3. Grand jury

In an unpublished decision, the United States District Court for the District of Colorado quashed a grand jury subpoena that had been issued on an UPI reporter as part of a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

In Branzburg v. Hayes, the Supreme Court held that “newsmen are not exempt from the normal duty of appearing before a grand jury and answering questions relevant to a criminal investigation.” 408 U.S. 665, 685 (1972).  The Court reasoned that the necessity of providing grand juries with all available information to facilitate the proper administration of justice outweighs the First Amendment interest asserted by reporters.  Id. at 686-87.

Prior to Branzburg, the First Circuit courts had decided two cases in which grand juries sought confidential information from “reporters” in the course of investigating crimes.  In both cases, the courts compelled the disclosure of the information.

In United States v. Doe (In re Falk), a professor was subpoenaed to testify before a grand jury that was investigating crimes related to the release and dissemination of the Pentagon Papers.  332 F. Supp. 938 (D. Mass. 1971).  The professor was a writer who claimed that he relied on individuals’ trust in order to obtain confidential information from them.  The court held that the reporter’s privilege extended to academics in their writing; however, it required the professor to disclose his sources of information because he did not have a highly confidential relationship with his contacts and because the request was limited, reasonable, and intended to aid the grand jury in a very specific investigation.

In United States v. Doe (Appeal of Popkin), the appellant was a professor who had written numerous articles on the Vietnam war.  460 F.2d 328 (1st Cir. 1972).  He was subpoenaed by a grand jury to provide information that he had obtained in his scholarly capacity regarding the Pentagon Papers.  The First Circuit affirmed the district court’s decision to hold him in civil contempt for failing to answer certain questions regarding his sources.  The court found the professor was not protected by the reporter’s privilege because he had obtained this information during conversations with other professors and not in his capacity as an information gatherer and reporter.

In Cusumano v. Microsoft Corp., the First Circuit refused to compel an academic to reveal the sources for his publications, despite the fact that the information was relevant and important to an antitrust case, since the information could be available through other sources.  162 F.3d 708, 716 (1st Cir. 1998).  Although Cusumano did not involve a grand jury proceeding, this request took place during pre-trial discovery in the Department of Justice’s antitrust case against Microsoft.

In New York Times Co. v. Gonzales, 459 F.3d 160 (2d Cir. 2006) the Second Circuit explicitly refused to decide whether there was a common law privilege under Rule 501 of the Federal Rules of Evidence for reporters to withhold sources from a grand jury. If a privilege existed, it was overcome by the government's compelling interest in investigating the unauthorized disclosure of imminent law enforcement actions. Id. at 171. In Gonazles, the prosecutor sought the phone records of The New York Times in connection with an investigation concerning the unauthorized disclosure of government plans to seize assets of suspected terrorist organizations. Id. at 163. The court limited its finding to the facts of this case, explicitly distinguishing it from a case involving government misconduct or corruption. Id. at 171-72. The court similarly found that there was no protection under the First Amendment, holding that the government interest in this case trumped any privilege outlined in the various Branzburg opinions, with the exception of Justice Douglas' dissent. Id. In dissent, Judge Sack urged the court to recognize a common law privilege, explaining, "[a] qualified journalists' privilege seems to me easily ñ even obviously ñ to meet [the qualifications set forth by the Supreme Court in Jaffe]. The protection exists. It is palpable; it is ubiquitous; it is widely relied upon; it is an integral part of the way in which the public is kept informed and therefore of the American democratic process." Id at 181. Echoing the concerns expressed by Judge Tatel in the Judith Miller case, Sack urged the court to adopt a different test for cases involving leak investigations. Id. at 185.

While the Third Circuit has held that the qualified privilege applies to grand jury proceedings, courts have found that the investigation of possible crimes represents a countervailing constitutional interest that affects the applicable balancing test. See, e.g., In re Grand Jury Subpoena of Williams, 766 F. Supp. 358, 369 (W.D. Pa. 1991), aff'd without opinion by equally divided court, 963 F.2d 567 (3d Cir. 1992) (en banc); see also In re Grand Jury Empaneled Feb. 5, 1999, 99 F. Supp. 2d at 498, 500 (upholding subpoena in part because it was issued in connection with grand jury proceeding protected by the Fifth Amendment); In re Gronowicz, 764 F.2d 983, 986 (3d Cir. 1985) (en banc) (recognizing that privilege “yields, if the circumstances so require, to the compelling government interest in investigation of crime”).

In United States v. Sterling, 818 F.Supp.2d 945, 947 (E.D. Va. 2011), two grand jury subpoenas were issued for a reporter’s testimony on a confidential source.  The district court quashed the first, earlier issued subpoena on the basis of a reporter’s privilege but found partial waiver of the privilege as to certain information that had been disclosed to a third party.  Id.  The district court also quashed the second, later issued subpoena on the same grounds and found that there existed “more than enough [circumstantial] evidence to establish probable cause to indict Sterling.” Id. at 950.

On appeal, the Fourth Circuit reversed the district court’s order to quash a subsequent trial subpoena and rejected the existence of a reporter’s privilege in a criminal proceeding.  United States v. Sterling, 724 F.3d 482 (4th Cir. 2013).  In its holding, the court did not directly address the subpoenas issued during the grand jury proceedings. However, the Fourth Circuit did rely on the Supreme Court decision in Branzburg, which arose in the context of a grand jury investigation and where the high court found no immunity for reporters “on First Amendment grounds, from testifying against the other, before the grand jury or at a criminal trial.” Id. at 493 (citing Branzburg, 408 U.S. at 690-91).

