5. Threat to human life

There is no case law addressing this issue.

There is no reported First Circuit decision specifically addressing this issue.

There appears to be no statutory or caselaw in the Second Circuit addressing whether threat to human life is a factor the court should weigh in deciding whether privileged material should be disclosed.

Courts in the Third Circuit do not appear to have expressly addressed this point in a relevant context.

No cases in the Fourth Circuit address how and to what degree a judge should consider a threat to human life.

No reported case in the Fifth Circuit addresses whether the court should weigh whether the matter requested in a subpoena creates a threat to human life.

The court is required to weigh the potential harm, such as ultimate death or bodily injury that might occur as a result of the disclosure of a source's identity. Southwell v. Southern Poverty Law Center, 949 F. Supp. 1303 (1996).

There is no statutory or case law addressing this issue.

No Eighth circuit case law addresses this issue in the context of the reporter's privilege.

There is little law in the Ninth Circuit that specifically addresses whether a threat to human life should be weighed in determining whether or not to quash a subpoena. The court in Star Editorial, Inc. v. United States District Court, however, did take concerns of retaliation and fear of exposure to harm into account when interpreting California case law. See 7 F.3d at 861 (9th Cir. 1993) (denying defendant tabloid’s request for a writ of mandamus because California law controlled under Federal Rule of Evidence 501; therefore, the court applied the balancing test from Mitchell v. Superior Court, 37 Cal. 3d 268 (1984)). The Star Editorial, Inc. court stated, “in some cases, concerns of retaliation or fear of exposure may justify refusing disclosure, even if the party has no other avenue to obtain the information.” 7 F.3d at 861. The court limited this exception to cases where “the information relates to matters of great public importance and the risk of harm to the source is substantial.” Id. (citing Mitchell, 37 Cal. 3d at 283).

There is no Alabama statutory or reported case law addressing the application of the privilege when the subpoenaed matter involves a threat to human life.

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

There is no statutory or reported case law addressing this issue. However, in In re Hibberd, the Arizona Superior Court granted a motion to quash a subpoena even though the subpoenaed materials arguably would have enabled law enforcement to identify an at-large serial arsonist posing a threat to human life. In re Hibberd, 262 GJ 75, Feb. 26, 2001.

The Arkansas Supreme Court has not addressed whether the courts must weigh whether the matter subpoenaed involves a threat to human life.

There is no statutory or case law addressing this issue.

There is no specific requirement in the rules or case law that the court must weigh whether the matter subpoenaed involves a threat to human life. However, since the court must balance the interest of the person seeking the information against the First Amendment interest of the newsperson and the public, it is conceivable that threat to human life would be one factor in that balancing act.

See VI-A supra, but this topic has not been directly addressed.

If the party seeking information has shown by competent evidence that both prongs of the Zerilli test are satisfied—i.e., that the information is relevant and that no other reasonable sources for it exist—the court arguably may consider whether the information involves a threat to human life as part of the contested third element of whether the public’s interest in protecting the newsgathering process outweighs the private interest in disclosure.  Compare Grunseth v. Marriott Corp., 868 F. Supp. 333, 335-36 (D.D.C. 1994) (finding “no overwhelming or compelling societal interest in overcoming the presumption of favoring First Amendment protections for a reporter’s sources”), with Lee v. Dep’t of Justice, 401 F. Supp. 2d 123 (D.D.C. 2005) (criticizing proposed public/private interest balancing test as “inherently unworkable”).

Although not a part of the Reporters' Privilege Act, the Rules of Civil Procedure enable the court to consider a person's safety as part of its decision-making process on whether the quash the subpoena. Super. Ct. Civ. R. 45 (c)(3)(B)(ii).

The D.C. shield law is silent as to whether the court must weigh if the subject of a subpoena involves a threat to human life.  Because the shield law absolutely protects sources, a court most likely cannot consider whether the identity of the source involves a threat to human life.  However, because the balancing test for disclosure of unpublished news or other related information includes an element concerning an “overriding public interest,” D.C. Code § 16-4703(a)(3), a threat to human life would likely be considered within that prong of the test.

The privilege does not require the court to weigh whether the matter subpoenaed involves a threat to human life, and this issue has not been addressed in Florida courts.

There is no provision in Georgia law that requires a court to consider whether the matter subpoenaed involves a threat to human life.

There is no authority in Hawai'i addressing this factor.

There is no requirement that the court weight whether the information sought involves a threat to human life. Presumably, however, such a threat would have heightened significance in the balancing prescribed under the Branzburg test.

Rule 45 of the Federal Rules of Civil Procedure indirectly addresses this point by addressing the undue hardship a person subject to the subpoena may encounter. Fed. R. Civ. P. 45(c)(3)(B).

