatherers, such as authors, freelancers, students, unpaid news gatherers, or academic researchers, or to others connected to the news process, such as newspaper librarians. However, a Virginia district court has applied the privilege to a freelance reporter assigned to cover the recent military conflict in Afghanistan on behalf of CNN. United States v. Lindh, 210 F. Supp. 2d 780, 781 (E.D. Va. 2002).

Although citizen reporting has increased in recent years, particularly with the advent of the internet, the Fifth Circuit has not yet decided whether the protections of the reporter’s privilege extend to non-professional journalists. A district court has upheld the privilege for a freelance reporter submitting an article to a newspaper. See Holland v. Centennial Homes, Inc., 1993 WL 755590, 22 Media L. Rep. 2270 (N.D. Tex. 1993). Further, in In re Grand Jury Subpoenas, the Fifth Circuit assumed without deciding that the privilege could apply to a freelance writer. 2001 WL 940433, 29 Media L. Rep. 2301, 2303 (5th Cir. Aug. 17, 2001). Nonetheless, the opinion questions the application of the privilege to "a virtually unpublished freelance writer operating without an employer or a contract for publication," id. at 2303 & n.4, and notes Leggett's publication history: "Leggett's body of published work consists of a single article in an FBI publication, Varieties of Homicide, and one fictional short story. To date, Leggett has published nothing on the Angleton murder." Id. at 2302.

A district court has also suggested that the privilege may cover publishers of industry reports and market price indices. See United States v. Valencia, 2006 WL 3707867, at *1, 10 (S.D. Tex. 2006) (concluding that redactions of information provided in response to grand jury subpoenas sufficiently protected the identity of the publishers’ sources and thus did not “undermine any genuine interest the Publishers might have in protecting their data and sources in other civil proceedings”).

Federal courts within the Sixth Circuit have barred compelled disclosure of the identities of confidential sources of a nonprofit organization's newsletter, a freelance author, and a newspaper's advertising dept. Southwell v. Southern Poverty Law Ctr, 949 F. Supp. 1303 (W.D. Mich. 1996); Schultz v. Reader's Digest Ass'n, 468 F. Supp. 551 (E.D. Mich. 1979); NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998).

A non-party professor and research scientist at the University of Michigan enjoyed no protection from a subpoena issued by a corporate defendant in a personal injury suit where the subpoena sought the scientist's unpublished work product generated during a study of motor vehicle crashes. Wright v. Jeep Corp., 547 F. Supp. 871 (E.D. Mich. 1982).

The Seventh Circuit, before McKevitt, applied the reporter's privilege for "non-traditional" news gatherers such as authors and political advocacy groups. See Desai v. Hersh, 954 F.2d 1408, 1412 n. 3 (7th Cir. 1992) (finding the reporter's privilege applicable to book author under Illinois' statutory definition of reporter); Builders Assoc. of Greater Chicago v. County of Cook, No. 96 C 1121, 1998 WL 111702 (N.D. Ill. Mar. 12, 1998) (holding advocacy group's information gathering for political purposes not outside the protections of the privilege if it was gathered with the intent to disseminate the information to the public).There is no statutory or case law addressing this issue.

No Eighth circuit case law addresses this issue.

The Ninth Circuit has allowed some nontraditional news gatherers, but not others, to invoke the reporter’s privilege. In Shoen I, the court allowed an investigative book author to assert the privilege. The court found that the privilege was not limited to reporters employed by the traditional print or broadcast media because the purpose of the privilege was not solely to protect newspaper or television reporters, but to protect the activity of “investigative reporting” more generally. Shoen I, 5 F.3d at 1293 (adopting the Second Circuit’s reasoning in Von Bulow). In that vein, a district court in Washington allowed a student journalist, writing for her graduate school magazine with the intention of writing a book about the same subject later on, to claim the privilege. Jimenez v. City of Chicago, 733 F. Supp. 2d 1268, 1272 (W.D. Wash. 2010). Likewise, a district court in California also permitted a podcast series and corresponding production studio to claim the privilege with respect to unreleased interview recordings. United States v. Newland, No. 17-CR-0623, 2021 WL 6051675, at *2 (S.D. Cal. Dec. 21, 2021).

By contrast, a district court in Arizona interpreting California’s shield law held that a blogger who only “self-publishes material and collaborates on web video presentations,” without showing that she was affiliated with a journalistic organization such as a “newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system,” was not covered by the shield law.  Xcentric Ventures, L.L.C. v. Borodkin, 934 F. Supp. 2d 1125, 1145 (D. Ariz. 2013), aff’d sub nom. Xcentric Ventures, LLC v. Borodkin, 798 F.3d 1201 (9th Cir. 2015).  In addition, a district court in California found that the privilege did not apply to an investor whose only publications were negative reports about the companies in which the investor had taken a short position.  Beaver Cty. Emp’rs Ret. Fund v. Tile Shop Holdings, Inc., No. 16-MC-80062-JSC, 2016 WL 3162218, at *3-4 (N.D. Cal. June 7, 2016) (noting that the subpoenaed-party’s “information-disseminating activity is not based on a judgment about newsworthiness, but rather on its own financial needs and whether it can make a profit by shorting the company on which it publishes its report”).