In the event a privilege still exists before a grand jury in the Fourth Circuit, the language in Shain, a criminal case, indicates that at the very best, the Court would consider a reporter’s privilege only upon a showing of confidentiality and governmental harassment. See Shain, 978 F.2d at 852. Even if the reporter makes such a showing to initiate a balancing of interests under the LaRouche test, a “compelling law enforcement interest” is likely to tip the balance in favor of disclosure. See United States v. King, 194 F.R.D. 569, 585 (E.D. Va. 2000).

The Fifth Circuit construes Branzburg v. Hayes, 408 U.S. 665 (1972), narrowly when considering grand jury subpoenas or subpoenas in criminal trials seeking non-confidential information. See In re Grand Jury Subpoenas, 2001 WL 940433, 29 Media L. Rep. 2301 (5th Cir. Aug. 17, 2001) (per curiam) (unpublished). It has declined to recognize a qualified reporter's privilege for non-confidential information in the context of a criminal case. See United States v. Smith, 135 F.3d 963, 971-72 (5th Cir. 1998). It further has equated the compulsory process at issue in the criminal context with the grand jury subpoena at issue in Branzburg. Id. at 971. Thus, absent a showing of harassment, reporters must comply with subpoenas for non-confidential information in grand jury and criminal cases in the Fifth Circuit, so long as the information sought is identified with sufficient specificity, is relevant, and is admissible. Id.

No Fifth Circuit case has decided whether confidential information provided in response to grand jury subpoenas may be withheld, post-trial, from public view under the reporter’s privilege doctrine. However, one district court has indicated a willingness to consider such an argument. See United States v. Valencia, 2006 WL 3707867, at *10 (S.D. Tex. 2006) (on a motion for limited protective order, concluding that redactions sufficiently protected the identity of the publishers’ sources such that the limited disclosures did not undermine any genuine First Amendment interest the publishers might have in protecting their data and sources).

Where the press is subpoenaed in the context of a grand Jury investigation, there is no doubt as to whether the Sixth Circuit recognizes any special prerogative of the press to resist the subpoena. In the only reported federal decision within the Sixth Circuit that addresses the reporters' privilege in a grand Jury context, the Sixth Circuit opined that the First Amendment provides the press with protection from grand jury subpoenas only where issued in bad faith to harass the press or to disrupt its relationship with its sources, and upheld the use of a grand jury subpoena to obtain video outtakes recorded by a television journalist in a context in which the taped subjects expected anonymity. In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987).

However, the courts' apparent negation of any greater First Amendment protection appears to have been nonbinding dicta because the court found that, even if strict First Amendment protection applied, its demands were satisfied given the evidence in the case. See Southwell v. Southern Poverty Law Ctr., 949 F.Supp. 1303 (W.D. Mich. 1996) (Sixth Circuit's negation of First Amendment reporter's privilege was "dictum").

Addressing the test for strict First Amendment scrutiny, the Sixth Circuit ruled that the government had succeeded in making a "clear and convincing showing" that the journalist had "information that is clearly relevant to a specific violation of criminal law," and that "the information is not available from alternative sources." The Sixth Circuit asserted, however, that the First Amendment requires no such standard, making successful resistance to a grand jury subpoena quite difficult.

Nevertheless, 11 years later, the Sixth Circuit applied the First Amendment to uphold a newspaper's refusal to comply with a National Labor Relations Board civil subpoena seeking the identity of a confidential advertiser. NLRB v. Midland News, 151 F.3d 472 (6th Cir. 1998). Although in Midland Daily News, the Sixth Circuit made no mention of its earlier ruling in Grand Jury, its application of the First Amendment to bar enforcement of the NLRB subpoena buttresses the assertion that the court's opinion in Grand Jury was dicta to the extent that it denied the existence of a First Amendment reporter's privilege.

No federal cases in the Seventh Circuit discussed whether the reporters' privilege applies to grand jury subpoenas.

The Eastern District of Arkansas in In re Grand Jury Subpoena ABC, Inc., 947 F. Supp. 1314 (1996), held that there is no reporter's privilege in the grand jury context, at least absent bad faith or an abuse of grand jury function. The court found the Supreme Court's decision in Branzburg controlling on the question, interpreting Justice Powell's concurring opinion narrowly.

Generally, reporters in the Ninth Circuit are not entitled to a First Amendment privilege in refusing to testify before a federal grand jury regarding information received in confidence. See In re Grand Jury Proceedings (Scarce v. United States), 5 F.3d 397, 400 (9th Cir. 1993) (affirming a judgment holding an academic author in contempt for refusing to answer certain questions asked by a federal grand jury after he claimed he was entitled to a scholar’s privilege, similar to the reporter’s privilege). The U.S. Supreme Court, and consequently the Ninth Circuit, do not recognize the privilege in most grand jury proceedings, based on the theory that whatever burden might result from requiring reporters to testify would not override the public interest in law enforcement and in ensuring effective grand jury proceedings. See id. (citing Branzburg v. Hayes, 408 U.S. 665, 690 (1972)).

Several decisions reflect courts’ reluctance to quash grand jury subpoenas issued to journalists. In In re Grand Jury Subpoenas to Fainaru-Wada & Williams, for example, the district court denied a motion to quash filed by two reporters with the San Francisco Chronicle who published articles and co-authored a book relating to the prosecutions of those involved with the Bay Area Laboratory Co-Operative (“BALCO”) and baseball player Barry Bonds’s alleged use of performance-enhancing drugs. See 438 F. Supp. 2d 1111, 1113 (N.D. Cal. 2006). The articles and book reported on and quoted testimony given to the grand jury during the BALCO investigation, leading to a grand jury subpoena to determine the reporters’ source for the testimony. See id. The court rejected a First Amendment-based qualified reporter’s privilege, on the basis that cases recognizing such a privilege did not involve grand jury proceedings. Id. at 1116. According to the court, because there was not “any abuse of the grand jury process,” no balancing of interests under the First Amendment was necessary. Id. at 1117-18. The court also refused to recognize a common-law reporter’s privilege under Federal Rule of Evidence 501, explaining that “even if a reporter’s privilege exists or should be recognized under the federal common law, the Court concludes that it would be overcome on the facts of this case.” Id. at 1119.

