a. Reporter

The term "newsperson," as defined in the Colorado shield law, was applied by the United States District Court for the District of Colorado in Quigley v. Rosenthal, 43 F. Supp. 2d 1163, 1173 (D. Colo. 1999). The Colorado statute defines newsperson as "any member of the mass media and any employee or independent contractor of a member of the mass media who is engaged to gather, receive, observe, process, prepare, write, or edit new information for dissemination to the public through mass media." Colo. Rev. Stat. § 13-90-119(3)(a). Mass media is defined in the statute as "any publisher of a newspaper or periodical . . ." Colo. Rev. Stat. § 13-90-119(1)(c). The court held that the Anti-Defamation League was a newsperson under the statute because it published numerous periodicals, books, and pamphlets and regularly engage in news gathering activities.

The United States District Court for the District of New Mexico, in an unpublished decision, held that a defendant reporter accused of disseminating allegedly stolen emails was entitled to the reporter’s privilege for the narrow purpose of protecting his confidential sources.  Amaya v. Bregman, No. 14-cv-0599 WJ/SMV, 2016 U.S. Dist. LEXIS 63588 (D.N.M. May 13, 2016).   The court stated that “the critical question in determining if a person falls within the class of persons protected by the journalist’s privilege is whether the person, at the inception of the investigatory process, had the intent to disseminate to the public the information obtained through the investigation.”  Id. at *23 n.9 (quoting Von Bulow v. Von Bulow, 811 F.2d 136, 143 (2d Cir. 1987)).

No reported First Circuit cases have specifically defined the term “reporter” for purposes of the reporter’s privilege, nor has any First Circuit case distinguished between full-time and part-time “reporters” for purposes of the privilege.

The definition of reporter is not contingent upon the reporter working full-time or working a minimum number of hours. Instead, the core of the test is whether an individual gathers information in the course of newsgathering duties and has the intention to disseminate the information to the public in an independent capacity. Von Bulow v. Von Bulow, 811 F.2d 136, 144 (2d Cir. 1987). The privilege has been extended to cover student reporters. Persky v. Yeshiva Univ., No. 01 Civ. 5278 (LMM), 2002 WL 31769704 (S.D.N.Y. Dec. 10, 2002); Blum v. Schlegel, 150 F.R.D. 42 (W.D.N.Y. 1993), see Supra IV.A..2.

The boundaries of what constitutes an independent news gatherer were examined in Chevron Corp. v. Berlinger, where an attorney solicited the creation of a documentary of the litigation from the perspective of one of his clients. The attorney had a degree of directorial input over the documentary, including advising the director to remove a certain scene. The Second Circuit affirmed the district court’s decision that the documentarian had not acted in an independent fashion. The holding was based on the premise that independent reporters are those whose work is not subject to the agenda or objectives of outside interests. Rather, “those who do not retain independence as to what they will publish but are subservient to the objectives of others who have a stake in what will be published have either a weaker privilege or none at all.” Chevron Corp. v. Berlinger, 629 F.3d 297, 308 (2d Cir. 2011).

The court also advanced a hypothetical to illustrate the difference:

Consider two persons, Smith and Jones, who separately undertake to investigate and write a book or article about a public figure in national politics. Smith undertakes to discover whatever she can through her investigations and to write a book that reflects whatever her investigations may show. Jones has been hired or commissioned by the public figure to write a book extolling his virtues and rebutting his critics. Smith unquestionably presents a stronger claim of entitlement to the press privilege (which is not to say the privilege might not be overcome, depending on the circumstances). Jones, who was commissioned to write a book promoting a particular point of view regardless of what her investigations may reveal, either possesses no privilege at all or, if she possesses the privilege, holds one that is weaker and more easily overcome.

Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir. 2011). Despite this holding, the independently held viewpoint of a reporter, however consistently applied to his work, is not implicated by this decision. Chevron Corp. v. Berlinger, 629 F.3d 297 (2d Cir. 2011) (“Consistency of point of view does not show lack of independence”); In re McCray, Richardson, Santana, Wise, and Salaam Litig., 928 F. Supp. 2d 748 (S.D.N.Y. 2013).