In addition, in Planned Parenthood Federation of America, Inc. v. Center for Medical Progress, the defendants asserting the journalist’s privilege were part of an alleged fake company created to access the Planned Parenthood health centers in order to produce a video series accusing Planned Parenthood of violating federal fetal tissue donation laws. No. 16-CV-00236-WHO, 2018 WL 2441518, at *1-2 (N.D. Cal. May 31, 2018). The defendants argued that the privilege applied to them because they engaged in a journalism study with the intent to “publish [the] findings and build a body of evidence strong enough to trigger criminal prosecution and other enforcement actions.” Id. at *14. The Northern District of California court used Shoen I’s standing standard, and called the defendants’ assertion “unique,” but did not rule on whether the privilege applied. Id. at *15. Instead, the court assumed that the defendants could assert the privilege, and held that the plaintiffs’ need for disclosure overcame the privilege. Id.

There is no Alabama statutory or reported case law applying the reporter's privilege to 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.

See Section IV, introductory comments.

No cases available have considered whether the shield law applies to non-traditional news gatherers other than those listed in the statute.

California’s reporter’s privilege was intended to be broad in its reach, because it protects all persons “connected with or employed upon” a media organization. Cal. Const. art. I, § 2(b); Cal. Evid. Code § 1070. Two California cases have applied the reporter’s privilege to freelance reporters. People v. Von Villas, 10 Cal. App. 4th 201, 231-32, 13 Cal. Rptr. 2d 62 (1992); Playboy Enters., Inc. v. Superior Court, 154 Cal. App. 3d 14, 28-29, 201 Cal. Rptr. 207 (1984). In addition, one California Court of Appeal extended the protections of the privilege to bloggers on a website devoted to information about Apple Macintosh computers, who purportedly disclosed confidential information about a rumored new Apple product. O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 1457, 44 Cal. Rptr. 3d 72 (2006). The court “decline[d] the implicit invitation to embroil ourselves in questions of what constitutes ‘legitimate journalis[m].’ The shield law is intended to protect the gathering and dissemination of news and that is what petitioners did here.” Id. Because the court could “think of no workable test or principle that would distinguish ‘legitimate’ from ‘illegitimate’ news,” it rejected “[a]ny attempt by courts to draw such a distinction.” Id.

The Shield Law is broadly defined to incorporate those outside the realm of a traditional journalist or newsperson. See Henderson v. People, 879 P.2d 383 (television news helicopter pilot may invoke privilege); Quigley v. Rosenthal, 43 F. Supp. 2d 1163 (Anti-Defamation League may assert privilege because it gathers news and publishes periodicals, books and pamphlets).

The Shield Law's broad definition of “News Media” is not limited to traditional print and broadcast outlets, but there is no case law addressing what sorts of non-traditional news gatherers are protected by the privilege. But see Las Vegas Sun, Inc. v. Adelson, 2021 U.S. Dist. LEXIS 251631, *9 (holding no privilege existed due to lack of editorial and financial independence where a journalist was hired as a paid consultant to serve the objectives of others having a stake in the subject of the reporting).

The U.S. Supreme Court has instructed that the concept of “press” must be given broad meaning, stating that “[t]he press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.”  Lovell v. City of Griffin, 303 U.S. 444, 452 (1938).  This suggests that for purposes of the reporter’s privilege, the “press” includes non-traditional newsgatherers.  Alexander v. FBI, 186 F.R.D. 21, 50 (D.D.C. 1998).

In this Circuit, the privilege has been extended to the publisher of daily and bi-weekly indices and price ranges for the natural gas market, where the information at issue was based, in part, on transaction data submitted by participating companies as well as additional factors that may affect the market.  CFTC v. McGraw-Hill Cos., Inc., 390 F. Supp. 2d 27 (D.D.C. 2005).  There,  the court found that the publication engaged in “journalistic analysis and judgment in addition to simply reporting data,” explaining that “[w]hile the record reflects that [the publisher] may not be involved in what is most commonly considered traditional news gathering, the privilege applies to a broad range of news gatherers.”  Id. at 32 (citing Branzburg v. Hayes, 408 U.S. 665, 703-05 (1972), for the proposition that “any attempt to define news or a newsgatherer for purposes of the privilege treads dangerously close to discriminating on the basis of content”); accord CFTC v. Whitney, 441 F. Supp. 2d 61 (D.D.C. 2006); Blumenthal v. Drudge, 186 F.R.D. 236 (D.D.C. 1999) (extending First Amendment privilege to defendant who maintained the “Drudge Report” website).  However, this expansive definition of “press” has led to criticism of the reporter’s privilege as inadministrable.  E.g. In re Miller, 438 F.3d 1141 (D.C. Cir. 2006) (Sentelle, J., concurring) (questioning whether privilege should apply to “the stereotypical ‘blogger’ sitting in his pajamas at his personal computer posting on the World Wide Web his best product to inform whoever happens to browse his way”).