In In re Grand Jury Subpoena (Wolf v. United States), the Ninth Circuit filed an unpublished memorandum opinion that affirmed a district court order finding freelance videographer Joshua Wolf in civil contempt. 201 Fed. App’x 430, 434 (9th Cir. 2006). Wolf had refused to abide by a grand jury subpoena ordering him to produce unaired video footage he shot during a 2005 demonstration in San Francisco. See id. at 431. The unpublished opinion rejected Wolf’s appeal and affirmed the district court’s order, stating that the Ninth Circuit’s Scarce decision interpreting Branzburg required a limited balancing of First Amendment interests only in certain circumstances, none of which existed in Wolf’s case. See id. at 432. The Ninth Circuit agreed with the district court that there was no showing that the grand jury was not being conducted in “good faith,” or that there was no legitimate law enforcement need involved, or that there was only a remote and tenuous relationship to the investigation. Id. at 432-33 (citing Scarce, 5 F.3d at 401). In any event, according to the Wolf court, “[e]ven if we applied a balancing test, we would still affirm.” 201 Fed. App’x at 433 n.2.

The Ninth Circuit also noted the argument presented by Wolf and amici that the court should recognize a federal common-law reporter’s privilege. Citing Branzburg and Scarce, the court stated only that “[t]his argument has been squarely rejected.” Wolf, 201 Fed. App’x at 433.

These decisions nevertheless show that, at a minimum, journalists are protected from grand jury inquiries where a grand jury investigation is instituted or conducted other than in good faith, where the information sought bears only a remote and tenuous relationship to the subject of the investigation, or where there is some other reason to believe that the testimony implicates confidential source relationships without a legitimate need for law enforcement. In Bursey v. United States, the Ninth Circuit upheld a reporter’s privilege in a grand jury case where there was no substantial connection between the information sought and the conduct being investigated. 466 F.2d 1059, 1088 (9th Cir. 1972), superseded on other grounds by statute, as recognized in In re Grand Jury Proceedings (Doe v. United States), 863 F.2d 667 (9th Cir. 1988).

There is no statutory or case law in Alabama that addresses the standards for asserting the reporter's privilege to overcome a grand jury subpoena.

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)

The Arizona Shield Law applies to proceedings "before any jury, inquisitorial body or commission . . . ." A.R.S. § 12-2237. In In re Hibberd, an unpublished decision, the Arizona Superior Court reaffirmed the statute's absolute protection for confidential source information in grand jury proceedings. In that case, several homes under construction in Phoenix had been destroyed by fires set by an eco-terrorist/serial arsonist. A grand jury issued a subpoena to James Hibberd, a reporter for Phoenix New Times, a local weekly, requiring him to produce tape-recorded conversations with the alleged arsonist, as well as unpublished notes and various electronic and computer data. The grand jury sought this information to identify the person who represented himself to the reporter to be the arsonist. The Arizona Superior Court granted the New Times and Hibberd's Motion to Quash.

While Hibberd had made several arguments under the First Amendment and the Arizona Constitution, the court found the Arizona Shield Law dispositive. The court rejected the assertion that the statute did not apply where the confidential source was an at-large criminal. It wrote: "This is not a close question. The state argues that sound public policy requires that this court read the legislature's plain words to exclude a person such as the arsonist from the operation of Arizona's legislatively-enacted press shield law. . . . It is not for the judicial branch to modify the plain language of a 64 year old statute because the court may believe that something else better serves the public." In re Hibberd, 262 GJ 75 (Feb. 26, 2001). Nevertheless, the court chastised Hibberd and New Times for "choos[ing] to give a public platform to a criminal, a criminal who remains on the loose and who remains a threat to the general public." Id. [The court's Minute Entry is posted at http://www.superiorcourt.maricopa.gov/ publicInfo/rulings/rulingsReaditem.asp?autonumb=88]

The Arizona Media Subpoena Law does not apply to grand jury proceedings. A.R.S. § 12-2214(D).

Because the statute specifically mentions grand juries, it seems unlikely that there would be a different, or lower, level of protection of sources with respect to grand jury proceedings. There are no appellate court cases construing the statute in the context of a grand jury proceeding. The statute, however, does not apply to federal grand jury subpoenas. In re Grand Jury Subpoena Am. Broad. Co., 947 F. Supp. 1314 (E.D. Ark. 1996).

There is no California state statutory or case law addressing this issue, but it is noteworthy that California shield law protections were adopted in response to the United States Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972), which held that the First Amendment did not provide a newsperson’s privilege against testifying before a criminal grand jury. See Delaney v. Superior Court, 50 Cal. 3d 785, 796, 789 P.2d 934, 268 Cal. Rptr. 753 (1990); Miller v. Superior Court, 21 Cal. 4th 883, 899, 986 P.2d 170, 89 Cal. Rptr. 2d 834 (1999). To avoid such an outcome under California law, California “expanded the scope of the newsperson’s protection from disclosure beyond what the First Amendment provides.” Miller, 21 Cal. 4th at 899.