In In re Madden, 151 F.3d at 130, the Third Circuit held that persons or entities seeking to invoke the First Amendment-based journalist's privilege have the burden of demonstrating that they are "engaged in investigative reporting, gathering news, and have the intent at the beginning of the newsgathering process to disseminate this information to the public." As the court explained, "[t]his test does not grant status to any person with a manuscript, a web page or a film, but requires an intent at the inception of the newsgathering process to disseminate investigative news to the public. As we see it, the privilege is available only to those persons whose purposes are those traditionally inherent to the press; persons gathering news for publication." Id. at 129-30. Nevertheless, the Third Circuit also observed, "'it makes no difference whether the intended manner of dissemination was by newspaper, magazine, book, public or private broadcast or handbill because the press, in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.'" Id. at 129 (citations omitted).

The reporter’s privilege case law does not define “reporter” or specify a minimum number of hours per week a “reporter” must work to invoke the privilege.

The Fifth Circuit has not decided the question of who qualifies as a journalist for purposes of asserting the privilege. See In re Grand Jury Subpoenas, 2001 WL 940433, at n.4, 29 Media L. Rep. 2301, 2303 n.4 (5th Cir. Aug. 17, 2001) (noting that the Fifth Circuit has not addressed this issue). In In re Grand Jury Subpoenas, the court indicated that, were the question before it, it would look to the test devised in other circuits, which asks whether the person claiming the privilege (1) is engaged in investigative reporting; (2) is gathering news; and (3) possesses the intent at the inception of the news gathering process to disseminate the news to the public. Id.

The First Amendment reporters' privilege has been applied to a nonprofit organization which published a periodic newsletter alleged to libel the plaintiff. Southwell v. Southern Poverty Law Ctr., 949 F.Supp. 1303 (W.D. Mich. 1996). Although the court declined to decide whether the First Amendment actually afforded a reporter's privilege , the court applied "public policy" in deciding that a magazine and freelance author did not have to reveal the identities of confidential sources to a plaintiff suing them for libel. Schultz v. Reader's Digest Ass'n, 468 F.Supp. 551) E.D. Mich. 1979).

The Sixth Circuit applied the First Amendment to bar enforcement of a civil subpoena directed to a newspaper's advertising dept. in pursuit of the identity of an advertiser who placed a "blind" ad. NLRB v. Midland Daily News, 151 F.3d 472 (6th Cir. 1998).

Even when a First Amendment privilege is not recognized, some courts have nonetheless protected journalists. A Sixth Circuit district court found that the reporters at issue did not have to disclose information from, or names of, confidential sources because the information sought could be obtained from other sources, the request was overly broad and burdensome, and the information may duplicate information gathered from other sources. In re Daimler Chrysler, 216 F.R.D. 395 (E.D. Mich. 2003).

Outside of Illinois's statutory definition, there appears to be no further discussion of what qualifies a person as a reporter for purposes of invoking the reporter's privilege. However, at least one court has declined an invitation to limit the definition of reporter to that of a newspaper reporter. 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). Also instructive is Builders Assoc. of Greater Chicago v. County of Cook, No. 96 C 1121, 1998 WL 111702 (N.D. Ill. Mar. 12, 1998). In Builders, the Chicago Urban League moved to quash a subpoena that sought documents from one of its studies regarding racial and gender discrimination in the construction industry. The subpoenaing party argued that the Urban League was not entitled to the protections of the reporter's privilege since it was an advocacy group that conducts interviews and surveys for governmental entities in order to validate legislation. Thus, it was not a "reporter." The court disagreed and refused to apply the privilege to some groups that disseminate information but not to others. Builders, 1998 WL 111702, at *4-5 (holding "information gathered for political purposes is not outside the protections of the privilege if it was gathered with the intent to disseminate the information to the public").