Delaware's statute defines "person" to include individuals, corporations, business trusts, estates, trusts, partnerships or associations, governmental bodies, or any other legal entities. 10 Del. C. § 4320 (3). Furthermore, "reporters" include journalists, scholars, educators, polemicists, and other individuals meeting the requirements of the definition laid out supra, Part IV.A.1.a. See also § 4320 (4).

The District’s shield law should apply to non-traditional newsgatherers, as the definition of “news media” includes “any printed, photographic, mechanical, or electronic means of disseminating news and information to the public.”  D.C. Code § 16-4701 (emphasis added).  For instance, the D.C. Superior Court concluded that the shield law applied to a non-resident journalist in a foreign jurisdiction who was writing a book.  Prentice v. McPhilemy, 27 Med. L. Rptr. 2377, 2380-81 (D.C. Super. Ct. 1999).

Moreover, the District’s shield law broadly protects news or information “procured by a person while employed by the news media in the course of pursuing professional activities” and sources “procured by a person while employed by the news media and acting in an official news gathering capacity.”  D.C. Code §§ 16-4701, 4702.  It appears that all news media fall within that scope, so long as the individual asserting the privilege can establish that the information in question was obtained as part of the newsgathering process.

Despite the statute’s use of the term “employed by the news media,” case law suggests that freelancers, either on specific assignment or otherwise, and independent authors would be protected by the statue.  See Prentice, 27 Med. L. Rptr. 2377.

A D.C. trial court also has held that a qualified First Amendment privilege protected a trade association from having to disclose the identity of a whistleblower who communicated anonymously over the internet.  Solers, Inc. v. Doe, 35 Med. L. Rptr. 1297 (D.C. Super. Ct. 2006), vacated and remanded, 977 A.2d 941 (D.C. 2009).

Book authors are expressly excluded from the protection of the statutory privilege. § 90.5015(1)(b), Fla. Stat. (2023). However, the common law reporter’s privilege in Florida recognizes a privilege for book authors. See Fla. v. Trepal, 24 Media L. Rep. 2595, 2596 (Fla. Cir. Ct. 1996) (the author “was functioning as a novelist and not a true news ‘reporter.’ However, the qualified reporter’s privilege is applicable to [the author’s] situation”). The Trepal court noted that the author’s intent was to disseminate information to the public. See id. (citing Branzburg, 408 U.S. at 705 (“the informative function asserted by representatives of the organized press . . . is also performed by lecturers, political pollsters, novelists, academic researchers, and dramatists”)). Thus, advocates seeking to quash a subpoena to a book author should base their objection on the common law and constitutional privileges.

Because of its broad scope, the privilege protects not just traditional media, but any person “engaged in the gathering or dissemination of news for the public through a newspaper, book, magazine, or radio or television broadcast.” This definition would include all authors, be they research assistants, newspaper librarians, student interns, etc. But see Vance v. Krause, Civil Action No. 90-1687-5 (DeKalb County Superior Court, Nov. 21, 1990) (where subpoena sought to compel testimony from non-party television station photographer who was also a long-time friend of defendant, trial court held that shield law protected from disclosure only information obtained by photographer as a news gatherer for purposes of dissemination to the public.).

There is no current Hawai‘i statute or other authority addressing this issue.

No Idaho cases.

It does not appear that Illinois courts have directly addressed the issue of whether the Statute applies to non-traditional news gatherers. Nonetheless, courts have interpreted the definition of “researcher” rather broadly. See, e.g., People v. Slover, 323 Ill. App. 3d 620, 753 N.E.2d 554 (2001). It appears that anyone can assert the privilege and the court can reject or accept it. For example in Slover, a murder defendant issued a subpoena to numerous persons employed at eight media organizations, including a librarian at a newspaper, to produce published and unpublished photographs related to the death of the victim. Id. at 622, 753 N.E.2d at 556. The librarian refused to produce the photographs and asserted the reporter’s privilege. Id. The trial court found that the unpublished photographs were not privileged and that the librarian could not assert the reporter’s privilege, and found her in civil contempt. The trial court held a sentencing hearing in which they allowed the editor of the paper to be substituted as the subject of its order. The appellate court reversed the order, holding that the photographs were privileged and overturning the contempt charge against the librarian.