In addition, some courts have concluded that the shield law was elevated to California’s Constitution in part to overrule Rosato v. Superior Court, 51 Cal. App. 3d 190, 124 Cal. Rptr. 427 (1975), which affirmed an order compelling a reporter to divulge the source of a leaked grand jury transcript. E.g., Liggett v. Superior Court, 260 Cal. Rptr. 161, 168, 224 Cal. App.3d 426 (Cal. Ct. App. 1989) (unpub. dec.); Delaney v. Superior Court, 249 Cal. Rptr. 60, 65, 215 Cal. App. 3d 681 (Cal. Ct. App. 1988) (unpub. dec.). This history and the cases mentioned above suggest that California courts would treat grand jury proceedings the same as other criminal matters, and extend shield law protections to journalists called to testify before grand juries, subject to the same constitutional balancing in criminal cases.

Evidence Code § 1070(a) states that the shield law applies “in any proceeding as defined in Section 901.” Holding that the shield law applies to grand jury subpoenas would be consistent with decisions interpreting Section 901 in the context of other privileges. See, e.g., People v. Petrilli, 226 Cal. App. 4th 814, 822 n.3, 172 Cal. Rptr. 3d 480 (2014) (a “‘[p]roceeding’ is defined broadly to mean virtually any type of hearing at which ‘testimony can be compelled by law [to be] given,’ including grand jury proceedings”) (interpreting the spousal testimonial privilege).

While there has been no case law in Colorado testing the Shield Law in the context of a grand jury proceeding, the statute is written broadly enough to be applicable to such proceedings. The statute clearly states that the privilege attaches in any "criminal investigation, discovery procedure, hearing, trial or other process for obtaining information conducted by, before, or under the authority of any judicial body of the state of Colorado." C.R.S. § 13-90-119(1)(e).

Neither the statute nor the case law analyzes the privilege in the context of grand juries.

The D.C. Circuit has split on whether to recognize a First Amendment reporter’s privilege in the grand jury context.  In re Miller, 397 F.3d 964 (D.C. Cir. 2005), opinion superseded by 438 F.3d 1141 (D.C. Cir. 2006).  That case, which involved grand jury subpoenas being sent to several journalists, resulted in four different opinions from the three-judge panel.  First, writing for the court, Judge Sentelle found no First Amendment privilege with regard to grand jury subpoenas and stated that even if a common law privilege exists, it was overcome on the facts.  Second, in a separate concurrence, Judge Sentelle argued that there is no common law reporter’s privilege in the grand jury context.  Third, Judge Henderson concurred separately to advocate for a narrow holding that “any federal common-law reporter’s privilege that may exist is not absolute and that the . . . evidence defeats whatever privilege we may fashion.”  Fourth, Judge Tatel concurred in the judgment alone and wrote that while some “First Amendment safeguards” must exist for reporters who receive grand jury subpoenas, there were “no grounds for a First Amendment challenge to the subpoenas at issue here,” and likewise that while “the consensus of forty-nine states plus the District of Columbia . . . would require us to protect reporters’ sources as a matter of federal common law,” that common law privilege would be overcome based on the harm caused by the leak at issue and the grand jury’s demonstrated need for the reporters’ testimony.

Even in the grand jury context, however, it is clear that the press may seek protection from the court where harassment or bad faith is demonstrated.  In re Special Counsel Investigation, 332 F. Supp. 2d 26 (D.D.C. 2004); see also Reporters Comm. for Freedom of Press v. AT&T Co., 593 F.2d 1030, 1049 (D.C. Cir. 1978) (journalists “have no right to resist good faith subpoenas duces tecum directed at a third-party’s business records” in criminal context) (emphasis added); In re Grand Jury 95-1, 59 F. Supp. 2d 1, 8 (D.D.C. 1996) (well established rule for evaluating subpoenas under Fed. R. Crim. P. 17(c) applies to subpoenas implicating the First Amendment); In re Possible Violations of 18 U.S.C. 371, 641, 1503, 564 F.2d 567 (D.C. Cir. 1977) (government need not make preliminary showing before journalist can be compelled to appear before a grand jury; journalist not immune from questioning absent bad faith or harassment).

In In re Grand Jury 95-1, the district court declined to distinguish between subpoenas by which journalists are called on to testify about criminal conduct that they observe and those seeking testimony about the journalists’ general newsgathering and editorial functions, stating that “[t]he line should be drawn at the nature of the proceeding; not depending on how the reporter obtained the information.”  59 F. Supp. 2d at 13.  However, in United States v. Libby, the court held that no First Amendment privilege from a Rule 17(c) subpoena could apply where the reporter was personally involved in the activities that are the predicate for the criminal offense.  432 F. Supp. 2d 26, 44 (D.D.C. 2006).

Because grand jury proceedings do not determine the rights of parties, but merely investigate and/or bring charges, they are "nonadjudicative," and a reporter may decline to provide either the source or the content of information without qualification. 10 Del. C. § 4321. Grand jury proceedings are explicitly excluded from the definition of adjudicative proceedings. § 4320 (1). Even the ability to challenge the truthfulness of the reporter's statement is precluded in nonadjudicative proceedings. § 4323 (b).

The District’s shield law, and the cases decided under it, make no distinction between grand jury subpoenas and other subpoenas.

The standard for overcoming subpoenas to appear before or provide information to the grand jury is the same as the standard for overcoming subpoenas in the context of criminal and civil proceedings. See Morgan v. State, 337 So. 2d 951 (Fla. 1976).

The privilege applies to grand jury subpoenas. See, e.g., O.C.G.A. § 24-5-508 (privilege applies “in any proceeding where the one asserting the privilege is not a party”); In re Paul, 270 Ga. 680, 684, 513 S.E. 2d 219, 223 (1999).

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

None of the Idaho decisions has considered the assertion of a reporter’s privilege in a grand jury context. However, as noted above, the Wright court specifically stated that the analysis of the privilege should be the same regardless of the case setting.