The Ninth Circuit does not explicitly define the term “reporter” when deciding whether an individual attempting to invoke the reporter’s privilege has standing. The Ninth Circuit usually determines standing based on the activity of the individual claiming the privilege, rather than on the professional affiliation of that person; therefore, there is no need for the court to formulate a definition of such a term. Shoen I, 5 F.3d at 1293 (following the Second Circuit’s reasoning in Von Bulow v. Von Bulow, 811 F.2d 136 (2d Cir. 1987)); see also Ayala v. Ayers, 668 F. Supp. 2d 1248, 1250 (S.D. Cal. 2009) (finding that an investigative reporter’s book manuscript fell within the journalist’s privilege, regardless of whether the author was “employed in the traditional print or broadcast media”); Hamilton v. Hart, No. 10-CV-00272-DAD, 2017 WL 85781, at *2 n.1 (E.D. Cal. Jan. 9, 2017) (noting in dicta that NBC News was protected by a qualified journalist’s privilege for documentary footage about a state prison); Salazar v. City of Phoenix, No. CV-19-01188-PHX-SRB, 2021 WL 5416662, at *1 (recognizing that television station video and audio recordings were subject to the journalist’s privilege). But see Planet Aid, Inc. v. Reveal, Ctr. for Investigative Reporting, No. 17-CV-03695-MMC, 2020 WL 1701960, at *3 (N.D. Cal. Apr. 8, 2020) (rejecting application of reporter’s privilege when a journalist encouraged “the public to stop supporting a subject of [the journalist’s] investigation” because such behavior “goes beyond reporting”).

Alabama's shield statute does not use the term "reporter," but states that the privilege applies to a person "engaged in, connected with or employed on any newspaper, radio broadcasting station or television station, while engaged in a newsgathering capacity." Ala. Code § 12-21-142.

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

The Arizona Shield Law expressly applies to "[a] person engaged in newspaper, radio, television or reportorial work, or connected with or employed by a newspaper, radio or television station," where the person is compelled to testify or disclose "the source of information procured or obtained by him for publication in a newspaper or for broadcasting over a radio or television station with which he was associated or by which he is employed." A.R.S. § 12-2237.

The statute does not define the term "reporter," and there is no statutory or case law regarding whether the statute applies to full-time reporters only, or to part-time reporters as well. A freelance journalist probably would be covered by the statute, so long as the subpoena in question requires disclosure of "the source of information procured or obtained by him for publication in a newspaper or for broadcasting over a radio or television station with which he was associated or by which he is employed." Id.

The Arizona Media Subpoena Law covers "person[s] engaged in gathering, reporting, writing, editing, publishing or broadcasting news to the public . . . ." A.R.S. § 12-2214(A). However, under Matera, there is a significant risk that a freelance journalist not regularly employed by a traditional news organization might not enjoy the protection of the statute. In Matera, the court stated: "[T]he statute's application is limited to persons engaged in the gathering and dissemination of news to the public on a regular basis. . . . The statute balances the needs of media personnel against the needs of litigants, tipping the balance in favor of interference with the process of newsgathering only upon a showing of need, proven by affidavit. . . . [T]he statute was not designed to protect the information collected, but rather was designed to aid a specific class – members of the media – in performing their jobs free from the inconvenience of being used as surrogate investigators for private litigants." Matera, 170 Ariz. at 448, 825 P.2d at 974. The Arizona Supreme Court has not addressed this issue.

The statute does not give a definition of "reporter." No other statute or case offers such a definition.

California’s shield laws explicitly protect reporters, but do not define the term or limit its application. Cal. Const. art. I, § 2(b); Cal. Evid. Code § 1070. However, California cases have held that the reporter’s privilege extends to freelance journalists (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)) and bloggers (O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 1457, 44 Cal. Rptr. 3d 72 (2006)).

The Shield Law includes no specific definition of a reporter; however, based on the broad language of the statute, a reporter is clearly protected by the privilege. See, e.g., Re/Max, 846 F. Supp. 911 (D. Colo. 1994) (Rocky Mountain News reporter may assert common law privilege).

Neither the Shield Law nor the case law define “reporter,” but the privilege expressly applies to employees, agents and contractors of the various news media, either directly “engaged in gathering, preparing or disseminating” information, or merely “assisting” with those activities. No distinctions are made based on full- or part-time status of the reporter or the nature of the reporter's employment. Conn. Gen. Stat. §52-146t(a)(2).