Similarly, in Cukier v. American Medical Ass’n, 259 Ill. App. 3d 159, 630 N.E.2d 1198 (1994), the appellate court applied the Statute to a medical journal and its editor, holding that the journal and its editor met the definitions of “news medium” and “reporter,” respectively, under the Statute. In refusing to grant access to the information, the court held that the journal and its editor could have learned the information from an undisclosed source during the “news gathering” process. Id. at 164, 630 N.E.2d at 1201.

In Simon v. Northwestern Univ., 321 F.R.D. 328, 45 Media L. Rep. 1961 (N.D. Ill. 2017),  after holding an evidentiary hearing “to learn about the filmmakers’ role in producing the documentary” that was the subject of a subpoena, the district court found that “based on the filmmakers’ duties and responsibilities with respect to filming, editing, and producing,” they “were clearly ‘reporters’ within the meaning of the Statute.”  Id. at 331.

Also, in an unpublished order, the Circuit Court of Cook County held that a government watchdog group, the Better Government Association, could assert the reporter’s privilege in response to defendants’ subpoena in the capital murder case. Defendants, on trial for the infamous “Brown’s Chicken Massacre,” sought the BGA’s notes and other work product it compiled for an article it had produced concerning the case and how the police bungled their investigation. The court observed that the BGA “need not fit into any pre-conceived category of journalism in order to qualify under the Illinois Reporter’s Privilege Act’s definition of reporter.” Mem. Op. and Order, Illinois v. Degorski and Luna, 02 CR 15430 (Ill. Cir Ct., May 20, 2005), at p. 13.

Indiana's shield law applies to freelancers who have an employment relationship with a particular news medium. Northside Sanitary Landfill, Inc. v. Bradley, 462 N.E.2d 1321, 1324–25 (Ind. Ct. App. 1984). The shield law has not be applied to other non-traditional newsgatherers in reported case law.

No appellate case addresses this issue. One district court has extended the scope of the reporter's privilege in Iowa to freelance journalists. See Stanfield,18 Med. L. Rptr. at 1265.

There is no law addressing this issue under the Kansas shield law beyond the definitions identified in the preceding section.  As previously noted, the Silkwood and Grandbouche decisions suggest that the Tenth Circuit is not inclined to limit the availability of the qualified privilege to traditional media in litigation in federal courts, in which the issue of privilege will be determined by resort to federal privilege law.

No reported decisions.

A Louisiana Court of Appeal relied on Ridenhour's interpretation of the state's shield law to grant a qualified reporter's testimonial privilege to an investigative nonfiction book author. Louisiana v. Fontanille, 1994 La. App. LEXIS 191, *7 (La. App. 5th Cir. 1994).

Maine’s courts have not addressed this issue.

Forensic Advisors, Inc. v. Matrixx Initiatives, Inc., 907 A.2d 855, 35 Med. L. Rep. 1115 (Md. App. 2006), appeal dism'd, 918 A.2d 468 (Md. 2007). Shield law applies to financial newsletter.  Action Committee for Transit v. Chevy Chase, 145 A.3d 640, 654 n.24 (in dicta noting that the activities of a local blogger made him a member of the news media at least with respect to the Maryland Public Information Act).

There is no case law on the application of the privilege to non-traditional news gatherers such as authors, freelancers, students, and unpaid news gatherers. However, in Summit Technology, Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992), the court held that an investment analyst who had written a report on a company, though not a member of the "organized press" per se, could invoke the reporter's privilege. For an argument in favor of expanding the reporter's privilege to non-traditional members of the media, see Mary-Rose Papandrea, Citizen Journalism and the Reporter's Privilege, 91 Minn. L. Rev. 515 (2007).

There is no on-point case law that distinguishes between traditional and non-traditional news gatherers. However, as stated above, the Michigan Court of Appeals has recognized that those who gather and publish news for industrial trade publications rather than newspapers of general circulation are covered by the news reporter’s privilege. See In re Photo Mktg. Ass’n Int’l, 120 Mich. App. at 531.

Courts have applied the privilege to nontraditional news gatherers. See In re Mahtani, No. 27-CV-17-11589, 45 Med. L. Rptr. 2408, 2412 (Minn. Dist. Ct., Hennepin Cty., Sept. 25, 2017) (“The wide-cast net of the Act [shield statute] would appear to catch not only reporters and journalists working in traditional news media, but also internet bloggers, unpaid news-gatherers, even public relations consultants as long as they were engaged in any of the enumerated activities.”); Findings of Fact, Conclusions of Law and Order, State v. Berglund, No. K5-00-600125, Ramsey Cty., Minn., Dist. Ct., dated April 12, 2000 (compelling city to return original videotape that police had seized from cable access show personnel).

