b. Editor

While there is no case exactly on point, an unpublished decision of the United States District Court for the District of New Mexico held that there is no First Amendment privilege for the editorial process.  Amaya v. Bregman, No. 14-cv-0599 WJ/SMV, 2016 U.S. Dist. LEXIS 63588, *16 (D.N.M. May 13, 2016).  In Amaya, defendant reporters were accused of violating the Federal Wiretap Act after allegedly receiving, using, and further disclosing illegally intercepted emails to and from a governor’s domain.  The defendants argued that their communications with each other and other journalists were privileged as evidence of their editorial process.  The court found no authority to support protection of the editorial process.  Further, because the plaintiffs claimed statutory and punitive damages, which required a showing that the defendants acted knowingly, the court held that the information was relevant and necessary.  The court limited the privilege to the defendant reporters’ confidential sources.

No reported First Circuit cases addressing the reporter’s privilege have specifically defined the term “editor.”

Courts in the Second Circuit have extended the privilege to editors.

In Lipinski v. Skinner, 781 F. Supp. 131 (N.D.N.Y. 1991), plaintiff was arrested and forced to undergo HIV testing. Plaintiff tested positive for HIV. The Binghamton Press published an article stating that the plaintiff was the first inmate in the Broome County jail with AIDS. Plaintiff sued the police and jail officials alleging that they violated the law by forcing him to take an HIV test and failing to protect his confidentiality. The author of the article stated in a deposition that one of her editors at the paper told her to investigate reports of an inmate with AIDS and that the sheriff confirmed that the plaintiff had tested positive. The author had two editors at the paper, and she did not state which editor gave her the information. Plaintiff subpoenaed testimony from both of the author's editors to determine which editor gave the author the lead. The court held that plaintiff satisfied the Burke three-prong test to overcome the privilege and ordered that the newspaper's motion to quash the subpoenas against the editors be denied. Id. at 138-139. Plaintiff's discovery was limited to questions about who initially disclosed the information regarding plaintiffs' HIV test to the newspaper. Id. at 140.

“Editorial decisions and decisions on articles to be published (or not published)” may be subject to the reporter’s privilege. The privilege is designed to prevent the “wholesale production of press files,” and so a district court accordingly denied a motion to compel discovery of records of a magazine’s editorial meetings and those documenting the decision-making process regarding cover stories and subjects of coverage by a plaintiff alleging that she was subjected to a racially discriminatory work environment.  Robertson v. People Mag., 14 CIV. 6759 (PAC), 2015 WL 9077111 (S.D.N.Y. Dec. 16, 2015) (applying New York Shield Law).

Additionally, in In re Welling, 40 F. Supp. 2d 491 (S.D.N.Y. 1999), a Barron's associate editor wrote an article that led attorneys in a securities fraud cases to believe she had relevant evidence. Her motion to quash the subpoena was denied. After the trial court decision, the associate editor tried to have herself held in contempt so she could appeal the decision to not quash the subpoena. The district court did not reach the merits of the decision, finding she could not be held in contempt because the deadline for complying with the subpoena had not yet been fixed, so she had not yet disobeyed a court order. Id. at 493-94.

Courts in the Third Circuit do not appear expressly to have addressed this question, but under the three-part test it employs, there appears little doubt that traditional editors would qualify for the First Amendment-based privilege. See In re Madden, 151 F.3d at 130.

The case law does not define an “editor,” though a newspaper editor has been permitted to invoke the privilege. See Maurice v. Nat’l Labor Relations Bd., 691 F.2d 182 (4th Cir. 1982) (holding that business editor of Charleston (W.Va.) Daily Mail must exhaust administrative remedies before seeking judicial relief from subpoena).

No reported decision of the Fifth Circuit addresses who constitutes an "editor" for purposes of asserting the qualified privilege.

Although no case decided by federal courts in the Sixth Circuit addressed the issue, where the First Amendment applies, it would likely apply to an editor.

There is no statutory or case law addressing this issue.

The Ninth Circuit does not explicitly define the term “editor” when deciding whether an individual attempting to invoke the reporter’s privilege has standing. The Ninth Circuit 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, 811 F.2d at 136).

There is no Alabama statutory or reported case law defining "editor."

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 an "editor" for purposes of applying the privilege. The shield law does not define "editor."

Neither the Arizona Shield Law nor the Arizona Media Subpoena Law defines the term "editor."

No statutes or cases define "editor."

California’s shield laws explicitly protect editors, but do not define the term or limit its application. Cal. Const. art. I, § 2(b); Cal. Evid. Code § 1070. There is no case law addressing this issue.

The Shield Law includes no specific definition of an editor; however, based on the broad language of the statute, an editor may assert the privilege. In Gordon, the court vacated a lower court order requiring the host's supervisor to reveal confidential sources. Gordon, 9 P.3d at 1122. The court stated that the supervisor, as a non-party, may rely on the protections of the privilege and that the supervisor can be compelled to testify only after the test in 13-90-119(3) is met. Id. The court held, however, that the corporate owner of the radio station could not avail itself of the privilege.

Neither the Shield Law nor the case law define “editor,” but the privilege expressly applies to “any person supervising or assisting” a person “engaged in gathering, preparing or disseminating” information for the news media. Conn. Gen. Stat. §52-146t(a)(2).

No statutory or case law addressing this issue exists.

Explicitly covered. 10 Del. C. § 4320 (4)(b). The statute explicitly covers an "agent, assistant, employee, or supervisor of an individual who qualifies as a reporter." Id.

The District’s shield law does not define an “editor.”  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.

An editor is protected by Florida’s statutory privilege if he or she is regularly engaged in editing news for gain or livelihood and obtained the information at issue while working as an employee of or 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 editor 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 “editor.”