In Liberty Lobby, Inc. v. Rees, 111 F.R.D. 19, 20 (D.D.C. 1986), the court held that the reporter’s privilege “is not limited to the writers of large established newspapers and media enterprises but is equally applicable to the sole publisher of a newsletter or other writing or paper distributed to the public to inform, to comment or to criticize, albeit such a publication may be unpopular in the eyes of many of its potential readers.”  Similarly, in Alexander v. FBI, the court held that “whether a person is a journalist, and thus protected by the privilege, must be determined by the person’s intent at the inception of the information-gathering process.”  186 F.R.D. 21, 50 (D.D.C. 1998) (citing von Bulow v. von Bulow, 811 F.2d 136, 142 (2d. Cir. 1987)).  Thus, “an individual successfully may assert the journalist’s privilege if he is involved in activities associated with gathering and dissemination of news, even though he may not ordinarily be a member of the institutionalized press.”  Id. (internal marks omitted).  The person asserting the privilege should support the claim by “demonstrat[ing] 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.”  Id. (internal marks omitted).

As the court explained, whether someone falls within the scope of the definition of a journalist or reporter is essentially a question of fact.  Id.  The court noted that “prior experience as a professional journalist may be persuasive evidence of present intent to gather for the purpose of dissemination and that the primary relationship between the one seeking to invoke the privilege and his sources must have as its basis the intent to disseminate the information to the public garnered from that relationship.”  Id. (internal marks omitted).  In Alexander, therefore, the court determined that former Clinton White House aide George Stephanopoulos could invoke the privilege when he made an adequate showing that, at the time he acquired information for his book, his intent was to disseminate the information to the public.  Id.  Stephanopoulos offered additional evidence that he made regular appearances as a news commentator and news analyst on a Sunday morning television program.  Id.  Likewise, in Tripp v. Department of Defense, the court applied this same analysis and found that a reporter for military publication Stars and Stripes should receive First Amendment protections.  284 F. Supp. 2d 50, 57-58 (D.D.C. 2003).

Explicitly covered. 10 Del. C. § 4320 (4)(a). To qualify as a reporter, one must earn her principal living by, or for 3 consecutive weeks, or 4 of the past 8 weeks, worked at least 20 hours as a reporter. Id.

The District’s shield law does not include a definition of “reporter.”  However, the statute applies to “any person who is or has been employed by the news media in a news gathering or news disseminating capacity.”  D.C. Code § 16-4702.

Florida’s statutory privilege applies only to “professional journalists.” A professional journalist is “a person regularly engaged in collecting, photographing, recording, writing, editing, reporting, or publishing news, for gain or livelihood, who obtained the information sought while working as a salaried employee of, or independent contractor for, a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine.” § 90.5015(1)(b), Fla. Stat. (2023).

The privilege applies to a full or part time reporter as well as any person "engaged in the gathering or dissemination of news." O.C.G.A. § 24-5-508.

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

The Idaho cases do not attempt to define “reporter.”

The Statute defines “reporter” as “any person regularly engaged in the business of collecting, writing or editing news for publication through a news medium on a full-time or part-time basis; and includes a person who was a reporter at the time the information sought was procured or obtained.” 735 ILCS 5/8-902(a). The Statute covers all “reporters” regardless of whether they work full-time or part-time, as the statutory definition is not contingent upon a minimum number of working hours.  See Simon v. Northwestern Univ., 321 F.R.D. 328, 331, 45 Media L. Rep. 1961 (N.D. Ill. 2017) (documentary filmmaker “fit comfortably within the definition” of reporter even though “he was also a practicing attorney during this same time period,” since “[t]he Act does not forbid dual-employment”); Desai v. Hersh, 954 F.2d 1408, 1412 n. 3 (7th Cir. 1992) (“reporters who author books” are protected by the Statute).