Although Illinois courts have not expressly set forth different standards for grand jury subpoenas relating to the Statute, some Illinois courts have found that grand jury proceedings implicate a compelling public interest that outweighs the public’s interest in the privilege. See People v. Pawlaczyk, 189 Ill.2d 177, 724 N.E.2d 901 (2000)’“”. In Pawlaczyk, two reporters called to testify before a grand jury regarding potential perjury charges against their sources sought to quash the subpoena, arguing that their testimony was not relevant and that disclosure of their sources’ identities did not serve a compelling public interest. Id. at 192, 724 N.E.2d at 910. The Illinois Supreme Court upheld the subpoenas, finding that the reporters’ testimony was relevant to a fact of consequence in the perjury proceedings and that the grand jury proceedings implicated a compelling public interest that outweighed the public’s interest in the reporter-source privilege. Id. at 199, 724 N.E.2d at 914. But see In re Special Grand Jury Investigation, 104 Ill. 2d 419, 472 N.E. 2d 450 (1984) (holding that proof of exhaustion of alternative sources was insufficient to justify stripping the reporter of the statutory privilege when a grand jury requested that the state file an application to deny the privilege to the article’s author).

Indiana’s shield law applies in “any legal proceedings or elsewhere.” Ind. Code § 34-46-4-2. As stated above, the shield law applies to state matters only. Such limitation means that the shield law does not apply when a reporter is called before a federal grand jury.

There is no other source of privilege in a criminal case. The Indiana Supreme Court has rejected application of a qualified privilege exists under either the U.S. or state constitution in criminal cases. See In re WTHR-TV (State v. Cline), 693 N.E.2d 1 (Ind. 1998).

Thus, under current case law, only the identity of a reporter’s confidential source is protected in a grand jury in state court.

No Iowa case relates to the reporter's privilege and grand jury subpoenas. Because the Iowa cases so heavily rely on Branzburg, it is likely the privilege would be more easily subordinated in a grand jury context. See Lamberto, 326 N.W.2d at 308 (noting the state’s interest in a well-founded grand jury inquiry and “concern for the fair administration of criminal justice” may override “a claim of testimonial privilege in criminal matters”).

For purposes of invoking the privilege in state court, see K.S.A. 60-480, et seq.  It should be noted that grand juries are rarely convened under Kansas law. A somewhat-similar procedure journalists may encounter Kansas state courts is the prosecutorial “inquisition.” See K.S.A. 22-3101, et seq. An inquisition is essentially a discovery proceeding, in which the district attorney is authorized to issue subpoenas for testimony under oath regarding alleged violations of state law. See, e.g., K.S.A. 22-3101, et seq.  There is no appellate case law discussing the privilege in the context of an inquisition.

In federal grand jury cases, the courts in Kansas (and throughout the federal system) are bound to follow the decision in Branzburg v. Hayes, 408 U.S. 665 (1972), which involved three distinct grand jury subpoenas. Although Justice Powell’s concurring opinion in Branzburg is cited in most decisions regarding the reporter’s privilege, it is at least debatable whether the Branzburg decision truly establishes the existence of such a privilege, and that the court in Branzburg ordered the reporter-recipients of the grand jury subpoenas in issue to testify in any event.

Kentucky’s statutory privilege applies "in any legal proceeding . . . before any grand or petit jury.” KRS 421.100.

Under the Louisiana shield law, a grand jury may not serve a subpoena upon a reporter unless the prosecutor has certified in writing that the information sought by the subpoena is "highly material and relevant; bears directly on the guilt or innocence of the accused; and is not obtainable from any alternative source." La. R.S. 45:1459(D)(1). A reporter may assert a qualified privilege and refuse to answer questions before a grand jury unless the reporter has witnessed criminal activity or has physical evidence of a crime. Ridenhour, 520 So.2d at 376. The party seeking information must then show that disclosure is necessary to the protection of the public interest and that the subpoena was issued in good faith and not for purposes of harassment. Once such a showing has been made, the trial judge should balance the public interest in having all relevant testimony with the possible chilling effect that disclosure will have on freedom of press and the ability to gather news. Id.

Although "grand juries" are not expressly mentioned in the shield law statute, it does apply to any "judicial, legislative, administrative or other body with the power to issue a subpoena." 16 M.R.S.A. 61(1).

In re Letellier, 578 A.2d 722, 17 Media L. Rep. 2169 (Me. 1990) involved the disclosure of non-confidential outtakes to a grand jury. The outtakes were sought by a subpoena issued by the District Attorney. In ordering disclosure, the Court emphasized the importance of grand jury proceedings, which the Court described as "a unique body guaranteed by both the United States and Maine Constitutions to play an historically vital role in our criminal justice system." Id. at 728–29.

The standards for the privilege do not differ for grand jury subpoenas. See In re John Doe Grand Jury Investigation, 574 N.E.2d 373 (Mass. 1991); In re Pappas, 266 N.E.2d 297 (Mass. 1971).

In Michigan, grand jury subpoenas against reporters are subject to a statute, which provides strong protection against such subpoenas. MCL 767.5a(1). The prohibition against subpoenas to reporters applies to the identity of sources and the unpublished information given by such “informants.” Id. There is no requirement that the informant have a confidential relationship with the reporter.

However, the statute does provide that a subpoena will issue to a reporter if the grand jury is investigating a crime punishable by imprisonment for life, but only when it has been established that the information sought is essential to the purpose of the proceeding and other available sources of the information have been exhausted. Id.

Thus, protection for reporters from subpoenas issued by grand juries is strong in Michigan.