Cases involving reporters, but denying protection for other reasons, include Berglund v. City of Maplewood, 173 F.Supp.2d 935, 950 (D. Minn. 2001) (cable access show personnel), aff'd sub nom. Zick v. City of Maplewood, 50 Fed. App'x 805, 806 (8th Cir. 2002) (unpublished).

Neither the opinions from the federal district courts of Mississippi nor the selected trial court orders further discuss the application the reporters' qualified privilege in the context of other, nontraditional newsgatherers.

There is no statutory or case law addressing this issue.

The area where the Montana law can be the most limited concerns who is covered by the privilege. Non-traditional news gatherers will not have coverage unless they also have a connection with the media that are listed in the law. For example Linda Tracy, a student who made a video documentary, received the protection of the privilege because she had connections with the University of Montana, which operates a public radio and television station, with television stations that broadcast some of her work, and with a non-profit organization, Cold Mountain, Cold Rivers, Inc., that provided Ms. Tracy with videotape footage and equipment for producing the documentary. By virtue of its history and stated purpose of producing video documentaries as well as news footage to television networks, the district court found CMCR to be a "news agency" as that term is used in the statute.

The district court’s decision in Doty further extended the outlines of the privilege for non-traditional newsgatherers when it granted the protection to individuals who commented anonymously on a newspaper’s website. In Doty, the individuals were protected because they were sufficiently connected to the newspaper, not because they themselves were gathering news.

A person who might have trouble obtaining the protection of the Montana shield law would be a true freelancer, e.g. an author doing research for a book, who had no connection with the listed media.

Nebraska's shield law applies to all news gatherers, whether "traditional" ones or not. So long as a person is "engaged in procuring, gathering, writing, editing, or disseminating news or other information to the public," the statute provides coverage. Neb. Rev. Stat. § 20-146. The statute also covers others involved in "processing" such information, and defines processing as including "compiling, storing, transferring, handling and editing of information." Neb. Rev. Stat. § 20-145(6).

The press shield law does not apply by statutory language to non-traditional news gatherers such as authors and academic researchers. The statute is not limited to professional or paid reporters.

Yes. See Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc., 160 N.H. 227, 234 (2010).

The New Jersey statute was amended in 1977 to extend the privilege to all media. The current definition of "news media" includes "newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public." However, N.J.S.A. 2A:84A-21 contains the following qualifying language regarding radio and television:

The provisions of this rule insofar as it relates to radio or television stations shall not apply unless the radio or television station maintains and keeps open for inspection, for a period of at least 1 year from the date of an actual broadcast or telecast, an exact recording, transcription, kinescopic film or certified written transcript of the actual broadcast or telecast.

Although web sites are not specifically mentioned in the statute, the inclusion of "electronic means of disseminating news" is broad enough to include web sites.  Indeed, in Too Much Media, LLC v. Hale, 206 N.J. 209 (2011), the New Jersey Supreme Court stated that the Shield Law was not limited to traditional news outlets but also encompasses other means of disseminating news, which are similar to traditional news sources.  See also In re Jan. 11, 2013 Subpoena, 432 N.J. Super. 570 (Law Div. 2013) (applying Too Much Media and holding that the writer and editor of a blog reporting on alleged waste corruption and mismanagement in local government was entitled to invoke the Shield Law).

The publisher of an annual report rating various insurers was held to be a news medium, Petition of Burnett, 269 N.J. Super. 493 (Law Div. 1993); a public relations firm hired to manage adverse publicity surrounding a chemical explosion was held not to be a news medium, In re Napp Technologies, Inc. Litigation, 338 N.J. Super. 176 (Law 2000).

Rule 11-514 reserves the privilege to persons involved in “gathering, procuring, transmitting, compiling, editing, or disseminating news,” as well as their employers. Rule 11-514(B) NMRA. The statutory privilege applicable to nonjudicial proceedings extends to “working associates of a journalist or newscaster” – persons “who work[] for,” or who are “employed by the same individual or entity” as, the journalist or newscaster. NMSA 1978, § 38-6-7(A), (B)(9) (1973).

 

Neither the rule nor the statute self-evidently protects bloggers or other persons not associated with mainstream media; the rule, for example, defines “news media” as “newspapers, magazines, press associations, news agencies, wire services, radio, television, or other similar . . . means of disseminating news to the general public.”  Rule 11-514(A)(5) NMRA.

Because of its broad definition of "journalist"—"one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news" intended for any professional medium "which has as one of its regular functions the processing and researching of news intended for dissemination to the public"—the Shield Law encompasses a broad array of newsgatherers. As noted, Civil Rights Law § 79-h was specifically amended in 1981 to broaden the definition of "journalist" to include, among others, freelance authors. See, e.g., In re Huddy, 32 Med. L. Rptr. 1994 (N.Y. Sup. Ct. N.Y. Cty. 2004) (finding that a magazine product tester qualifies as a journalist protected by the shield law).