There is no statutory or case law on this issue.

No reported cases or statutory authority address the issue, but if the evidence sought is cumulative, any balancing of competing interests would be affected by this less critical need and the reduced likelihood of admissibility.

The Kansas shield law identifies various circumstances that may be viewed as a “compelling interest” sufficient to satisfy the test identified at K.S.A. 60-482(a).  One of these is when it is shown that information in issue relates to “an imminent act that would result in death or great bodily harm.”  K.S.A. 60-482(b)(2).

No reported decisions.

There is no statutory language or Louisiana case law addressing this issue.

No Maine court has addressed whether a subpoena on the press involves a threat to life.

Maryland law has not addressed this.

There is no case law on this issue.

There have been no appellate cases discussing this precise issue. However, under MCL 767.5a(1), as stated above, when information is sought for an inquiry based on a crime punishable by life imprisonment, a news gatherer must disclose the “identity of an informant, any unpublished information obtained by an informant, or any unpublished matter or documentation” from that informant.

Minnesota case law and statutes do not expressly require the court to weigh whether the matter subpoenaed involves a threat to human life. Consideration of such a factor likely would be appropriate under other factors of the test.

There is no statutory or case law addressing this issue.

There is no statutory or case law addressing this issue.

There is nothing in the statutes, nor any case law, on the issue of threat to human life.

No reported cases address whether courts should consider threat to human life in addressing shield law privilege.

In light of the absolute nature of the privilege, Nevada cases have not addressed whether a judge is required to weigh whether the mattered subpoenaed involves a threat to human life.

There is no case law or statute addressing this issue.

No decision of the court has addressed the issue of threat to human life, nor does the statute itself deal with this issue.  The Shield Law excludes from the definition of “in the course of pursing professional activities” circumstances where the reporter is an eyewitness to, or a participant in, any act involving physical violence or property damage. Additionally, the statute governing newsroom searches permits a search where there is probable cause to believe "seizure is necessary to prevent the death of or serious bodily injury to a human being." N. J. S.A. 2A:84A-21.9.

No New Mexico law specifically addresses this issue.

There is no statutory or case law addressing this issue.

Neither cases nor statutes in North Carolina examine whether courts are required to weigh whether the matter subpoenaed involves a threat to human life.

The court is not required to weigh whether matter subpoenaed involved a threat to human life. However, this factor should be included by the court in determining whether nondisclosure would result in a miscarriage of justice.

This issue has not been addressed by the Oklahoma courts.

No statutory or case law addressing this issue.

There is no statutory or case law in Pennsylvania addressing this issue.

Under the Rhode Island Shield Law, one circumstance which will warrant divesting of the privilege is where there is substantial evidence that disclosure will "prevent a threat to human life."

There is no requirement to weigh whether the matter subpoenaed involves a threat to human life, but if the party seeking to compel the production of that matter were able to establish the threat to human life, the motion for a protective order would most likely be denied.

The "importance of confidentiality" factor in Hopewell certainly takes this into consideration.

There is no statutory or case law specifically on this issue.

In the criminal context, a journalist can be compelled to give up a confidential source upon a clear and specific showing that disclosure is “reasonably necessary to stop or prevent reasonably certain death or substantial bodily harm.”  See Tex. Code Crim. Proc. art. 38.11, §4(a)(4). No further showing is required to enforce this exception to the privilege.

In determining whether the reporter’s privilege can be overcome in the case of subpoenas seeking confidential sources, Rule 509 requires that “the person seeking the information demonstrate[] by clear and convincing evidence that disclosure is necessary to prevent substantial injury or death.”

The Vermont Shield Law does not contain a carve-out for threats to human life. Thus, in such situations, the statute’s absolute protection would apply to confidential information and the statute’s three-prong test would apply for non-confidential information.  Assuming the first two prongs of the statutory test were met for non-confidential information, a threat to human life would likely constitute “a compelling need for disclosure.”  12 V.S.A. § 1615(b)(2).

The court is not required to weigh whether the information subpoenaed involves a threat to human life.

Washington's case law has not yet squarely addressed this issue. See Section II.A (Shield law statute) above.

The West Virginia’s Reporter’s Privilege statute, W.Va. Code § 57-3-10, mandates that no reporter may be compelled to testify or produce information concerning the identity of a confidential source without the source’s consent, unless such testimony is necessary to prevent imminent death, serious bodily injury or unjust incarceration.  There are no cases in West Virginia discussing this issue.

There is no authority in Wisconsin that specifically requires courts to weigh whether the information subpoenaed involves a threat to human life.

Not applicable.