Prosecutor’s subpoenas

Michigan statutes also provide for a special prosecutor’s subpoena to be used in connection with law enforcement investigations. See MCL 767A.2 (authorizing prosecutors to petition for investigative subpoenas). In response to complaints by law enforcement that witnesses in many investigations, especially drug-related investigations, were uncooperative, the legislature enacted a law allowing prosecutors to apply for special subpoenas from judges. See MCL 767A.3 (allowing a judge to authorize a prosecuting attorney to issue investigative subpoenas if certain circumstances are met). The subpoenas required witnesses to appear before the prosecutor before any charges were filed to answer questions propounded by the prosecutor. Id.

The prosecutor’s subpoena is essentially a one-person grand jury. See MCL 767A.5 (explaining that this investigative subpoena requires the party served to appear before the prosecutor to answer questions regarding the felony being investigated or produce relevant documents). However, reporters are immune from such subpoenas unless they are the target of the investigation or if the information has been published. MCL 767A.6(6)

In a highly publicized case, the Lansing State Journal refused to give the Ingham County Prosecutor its unpublished photographers of rioters on the campus of Michigan State University. March 1999 Riots in East Lansing, 463 Mich. at 381. The Supreme Court of Michigan upheld the Journal’s statutory right to be exempt from the prosecutor’s subpoena. Id. at 386.

A grand jury could compel disclosure of confidential or unpublished information under the statute if the conditions for compelling disclosure could be met.

One trial court order referenced in this summary involves a grand jury subpoena where the court upheld the qualified privilege of a television journalist. In re Grand Jury Subpoena, Hinds County Circuit Court, No. 38,664 (Oct. 4, 1989).

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.

There are no different standards in the law for grand jury subpoenas. Grand juries are seldom used in Montana, where prosecutors can file cases by information.

Grand jury subpoenas are treated the same as any other subpoena under the statute. Nebraska rarely utilizes grand juries. The author is not aware of any grand jury subpoenas having been issued to reporters.

NRS 49.275 specifies that the privilege is applicable to grand jury proceedings.

There is no statutory or case law establishing different standards for grand jury subpoenas.

The privilege applies to Grand Jury subpoenas in the same manner as any other proceeding.

Rule 11-514 does not distinguish between grand-jury proceedings and other criminal proceedings.

Civil Rights Law § 79-h applies, on its face, to grand jury subpoenas. See Civ. Rights § 79-h(b), (c) ("[N]or shall a grand jury seek to have a journalist or newscaster held in contempt by any court."). As New York’s highest court, the Court of Appeals, has stated, the constitutional provision proscribing laws which suspend or impair a grand jury's investigative power was "not intended to prevent the Legislature from creating evidentiary privileges or their equivalent that have an incidental impact on investigations." Beach, 62 N.Y.2d at 252. Accordingly, although the Shield Law "may thwart a grand jury investigation, the statute permits a reporter to retain his or her information." Id.

North Carolina's shield law specifically applies to "any grand jury proceeding or grand jury investigation," and no distinction is made between grand jury investigations, criminal trials, and civil actions. N.C. Gen. Stat. § 8-53.11(a)(2).

The North Dakota Supreme Court has stated the nature of the action is something the trial court may consider in determining whether disclosure is appropriate. The statute does not make a distinction between grand jury subpoenas and those issued during discovery. Accordingly, the privilege should not be more difficult to defend at this level.

A reporter may be found to be in civil contempt for refusing to testify before a grand jury concerning a published interview where the subpoena was not issued for the purpose of harassment. In re Grand Jury Witness Subpoena of Abraham, 92 Ohio App. 3d 186, 634 N.E.2d 667 (11th Dist. 1993).

A subpoena for a TV reporter's notes and grand jury testimony regarding her interview with a criminal suspect may be quashed if the subpoena were issued in bad faith, or to disrupt relations between the TV station and its news sources, or if it were otherwise unreasonable or oppressive. In this case, the court found that the subpoena for grand jury testimony and documentary evidence was not unreasonable or oppressive. In re August 28, 2002 Grand Jury Subpoena, 151 Ohio App. 3d 825, 2003-Ohio-1184, 786 N.E.2d 115 (3d Dist.).

The state subpoenaed a newspaper reporter for grand jury testimony regarding her article publishing the name of an alleged drug dealer and quoting him as admitting he was a drug dealer. The court held that the subpoena was not issued for harassment purposes and denied the reporter's motion to quash the subpoena. State v. Jones, 12th Dist. Butler No. CA2005-06-136, 2005-Ohio-4192.

In dicta, the Ohio Supreme Court discussed the qualified constitutional privilege in the context of a murder case and a trial court’s order to television stations to preserve broadcast tapes and outtakes.  See State ex rel. National Broadcasting Company, Inc. v. Lake County Court of Common Pleas, 52 Ohio St.3d 104, 110-11, 556 N.E.2d 1120 (1990). The Ohio Supreme Court reasoned that Branzburg stands for the proposition that a court may enforce a subpoena in a criminal case over a reporter’s claim of privilege as long as the subpoena is issued for a legitimate purpose, and not for harassment.  Id. at 110. The Court noted that if the subpoena is overbroad, the remedy is a motion to quash.  Id. 

The state subpoenaed a newspaper reporter for grand jury testimony regarding her article publishing the name of an alleged drug dealer and quoting him as admitting he was a drug dealer. The court held that the subpoena was not issued for harassment purposes and denied the reporter's motion to quash the subpoena. State v. Jones, 12th Dist. Butler No. CA2005-06-136, 2005-Ohio-4192.