Indiana’s shield law applies to:

(1) any person connected with, or any person who has been connected with or employed by:

(A) a newspaper or other periodical issued at regular intervals and having a general circulation; or

(B) a recognized press association or wire service;

as a bona fide owner, editorial or reportorial employee, who receives or has received income from legitimate gathering, writing, editing and interpretation of news; and

(2) any person connected with a licensed radio or television station as owner, official, or as an editorial or reportorial employee who receives or has received income from legitimate gathering, writing, editing, interpreting, announcing or broadcasting of news.

Ind. Code § 34-46-4-1. The statute does not further define the terms in this section.

The privilege can only be invoked if the person subpoenaed was acting in her capacity as a newsgatherer when she obtained the information sought. See Northside Sanitary Landfill, Inc. v. Bradley, 462 N.E.2d 1321, 1325 (Ind. Ct. App. 1984) (freelancer who gave document to television station with whom she had no employment arrangement was precluded from using the shield law); Shindler v. State, 335 N.E.2d 638, 645 (Ind. Ct. App. 1975) (reporter would have lost protection of the privilege if she had been acting as an agent for the state in investigating a crime).

No definition of "reporter" is provided by case law and no appellate cases addresses the issue. In Stanfield v. Polk County, No. CE 34-20125, 18 Med. L. Rptr. 1262, 1265–66 (Iowa Dist. Ct. 1990), the trial court relied on the Von Bulow v. Von Bulow, 811 F.2d 136, 13 Med. L. Rptr. 2041 (2d Cir. 1987), decision to determine that a freelance writer qualified for the privilege.

See K.S.A. 60-480(a), quoted above.

Neither the shield statute nor Kentucky case law defines "reporter." The statute, KRS 421.100, applies to any persons engaged or employed by or connected with a newspaper, television or radio broadcasting station.

Louisiana's shield law defines reporter broadly: "Any person regularly engaged in the business of collecting, writing or editing news for publication through a news media," including all "persons who were previously connected with any news media including any newspaper or other periodical issued at regular intervals and having a paid general circulation; press associations; wire service; radio; television; and persons or corporations engaged in the making of news reels or other motion picture news for public showing." La. R.S. 45:1451.

Maine’s courts have not addressed this issue.

Md. Cts. & Jud. Proc. Code Ann. § 9-112(b) – Persons affected are described as those employed by the news media in a news gathering or news disseminating capacity; independent contractors of the news media acting within the scope of a contract in any news gathering or news disseminating capacity; and enrolled post-secondary students engaged in any news gathering or news disseminating capacity recognized by the institution as a scholastic activity or in connection with a school-related activity.

There is no statutory or case law definition of "reporter."

Courts have not laid out a definition of who is a "reporter" for purposes of the privilege.

In Summit Technology, Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381 (D. Mass. 1992), the court held that an investment analyst who had written a report on a company could invoke the reporter's privilege. The court said:

"Whether or not Roberts [the analyst] is a member of the "organized press" per se, it appears that he is engaged in the dissemination of investigative information to the investing business community. It further appears that the "speech" at issue (the Roberts' article) relates to "matters of public concern" as opposed to "matters of private concern" and, therefore, is accorded higher First Amendment protection ... In short, in this instance, Roberts is entitled to raise the claim of privilege with respect to his confidential source as would any other media reporter."

Summit, 141 F.R.D. at 384.

The statutes granting a privilege do not contain any definitions of reporter, editor, news, photojournalist, or media. Nor do cases draw any distinctions among news gatherers. However, In re Photo Marketing held that Michigan law protects “reporters of general news” as well as “writers of technical news.” 120 Mich. App. at 530–31 (citing Branzburg, 408 U.S. at 665). Reporters of general news are said to compile information for the purpose of “creating a news story of interest to the ‘general public,’” while those who report technical news compile information intended for a “narrower audience,” such as those who are members of a trade community. Id. at 531. In order to obtain confidential information and infringe upon the qualified news writer’s privilege, which both classes of reporters ordinarily enjoy, one must satisfy the requirements adopted from Riley: (1) the information sought must “[go] to the heart of the litigant’s case,” id. at 532 (citing Riley, 612 F.2d at 716); (2) the party seeking the information must have sought the information from all other possible outlets, id.; and (3) the court must conduct an analysis of the potential harm that may be caused by ordering disclosure of a confidential source’s identity.” Southwell, 949 F. Supp. at 1312.