In Murray Energy Corp. v. Reorg Research, Inc., 152 A.D.3d 445, 58 N.Y.S.3d 369 (N.Y. App. Div. 2017), the Appellate Division held that an organization that provided information about debt-distressed companies via daily e-mails was a professional medium or agency with a primary function of disseminating news to the public and therefore could invoke the Shield Law. Although the organization's audience of 375 unique subscribers was relatively limited, and the organization had high subscription fees and restricted further dissemination of its content, such features were not uncommon among niche publications that focused on topics not ordinarily covered by the general news media.  In addition, the court noted that conditioning Shield Law protection on a “fact-intensive inquiry analyzing a publication’s number of subscribers, subscription fees, and the extent to which it allows further dissemination of information is unworkable” and would lead to “a potential ‘chilling’ effect.” Id. at 447.The court distinguished the Second Circuit’s holding in In re Fitch, Inc., 330 F.3d 104, 111 (2d Cir. 2003), which denied Shield Law protection to a credit rating agency, explaining that this organization’s editorial staff was “solely responsible for deciding what to report on” and that it did “not accept compensation for writing about specific topics or permit its subscribers to dictate the content of its reporting.”  152 A.D.3d at 447 (“[C]ourts have found the extent of a publication's independence and editorial control to be important in determining whether to apply the Shield Law.”).

Significantly, Fitch reported only on its own clients' transactions rather than any transactions it deemed newsworthy. Such practice, the Second Circuit held, "weighs against treating Fitch like a journalist." 330 F.3d at 111. Likewise, in PPM America, Inc., 152 F.R.D. 32 (1993), the analysts who compiled a newsletter with limited circulation were not protected by the Shield Law.  However, certain federal courts applying a First Amendment privilege have, on occasion, held that credit rating agencies are "journalists" protected by the reporter's privilege.  See, e.g., In re Pan Am Corp., 161 B.R. 577, 580-82 (S.D.N.Y. 1993).

Although case law in North Carolina has principally dealt with traditional journalists, the statute's broad definitions of "journalist" and "news medium" are meant to be inclusive of all individuals and media involved in the distribution of news. Any person who is engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium is considered a journalist under the shield law. N.C. Gen. Stat. § 8-53.11(a)(1). Any company or entity that is engaged in the business of news gathering, as well as the employees, independent contractors, and agents of that company or entity, is also a "journalist" under the shield law. Id. The agents, independent contractors, or employees of a person who is a journalist may also claim the protection of the shield law. Id.

North Dakota does not have any case law that discusses the application of the privilege to any untraditional news gatherers. The statute is unclear as to whether it would apply to news librarians or others involved in the storage of news.

Dun & Bradstreet, Inc. was required to disclose confidential sources because its bi-monthly report on the financial status of individuals and businesses was a periodical which did not fit within the "newspaper or any press association" language of Ohio's statutory shield law. Deltec, Inc. v. Dun & Bradstreet, Inc., 187 F.Supp. 788 (N.D. Ohio 1960).

There is no case law to define how broadly the term “journalist” will be interpreted.  Presumably even non–traditional news gatherers such as bloggers will be included if they are “regularly engaged” in some aspect of news preparation and do so for a “news service.”

There is little case law on this topic. Note that "medium of communication" is expansive enough that it includes "pamphlet."  However, in Obsidian Finance Group, LLC v. Cox, a federal district court in Oregon held that an “investigative blogger” that fails to show that she is affiliated with “any newspaper, magazine, periodical, book, pamphlet, news service, wire service, news or feature syndicate, broadcast station or network, or cable television system” would not be entitled to the protections of the media shield statute. Obsidian Fin. Grp., LLC v. Cox, No. CV-11-57-HZ, 2011 WL 5999334, at *1 (D. Or. Nov. 30, 2011).  The subsequent appellate decision in the case did not address the media shield law. See 740 F.3d 1284 (9th Cir. 2014).

A Pennsylvania trial court has held that the owner/publisher of a website that posts news is covered by the Shield Law. Javens v. Doe, 45 Med. L. Rep. 1808, 1811 (Beaver Cty. C.C.P. Mar. 7, 2017). The court explained that because the website “is available to anyone who wishes to access” it, the site “constitutes a newspaper of general circulation.” Id. The court continued:

The fact that the content is published online rather than in a traditional format is inconsequential considering the clear intent of the statute. There is no indication in the language of the Shield Law that its provisions are limited to publications printed in a traditional “hard copy” print format. Further, it is apparent that [the owner/ publisher] operates the website for the purpose of gathering, compiling and publishing news.

Id.