Although the Statute does not explicitly define “editor,” an “editor” appears to be covered in the definition of “reporter” in Section 8-902(a) of the Statute because a reporter is defined as “any person . . . writing or editing news for publication . . .” 735 ILCS 5/8-902(a)(emphasis added).

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 "editor" is provided by case law and no case addresses the issue. It is clear after Waterloo/Cedar Falls Courier that both an editor and managing editor qualified for the privilege because they engaged in the news gathering process. 646 N.W.2d at 101.

See K.S.A. 60-480(a), quoted above, which refers specifically to “editors” in defining “journalist.”

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

Louisiana courts have broadly interpreted those who are included under the rubric of the state's statutory reporter's privilege. Since a newspaper is "engaged in the business of collecting, writing and editing news for public dissemination" and the owner-publisher is engaged in the same functions, the owner-publisher, or anyone in a similar position, is considered a reporter within the meaning of the statute. Becnel, 420 So.2d at 1175; see also 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 "editor."

Courts have not defined "editor," for purposes of the privilege.

The statutes granting the news reporter’s qualified privilege do not contain any definitions of reporter, editor, news, photojournalist, or media. Additionally, Michigan case law does not draw any distinctions among news gatherers.

No specific Minnesota cases dealing with editors.

Neither the opinions from the federal district courts of Mississippi nor the selected trial court orders discuss the application of the qualified privilege to editors or the definition of an "editor."

There is no statutory or case law addressing this issue.

The definition that covers reporters is the same one that covers editors.

The statute does not define editor. 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 "editorial employee" and there appears to be no other statute defining this term.

There is no the case brought by an editor. That said, the Court’s statement in Mortgage Specialists, Inc. set forth in part IV.A above is broad enough to include editors.

Because the statute states that the privilege extends to any "person engaged on, engaged in, or 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," it includes editors.  See Gastman v. North Jersey Newspapers, 254 N.J. Super. 140 (App. Div. 1992).

Persons engaged in editing the news are protected. See supra pt. IV(A)(1)(a).

The statute explicitly protects journalists engaged in "editing," Civ. Rights § 79-h(a)(6), and applies to "supervisory or employer third person or organization having authority over the [professional journalist] described in this [Shield Law]." See Civ. Rights § 79-h(f); In Re Beach v. Shanley, 62 N.Y.2d 241, 476 N.Y.S.2d 765 (1984).

In at least one case, a federal court has found that while the privilege prevented disclosure from reporters at a newspaper, it had been overcome with respect to the editors at the same paper. In Lipinski v. Skinner, 781 F. Supp. 131 (N.D.N.Y. 1991), a criminal arrestee's HIV status was allegedly illegally disclosed by jail authorities to a newspaper editor, who then passed the information to a reporter assigned to write a story concerning the arrestee. The arrestee, who later brought suit against the jail authorities for breach of the state's confidentiality requirements for HIV testing, served a subpoena on the newspaper, seeking to discern the source of the leak. The court, discussing the New York Shield Law but applying federal law, found that while the privilege prevented the arrestee from deposing various reporters who had written follow-up stories concerning him, it had been overcome with respect to the editors who had first received the information. The district court found that the three-part Burke test had been met with respect to the editors, but with respect to the reporters, the information sought was otherwise available, i.e., from the editors. However, the court limited the subpoenas to require only testimony and notes directly relating to the initial disclosure of the arrestee's HIV status. Id. at 139-40.

Editors fall within the definition of "journalist" under the law, and may also claim a "journalist's" privilege. N.C. Gen. Stat. § 8-53.11(a)(1).

The North Dakota statute does not define “editor,” although the language of the statute implicitly includes employers of the newsgatherer.

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.

Editors are covered by the statutory privilege.

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 editors. 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). In In re Taylor, the Pennsylvania Supreme Court held that the Shield Law protected the president and general manager of a newspaper and the editor of another newspaper, all of whom were subpoenaed by an investigating grand jury. See In re Taylor, 193 A.2d 181, 182, 186 (Pa. 1963).

There are no Pennsylvania cases that define the term “editor” for the purposes of 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 "editors" 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 . . . editor." R.I. Gen. Laws § 9-19.1-2.

There is no definition of editor. If the editor is engaged in the gathering and dissemination of news for the public, the qualified privilege is available.

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 "editor," but the statute is clearly meant to cover a broad range of people working in journalism.

The Texas shield law does not have a specific definition for editor, but editor likely falls within the definition for journalist.

An “editor” falls within the definition of a “news reporter” under Rule 509(a)(1). Utah R. Evid. 509(a).

Editors are included under the Vermont’s reporter’s privilege. See 12 V.S.A. § 1615(a).

The case law does not define an “editor.”

Washington's case law has not yet squarely addressed this issue. The state courts would likely apply a First Amendment privilege that is based on broader considerations than newsgathering interests. See Snedigar v. Hoddersen, 114 Wn.2d 153, 786 P.2d 781 (1990).

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

An “editor” is covered by the Reporters’ Privilege statute, W.Va. Code § 57-3-10 and is entitled to the protections of the privilege in the confidential source context.  In regard to news gathering materials unrelated to a confidential source, the Hudok court cited to the Von Bulow case for its elaboration on the criteria used to determine whether one is a member of the class entitled to claim the reporter's privilege. See “Who is covered” above. There is no law or statute that formally defines who qualifies as an "editor," but it would seem logical that a news editor would be covered.

Editors are covered by the shield law as long as they are supervising or assisting in newsgathering performed for a business or organization that regularly disseminates news to the public.  Wis. Stat. § 885.14(1).

Not applicable.