Courts have applied the privilege to protect reporters in Grunseth v. Marriott Corp., 868 F. Supp. 333 (D.D.C. 1994) (applying Minnesota statute as well as other bases for privilege) and Bauer v. Gannett Co., Inc. (KARE 11), 557 N.W.2d 608 (Minn. Ct. App. 1997); overruled to the extent inconsistent with Weinberger v. Maplewood Review, 668 N.W.2d 667 (Minn. 2003).

Cases involving reporters, but denying protection for other reasons, include Johnson v. CBS, Inc., No. CIV-3-95-624, 1996 WL 907735 (D. Minn. Sept. 14, 1996) (unpublished); Weinberger, 668 N.W.2d 667; and State v. Knutson, 523 N.W.2d 909, 912ñ13 (Minn. App. 1994).

Both decisions from the federal district courts of Mississippi and the majority of the selected trial court orders apply the qualified privilege to reporters. Lousteau v. City of Canton, Mississippi. No. 3:11CV676-DPJ-FKB, 2013 WL 1827738, at *2 (S.D. Miss. Apr. 30, 2013), Brinston v. Dunn, 919 F. Supp. 240 (S.D. Miss. 1996); McKee v. Starkville, 11 Med. L. Rptr. 2312, No. EC-82-36-NB-D, (N.D. Miss. Jan. 27, 1985); Charles R. Pope v. Village Apartments, Hinds County Circuit Court, No.92-72-436CV (Jan. 23, 1995); Mary Doe v. Maurin-Ogden Mgmt. Corp., Hinds County Circuit Court, No. 90-64-502 (Feb. 8, 1991); State v. Young, Hinds County Circuit Court Crim. No. 825 (Mar. 16, 1988). These cases do not discuss who meets the definition of a "reporter."

There is no statutory or case law addressing this issue.

Montana does not give the privilege to "reporters" as such, but to "any person connected with or employed by (certain named organizations) for the purpose of gathering, writing, editing or disseminating news." There is no requirement that such a person work a minimum number of hours.

The statute does not define reporter. It protects any person “engaged in procuring, gathering, writing, editing or disseminating news or other information to the public.” Neb. Rev. Stat. § 20-146.

NRS 49.275 does not define "reporter" and there appears to be no other statute defining this term. In Toll v. Wilson, 135 Nev. 430, 433, 453 P.3d 1215, 1218 (2019), the Nevada Supreme Court agreed with a district court’s reliance on Webster’s Third New International Dictionary (2002) that defined a reporter as “one that reports; one who reports news events; a commentator.”

It should be noted that, in connection with the Nevada Supreme Court Rules on Electronic Coverage of Court Proceedings, which are applicable to all civil and criminal trials in Nevada, the term “news reporter” is defined as “any person who gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.”  SCR 229(1)(c); Solid v. Eighth Judicial Dist. Court, 393 P.3d 666, 671 (Nev. 2017).  While there has been no authority comparing SCR 229(1)(c) to NRS 49.275, the existence of the rule should be noted.

Yes. See Opinion of the Justices, 117 N.H. 386 (1977), and State v. Siel, 122 N.H. 254 (1982).

The privilege is afforded to any "person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated." The privilege is limited to information the reporter obtains "in the course of pursuing his professional activities," but that definition itself is broad. "In the course of pursuing his professional activities" means "any situation, including a social gathering, in which a reporter obtains information for the purpose of disseminating it to the public but does not include any situation in which a reporter intentionally conceals from the source the fact that he is a reporter, and does not include any situation in which a reporter is an eyewitness to, or participant in, any act involving physical violence or property damage."

Rule 11-514 confers the privilege on any “person engaged or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing, or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited, or disseminated.” Rule 11-514(B) NMRA. The privilege survives termination of the journalist’s employment. See Rule 11-514(A)(4) NMRA. The statutory privilege applicable to nonjudicial proceedings protects any “journalist or newscaster, or working associates of a journalist or newscaster,” NMSA 1978, § 38-6-7(A) (1973); it defines “journalists” and “newscasters” as “person[s] who, for gain [are, or at the relevant time were,] engaged in gathering, preparing, editing, analyzing, commenting on or broadcasting news,” and it defines “working associates” as persons who are (and at the relevant time were) employees or co-workers of such journalists and newscasters, id. § 38-6-7(B)(7) to (9).