Likewise, a Pennsylvania trial court has applied the First Amendment privilege to an internet website that published an anonymous posting of political commentary. Melvin v. Doe, 49 Pa. D. & C.4th 449, 477 (Allegheny Cty. C.C.P. Nov. 15, 2000).

No Pennsylvania cases address the extent to which the Shield Law or the First Amendment reporter’s privilege protects non-traditional news gatherers such as academic researchers. The Third Circuit, however, addressed the issue of who constitutes a “journalist” for purposes of invoking the privilege in Titan Sports, Inc. v. Turner Broad. Sys. (In re Madden), 151 F.3d 125 (3d Cir. 1998). In that case, the witness who had been subpoenaed was employed by a wrestling company to disseminate fictional information regarding wrestling characters. The Third Circuit adopted the reasoning of the Second Circuit Court of Appeals, which articulated the relevant factors to determine when an individual was entitled to invoke the qualified First Amendment privilege:

First, the court recognized that the process of newsgathering is a protected, albeit qualified, right under the First Amendment. This right emanates from the strong public policy supporting the unfettered communication of information by a journalist to the public. Second, the court required a true journalist, at the beginning of the news-gathering process, to have the intention of disseminating her information to the public. Third, the court stated that an individual may successfully claim the journalist’s privilege if she is involved in activities traditionally associated with the gathering and dissemination of news, even though she may not ordinarily be a member of the institutionalized press. Fourth, the relationship between the putative journalist and her sources may be confidential or nonconfidential. And fifth, unpublished resource material likewise may be protected.

Id. at 128-29 (citing von Bulow v. von Bulow, 811 F.2d 136, 142 (2d Cir. 1987)). Applying this reasoning, the court in In re Madden held that the non-party witness invoking the privilege was not a journalist. The court found that “[b]y his own admission, he is an entertainer, not a reporter, disseminating hype, not news.” Id. at 130. His “reporting” regarding wrestling events constituted little more than creative fiction about admittedly fictional wrestling characters – he “uncovered no story on his own nor did he independently investigate any of the information given to him by [the wrestling company’s] executives.” Id. His primary goal was advertisement and entertainment, not gathering news or disseminating information. Id.

In one case, a federal court held, in an unpublished decision, that the Shield Law does not apply to individuals who have merely “written editorials expressing [their] opinions” about a given news story. Fox v. Lackawanna Cty., 2018 U.S. Dist. LEXIS 142458, at *4 (M.D. Pa. Aug. 22, 2018). The underlying case involved allegations that corrections officers had sexually abused female inmates. The defendants subpoenaed David Davison to appear for a deposition. Mr. Davison, representing himself pro se, moved to quash the subpoena under the Shield Law because “the Scranton Times published his writing as it relates to the sexual abuse at the prison” and because he purportedly was “developing a non-fictional book for hopeful[] publication besides a made for tv screen play based on these facts gained from investigating the sexual abuse alligations [sic] at the prison for over a decade.” Id. at *3 (citations omitted).  He claimed that his relevant knowledge was based on conversations with confidential sources, who worked at the prison, and further that he had “a close relationship with a Scranton Times reporter” and had introduced the reporter to “whistleblowers.”  Id. at *3, 5.

The court denied the motion to quash, holding that Mr. Davison had failed to identify any authority suggesting that any of the facts set out in his motion brought him within the ambit of § 5942(a). Ultimately, he was not able to establish that he was “engaged on, connected with, or employed by” any newspaper and thus, the court held, the Shield Law did not apply. Significantly, the court did not provide any analysis about when an independent journalist is “engaged” or “connected” with a newspaper sufficient to invoke the Shield Law’s absolute protection.

The statute specifically applies to "any person" who receives any confidential information in his or her capacity as a "reporter, editor, commentator, journalist, writer, correspondent, news photographer, or other person directly engaged in the gathering or presentation of news for any accredited newspaper, periodical, press association, newspaper syndicate, wire service, or radio or television station." R.I. Gen. Laws § 9-19.1-2. The Rhode Island Shield Law defines "newspaper" or "periodical" to mean one that is issued at regular intervals and has a paid circulation. R.I. Gen. Laws § 9-19.1-1.

There has been one trial court order holding that an unpublished book author could assert the privilege, but that the party seeking to compel production of the author-to-be's notes and videotapes had overcome the qualified privilege with respect to certain material. The privilege is available for those engaged in the gathering and dissemination of news. A newspaper librarian could assert the privilege on behalf of a newspaper to challenge a subpoena to produce past editions of the paper. These challenges are not unusual, and are most often successful when microfilm copies of the newspaper are available at a public library.

Privilege has only been applied in reporter/confidential source context.