A trial court held a newspaper reporter in contempt for refusing to reveal to the grand jury the date he received confidential information pertaining to the county department of human services.  The Seventh District Court of Appeals reversed, holding that the government was unable to show that the requested information was relevant and material to the investigation into leaks of confidential information by the county agency.  In re April 7, 1999 Grand Jury Proceedings, 140 Ohio App.3d 755, 762, 2000-Ohio-2552, 749 N.E.2d 325 (7th Dist.).

The statute, by its express terms, does not differentiate grand jury from other judicial proceedings.  There is no case law interpreting the statute in a grand jury context.

ORS 44.520 prohibits any judicial body (or any authority having the ability to compel testimony) from compelling the testimony of a reporter. An earlier state Supreme Court decision, in which both state and federal constitutional claims of privilege were rejected, invited this legislative response. State v. Buchanan, 250 Or. 244 436 P.2d 729 (1968).

The Shield Law and First Amendment privilege both apply to grand jury proceedings.

1. Shield Law

The Shield Law expressly applies “in any legal proceeding, trial or investigation before any government unit.” 42 Pa. Cons. Stat. § 5942(a). Thus, by its own terms, the Shield Law applies to grand jury proceedings. See Castellani v. Scranton Times, L.P., 956 A.2d 937, 939 (Pa. 2008); In re Taylor, 193 A.2d 181 (Pa. 1963) (rejecting argument that Shield Law should not protect communications between reporter and source that violated the Grand Jury Act).

In Castellani, the Pennsylvania Supreme Court reaffirmed that Pennsylvania’s Shield Law “protects a newspaper’s source of information from compelled disclosure.” 956 A.2d at 939. In Castellani, the court addressed a defamation case against two newspapers that had published a story alleging that the plaintiffs provided evasive and non-responsive answers to a grand jury. Id. at 939-40. The plaintiffs sought to identify the source, arguing that the act of disclosing information regarding the proceedings before the grand jury was a criminal act and the reporter’s communications with her source should not be privileged. The court held that the source’s identity was protected under the Shield Law even though the source’s communications violated the requirement of grand jury secrecy.

In a footnote, however, the court left open the possibility that its holding might be different in the context of a criminal investigation of a grand jury leak. The court speculated that “[w]ere a situation to arise . . . where the Commonwealth sought a reporter’s evidence concerning the source of a grand jury leak in a criminal investigation or prosecution of that leak, then the Shield Law and the secrecy provision of the Grand Jury Act would be more directly in conflict.” Castellani, 956 A.2d at 953 n.14; see also In re Dauphin Cty. Fourth Investigating Grand Jury, 19 A.3d 491, 509 n.6 (Pa. 2011) (noting in discussion of investigation into alleged grand jury leaks that “we would be remiss if we did not recognize that the improper disclosure of grand jury testimony constitutes criminal conduct and that by seeking protected grand jury information, members of the free press are encouraging, if not abetting, conduct that is criminal in nature”).  That dicta, however, is contrary to longstanding precedent and the explicit text of the Shield Law statute.

2. First Amendment privilege

Pennsylvania courts apply Third Circuit precedent concerning the scope of the First Amendment privilege, see Commonwealth v. Bowden, 838 A.2d 740, 752, 753 n.10 (Pa. 2003), and federal courts in the Third Circuit have applied the First Amendment privilege in the context of grand jury proceedings, see Riley v. City of Chester, 612 F.2d 708, 714 (3d Cir. 1979). For example, the district court in In re Williams, 766 F. Supp. 358, 359 (W.D. Pa. 1991), aff’d, 963 F.2d 567 (3d Cir. 1992), quashed a grand jury subpoena issued to news outlets that had received confidential FBI files related to a criminal trial. The government sought the production of the physical documents provided to the news media, as well as the envelopes, for forensic examination as part of an attempt to uncover the source of the leak. The court rejected the newspapers’ argument that they enjoyed an absolute privilege from disclosing this material. Id. at 369 (“[T]his Court is compelled to conclude the competing interests of the Government are of such a vital concern that they must negate the finding of an absolute privilege here.”). The court nevertheless applied the three-part test for the First Amendment privilege and ruled that the government could not overcome the privilege. Id. The court held that the government failed to demonstrate that it made any effort to obtain the sought-after information from alternative sources, or that its only access to the information was through the reporters.

The Shield Law and First Amendment privilege were both raised in connection with a grand jury proceeding in In re the Twenty-Fourth Statewide Investigating Grand Jury, 907 A.2d 505 (Pa. 2006). In that case, a newspaper company’s computer workstations and hard drives were subpoenaed by the Attorney General’s Office in the course of a statewide grand jury investigation. Denying the paper’s motion to quash, the trial court permitted the Attorney General to search the hard drives’ internet history and cached content, and further imposed a sanction of $1,000 per day when the paper refused to comply with the trial court’s order. On appeal, the newspaper argued, among other things, that (1) the subpoena violated the First Amendment Privacy Protection Act, 40 U.S.C. §§ 2000aa-2000aa-12; (2) the subpoena sought confidential source information on the hard drives, which was absolutely protected from disclosure under the Pennsylvania Shield Law; and (3) the subpoena violated the First Amendment reporter’s privilege. Without specifically addressing any of these arguments, the Pennsylvania Supreme Court reversed the trial court’s order based on “a careful balancing of the respective interests involved.” Id. at 514. Noting the “potential chilling effect” of the trial court’s order, the court held that it was overbroad, that “measures were available to obtain the information subject to the investigation short of outright surrender of the hard drives to the Commonwealth,” and that “this particular method of disclosure is unduly intrusive.” Id. at 513-14. As the court noted, the Attorney General’s office had, in effect, demanded that the “‘filing cabinets’ of the newspapers [be] transferred to the custody and control of the executive branch of the government.” Id. at 514. The court said that “[w]e expressly do not foreclose . . . the utilization by the supervising judge of a neutral, court-appointed expert to accomplish the forensic analysis and report specific, relevant results.” Id. at 514 n.5. It further noted, ignoring the provisions of the Federal Privacy Protection Act, that “any direct and compelled transfer to the executive branch of general-use media computer hardware should be pursuant to a due and proper warrant, issued upon probable cause.” Id. at 514. Significantly, the court also held that the newspaper company was entitled to a copy of the sealed Notice filed by the Office of Attorney General when it submitted the matter for investigation by the grand jury. The court held that the company should receive the Notice, on a confidential basis, so that it could determine whether it had proper grounds to challenge the investigation. Id.at 516.