The Shield Law explicitly protects not only full-time reporters, but also freelance reporters who perform newsgathering "as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication." Civ. Rights § 79-h(a)(6).

The North Carolina shield law uses the term "journalist" rather than "reporter," but it offers a broad definition, calling any person who is engaged in the business of gathering, compiling, writing, editing, photographing, recording, or processing information for dissemination via any news medium a "journalist." N.C. Gen. Stat. § 8-53.11(a)(1). Any company that is engaged in the business of news gathering, as well as the employees, independent contractors, and agents of that company, is also a "journalist" under the shield law. Id.; see also State v. Fitzgerald, 39 Media L. Rep. 2251 (N.C. Superior Ct. 2011) (holding that a documentary series that was broadcast on A&E was a “journalist” under the statute because its field producers were “engaged in the business of gathering, compiling, writing, editing, photographing, recording or processing information for dissemination via a news medium”).

North Dakota law does not define the term “reporter.” The statute protects persons engaged in news gathering, while acting on behalf of a publishing or broadcast news agency. There are no conditions placed on the reporter's employment status with the agency. In Moore v. State, 2006 ND 8, a reporter for a local television station that attended a criminal defendant’s sentencing hearing was found to be acting on behalf of and employed by an organization engaged in broadcasting news.

Ohio Revised Code § 2739.04 (broadcasters)

No person engaged in the work of, or connected with, or employed by any noncommercial educational or commercial radio broadcasting station, or any noncommercial educational or commercial television broadcasting station, or network of such stations, for the purpose of gathering, procuring, compiling, editing, disseminating, publishing, or broadcasting news shall be required to disclose the source of any information procured or obtained by such person in the course of his employment, in any legal proceeding, trial, or investigation before any court, grand jury, petit jury, or any officer thereof, before the presiding officer of any tribunal, or his agent, or before any commission, department, division, or bureau of this state, or before any county or municipal body, officer, or committee thereof. . . .

Ohio Revised Code § 2739.12 (newspapers)

No person engaged in the work of, or connected with, or employed by any newspaper or any press association for the purpose of gathering, procuring, compiling, editing, disseminating, or publishing news shall be required to disclose the source of any information procured or obtained by such person in the course of his employment, in any legal proceeding, trial, or investigation before any court, grand jury, petit jury, or any officer thereof, before the presiding officer of any tribunal, or his agent, or before any commission, department, division, or bureau of this state, or before any county or municipal body, officer or committee thereof.

The statute does not define “reporter” but includes reporters among those protected by the privilege if the reporter is “regularly engaged” in newsgathering.  Other persons mentioned in the statute are photographers, editors, commentators, journalists, correspondents, announcers, “or any other individual regularly engaged in obtaining, writing, reviewing, editing, or otherwise preparing news.” The term “regularly engaged” is not defined but presumably covers part–time as well as full–time news gatherers.

ORS 44.520 protects any person "connected with, employed by or engaged in any medium of communication to the public."

The Pennsylvania Shield Law and First Amendment reporter’s privilege apply to reporters. See, e.g., Davis v. Glanton, 705 A.2d 879 (Pa. Super. 1997). The Shield Law protects anyone “engaged on, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news.” 42 Pa. Cons. Stat. § 5942(a).

There are no Pennsylvania cases that define who is covered by the First Amendment privilege. 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.

The Rhode Island Shield Law applies to "reporters" in that "no person shall be required by any court, grand jury, agency, department or commission of the state to reveal confidential association, or to disclose the source of any confidential information received or obtained by him or her in his or her capacity as a reporter." R.I. Gen. Laws § 9-19.1-2.

There is no definition of reporter. The privilege has application to persons engaged in the gathering and dissemination of news for the public.

Not defined.

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). The statute does not mention the term "reporter," but the statute is clearly meant to cover a broad range of people working in journalism.