The Tennessee shield law applies to any "person engaged in gathering information for publication or broadcast connected with or employed by the news media or press, or who is independently engaged in gathering information for publication or broadcast." Tenn. Code Ann. § 24-1-208(a). This protection is broad, and there is no case law expressly concerning whether, or to what extent, "non-traditional" newsgatherers would be covered. Nevertheless, the law has generally been given a broad application by Tennessee courts.

“Bias and selectivity in reporting” does not determine applicability of the privilege.  Abraham v. Greer, 509 S.W.3d 609 (Tex. App.—Amarillo 2016, pet. denied).  Rather, courts will rely solely on the definition in the statute.  Id.  The shield law defines “Communication service provider” as “a person or the parent, subsidiary, division, or affiliate of a person who transmits information chosen by a customer by electronic means, including: (a) a telecommunications carrier, as defined by §3, Communications Act of 1934 (47 U.S.C. §153); (b) a provider of information service, as defined by §3, Communications Act of 1934 (47 U.S.C. §153); (c) a provider of interactive computer service, as defined by §230, Communications Act of 1934 (47 U.S.C. §230); and (d) an information content provider, as defined by §230, Communications Act of 1934 (47 U.S.C. §230).” See Tex. Civ. Prac. & Rem. Code §22.021(1) and Tex. Code Crim. Proc. art. 38.11, §1(3).

The statute does not expressly apply to student journalists and would only apply to academic researchers if they fall within the definition of journalist.

The reporter’s privilege in Utah protects “a publisher, editor, reporter or other similar person gathering information for the primary purpose of disseminating news to the public.” Utah R. Evid. 509(a)(1). The Advisory Committee has stated that “[t]he rule incorporates a relatively broad and flexible definition of news reporter to accommodate the ever-changing methods of expression and publication. While there are not many ‘lone pamphleteers’ still functioning, they may have modern-day counterparts on the internet.” Rule 509 advisory committee note (2008).

Although they are not specifically identified in the Vermont Shield Law, the statutory definitions of “journalist” and “journalism” are broad enough to include non-traditional news gatherers.   See 12 V.S.A. § 1615(a).  The Vermont Shield Law also extends the reporter’s privilege to “a person other than a journalist,” where a subpoena seeks “news or information obtained or received from a journalist if a journalist could not be compelled to disclose the news or information” pursuant to the statute.  12 V.S.A. §§ 1615(b)(1)(B), 1615(b)(2)(B).  This applies to both confidential and non-confidential information.  Id.

There is no case law determining whether the reporter’s privilege applies to non-traditional news gatherers, such as authors, freelancers, bloggers, students, unpaid news gatherers, academic researchers, or newspaper librarians.

There are no reporter's privilege cases specifically embracing or refusing to embrace a privilege for non-traditional news gatherers. Snedigar v. Hoddersen, 114 Wn.2d 153, 786 P.2d 781 (1990), explicitly adopts an extended privilege for First Amendment activities, generally.

Also see Section 5 of the shield statute, which defines the covered "news media." See RCW 5.68.010(5); see also Section IV.A (Statutory and case law definitions) above.

In West Virginia, the reporter's privilege laws do not distinguish -- either by statutory language or by case law -- between traditional and so-called "non-traditional" news gatherers. There is no statute or case law addressing whether such non-traditional news gatherers as authors, freelancers, students, unpaid news gatherers, or academic researchers are entitled to the privilege, nor is there any statute or case law addressing whether others connected to the news process, such as newspaper librarians, may assert the privilege. The Hudok court cites to the Von Bulow case and its elaboration on the general criteria used to determine whether one is a member of the class entitled to claim the reporter's privilege. See “Who is covered” above. The Von Bulow court stated that coverage depends upon the person's intent at the inception of the information-gathering process, and whether the person is involved in activities traditionally associated with the gathering and dissemination of news, not whether the person is a member of the institutionalized press. There is no other guidance available on this topic.

No case law addresses the extent to which non-traditional news gatherers may enjoy the shield law’s protections.  However, the requirement that the “news person” engage in news gathering “for an entity described in” Wis. Stat. § 885.14(1)(a) appears to exclude truly independent newsgatherers who are not affiliated with a media entity.

The absolute privilege for confidential information also bars “a person other than a news person” from being subpoenaed regarding “a business transaction between that person and the news person if the purpose of the subpoena is to discover” confidential newsgathering information.  Wis. Stat. § 885.14(3).

There is limited authority in Wisconsin that determines whether the constitutional reporter's privilege applies to non-traditional news gatherers such as authors, freelancers, students, unpaid news gatherers, or academic researchers. A Wisconsin circuit court has concluded that an independent filmmaker collecting information for a documentary film may invoke the reporter's privilege. In re Subpoena to Laura Riccardi, et. al., No. 05CF381 (Wis. Cir. Ct. Jan. 18, 2007). The same court implied that student news gatherers may be entitled to Wisconsin's qualified reporter's privilege. See id.

Not applicable.