The privilege is explicitly applicable to grand jury subpoenas. R.I. Gen. Laws § 9-19.1-2. Accordingly, a grand jury subpoena would presumably be treated no differently than any other subpoena.

There does not seem to have been a grand jury subpoena for a reporter since the adoption of the shield law. There is language in Matter of Decker, 471 S.E.2d 462 (1995), that could limit the protection of the shield law if the court should conclude that it is the grand jury seeking to compel testimony or production rather than the prosecutor. In Decker the Supreme Court held that the privilege was effective only against a "party" to the proceeding and did not limit the ability of the court to seek information from a reporter. If the grand jury is a "party" to a grand jury proceeding, the privilege would be applied. If the grand jury is not a party, the privilege would not apply.

There is no statutory or case law addressing this issue.

The Tennessee shield law expressly covers grand jury subpoenas. Tenn. Code Ann. § 24-1-208(a); see also State ex rel. Gerbitz v. Curriden, 738 S.W.2d 192 (Tenn. 1987).

The criminal shield law also addresses grand jury subpoenas for confidential source information under certain circumstances. In particular, if the information or document was disclosed in violation of an oath given to a juror or a witness, a journalist can only be compelled to testify when the person seeking the testimony, production or disclosure makes a clear and specific showing that the subpoenaing party has exhausted reasonable efforts to obtain the confidential source information from alternate sources. See Tex. Code Crim. Proc. art. 38.11, §4(c). In this situation, the Court has the discretion to order an in camera hearing. Id. Furthermore, a court may not order the production of the confidential source until a ruling has been made on the motion. Id.

There is no statutory or case law addressing this issue.

The Vermont Shield Law provides an absolute privilege for confidential information and a qualified privilege for non-confidential information.  It does not contain a carve-out for grand jury proceedings.  See 12 V.S.A. § 1615(b) (applying to all “court[s] or legislative, administrative, or other bod[ies] with the power to issue a subpoena”).

Prior to the Vermont Shield Law’s enactment, the Vermont Supreme Court analogized a criminal inquest to the grand jury investigation in Branzburg and held that “[t]he balancing test adopted in St. Peter does not apply” and therefore a television station had no privilege, qualified or otherwise, to withhold unpublished videotape showing the commission of certain crimes.  In re Inquest Subpoena (WCAX), 2005 VT 103, ¶ 14, 890 A.2d 1240 (Vt. 2005).

The Virginia Supreme Court has not articulated a different standard for grand jury subpoenas.

Washington rarely uses grand juries and there is no case authority regarding grand jury subpoenas.

In grand jury proceedings where the government seeks to compel a reporter to provide information that may identify a confidential source, the Reporters’ Privilege statute, W.Va. Code § 57-3-10, applies. Under this law, no reporter may be compelled to testify concerning the confidential source of any published or unpublished information obtained by the reporter in the course of news gathering activities, or to produce any information or testimony that would identify a confidential source, without the consent of the confidential source, unless such testimony is necessary to prevent imminent death, serious bodily injury or unjust incarceration.

As to information unrelated to the identity of a confidential source, there are no West Virginia cases directly on point addressing a reporter's privilege in the grand jury context.  Nevertheless, the Hudok court acknowledged that a reporter's privilege "will yield in proceedings before a grand jury where the reporter has personal knowledge . . . that bear on the criminal investigation[.]" The Hudok court cited with approval the United States Supreme Court's decision in Branzburg v. Hayes, 408 U.S. 665 (1972), and particularly, that court's explanation of "the obvious public importance of effective criminal investigation and the duty of citizens to furnish to a grand jury relevant information regarding criminal activity of which they are knowledgeable." Hudok, 389 S.E.2d at 191. Although there are no West Virginia cases directly addressing subpoenas to reporters in the grand jury context, it appears that the privilege will give way more readily in the context of a grand jury than in any other type of proceeding.

Nevertheless, the Hudok court did quote from Justice Powell's concurrence in Branzburg, where Justice Powell spoke to the "'limited nature of the Court's holding. The Court does not hold that newsmen, subpoenaed to testify before a grand jury, are without constitutional rights with regard to the gathering of news or in safeguarding their sources.' 408 U.S. at 709. He outlined a balancing test and concluded that if a newsperson 'is called upon to give information bearing only a remote and tenuous relationship to the subject of the investigation,' he would be entitled to First Amendment protection. 408 U.S. at 710." 389 S.E.2d at 190 n.4.  The foregoing quotation by the Hudok court suggests that, if called upon to address the issue of a reporters' privilege in the face of a grand jury subpoena, the West Virginia courts will give a greater amount of deference to a grand jury subpoena than to other types of subpoenas, but such deference will not eviscerate entirely the reporters' privilege, especially in cases where the information sought from the reporter has only a remote or tenuous relationship to the grand jury investigation.

Wisconsin’s shield law does not offer any protection against federal grand jury proceedings.

Wyoming has no statutory or reported court decisions involving reporter’s privilege in regard to grand jury testimony.