“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 a “journalist” as “a person, including a parent, subsidiary, division or affiliate of a person, who for a substantial portion of the person’s livelihood or for substantial financial gain, gathers, compiles, prepares, collects, photographs, records, writes, edits, reports, investigates, processes, or publishes news or information that is disseminated by a news medium or communication service provider and includes: (A) a person who supervises or assists in gathering, preparing, and disseminating the news or information; or (B) notwithstanding the foregoing, a person who is or was a journalist, scholar, or researcher employed by an institution of higher education at the time the person obtained or prepared the requested information, or a person who at the time the person obtained or prepared the information: (i) is earning a significant portion of the person’s livelihood by obtaining or preparing information for dissemination by a news medium or communication service provider; or (ii) was serving as an agent, assistant, employee, or supervisor of a news medium or communication service provider.” See Tex. Civ. Prac. & Rem. Code §22.021(2) and Tex. Code Crim. Proc. art. 38.11, §1(2).

Rule 509 defines a “news reporter” as “a publisher, editor, reporter or other similar person gathering information for the primary purpose of disseminating news to the public and any newspaper, magazine, or other periodical publication, press association or wire service, radio station, television station, satellite broadcast, cable system or other organization with whom that person is connected.” Id. 509(a)(1). The 2008 Advisory Committee Note to this rule indicates 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.” Utah R. Evid. 509 advisory committee note (2008).

Reporters are included in Vermont’s reporter’s privilege. See 12 V.S.A. § 1615(a).  Even prior to enactment of the Vermont Shield Law, “a television news reporter” was deemed a “newsgatherer” who could assert a reporter’s privilege. State v. St. Peter, 132 Vt. 266, 268, 315 A.2d 254, 255 (Vt. 1974); see also In re Inquest Subpoena (WCAX), 2005 VT 103, ¶ 1, 179 Vt. 12, 13, 890 A.2d 1240, 1241 (Vt. 2005).

The case law does not define a “reporter.”

In adopting a confidential source privilege, the Washington Supreme Court held that the privilege "applies to both working reporters and the organizations by whom they are employed." Senear, 97 Wn.2d at 157. Cases recognizing a First Amendment privilege to resist civil discovery, such as Snedigar v. Hoddersen, 114 Wn.2d 153, 786 P.2d 781 (1990), would suggest that recognition of any First Amendment privilege would turn on the interests involved rather than the particular definitions of reporter, editor, or photographer.

Also see Section 5 of the shield statute, which defines the covered "news media." See RCW 5.68.010(5).

The Reporters’ Privilege statute, W.Va. Code § 57-3-10, defines who is a “reporter” entitled to the statutory privilege to be protected from compelled disclosure of confidential sources or information that may be used to identify a confidential source.  In the statute, a "Reporter" means “a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns matters of public interest for dissemination to the public for a substantial portion of the person's livelihood, or a supervisor, or employer of that person in that capacity: Provided, That a student reporter at an accredited educational institution who meets all of the requirements of this definition, except that his or her reporting may not provide a portion of his or her livelihood, meets the definition of reporter for purposes of this section.”  See generally Ramezan v. Hough, 2015 WL 5331810, at *1 (W. Va. 2015) (“[T]he circuit court first determined that petitioner’s tax records were irrelevant to the determination of whether petitioner could exercise the statutory privilege West Virginia Code § 57–3–10 affords to news reporters and, therefore, petitioner did not have to produce those records.  Second, the circuit court found that petitioner was a “reporter” within the meaning of West Virginia Code § 57–3–10 and was able to exercise the privilege and protect the identity of his source.”).

As for the definition of a “reporter” outside the confidential source context, the Hudok court's citation to the Von Bulow case, and the Von Bulow court's elaboration on the criteria used to determine whether one is a member of the class entitled to claim the reporter's privilege is the only guidance in West Virginia in this area.  See “Who is covered” above.

Reporters are covered by the shield law, but only if they engage in newsgathering for a business or organization that regularly disseminates news to the public.  Wis. Stat. § 885.14(1).

Not applicable.