B. Whose privilege is it?

There is no case law addressing this issue.

Under Florida’s Reporter’s Privilege, § 90.5015, Fla. Stat., Florida’s Fourth District Court of Appeal held that a source, who was also a co-defendant to a defamation suit, would not be protected by the journalist privilege.  Cable News Network, Inc. v. Black, 308 So. 3d 997 (Fla. 4th DCA 2020).

No reported First Circuit decision has specifically addressed the issue of whether the reporter or the source is the holder of the reporter’s privilege, and who must assert the privilege. Most of the First Circuit cases involve a reporter asserting the privilege, where the reporter has assured the source of confidentiality. Usually, the reporter is subpoenaed to present the information in a deposition, at trial, or in a grand jury hearing, and the reporter is the party asserting the privilege.

In defamation actions where the publisher is a defendant, the publisher has asserted the privilege. See, e.g., Bruno & Stillman v. Globe Newspaper Co., 633 F.2d 583, 593-94 (1st Cir. 1980) (allowing The Boston Globe to assert the reporter’s privilege).  Alharbi v. TheBlaze, Inc., 199 F.3d 334, 340 (D. Mass. 2016) (radio and television commentator and owner and distributer of broadcast asserted the privilege.)  In cases where a party seeks disclosure of non-confidential, unpublished “outtakes,” the media defendant is also likely to be the party asserting the privilege. See, e.g., United States v. Shay (“Shay I”), No. 92-10369, 1993 U.S. Dist. LEXIS 4438, 21 Med. L. Rep. 1415 (D. Mass. 1993) and United States v. Shay (“Shay II”), 1993 WL 263493 (D. Mass. June 30, 1993) (allowing WLVI-TV, Channel 56, to assert the reporter’s privilege); see also Holton v. Rothschild, 108 F.R.D. 720, 722 (D. Mass. 1985) (finding that the authors, publishers, and the writings themselves are all protected under the reporter’s privilege).

The privilege belongs to the reporter, and not to the source. In Small v. UPI, 84 Civ. 7320 (VLB), 1989 U.S. Dist. LEXIS 12459 (S.D.N.Y. Oct. 20, 1989) (Roberts, Mag.), the court held that the privilege belongs to the reporter and the source may neither waive the privilege nor invoke the privilege to protect information that the reporter may choose to reveal. In Small, plaintiff sued UPI and some of its executives for breach of contract and defamation. UPI sought to withhold discovery of the transcript of an interview with two named defendants, conducted by reporters who had no affiliation with UPI but were writing a book on UPI. The court rejected defendant's privilege claim because the privilege belongs to the reporter, not to the source. Id. at *3.

In United States v. Winans, the court held that publishers or broadcasters may assert the privilege concurrently with or in lieu of an individual reporter. United States v. Winans, 612 F. Supp. 827 (S.D.N.Y. 1985). In this case, a former reporter for the Wall Street Journal, who was being prosecuted for securities violations, sought to have his former publisher disclose the names of confidential sources in the reporter's notes and diaries that remained with the Journal. The court held that the Journal could assert the privilege in lieu of the reporter and held that the reporter did not meet the three-prong test to overcome the privilege. Id. at 1280.

In the Third Circuit, the First Amendment-based privilege traditionally has been found to belong to the reporter or news organization and not to the source. See, e.g., Cuthbertson I, 630 F.2d at 147 ("The privilege belongs to CBS, not the potential witnesses, and it may be waived only by its holder."); Damiano, 168 F.R.D. at 500-01 (privilege belongs to reporter and/or reporter’s employer, not source). However, in In re: Molycorp, No. 15-11357 (CSS) (Bankr. D. Del.), a district bankruptcy judge appeared to extend the right to claim privilege even to instances where no disclosure was sought from the newsgatherer.  There, the court recognized Bloomberg L.P.’s interest in an order requiring sources to self-identify disclosures to the media via sworn declarations and ultimately narrowed its order to accommodate that interest. Transcript of January 22, 2016 Hearing at 38:15-39:8, ECF No. 1172. So far as reported opinions reveal, courts in the Third Circuit do not appear to have resolved directly the question of whether the privilege belongs to the reporter individually and/or to his or her employer.

Though there have been no cases in the Fourth Circuit in which a source has attempted to invoke or waive the privilege, the privilege is characterized as belonging to the reporter and not the source. See, e.g., Ashcraft, 218 F.3d at 287 (“If reporters were routinely required to divulge the identities of their sources, the free flow of newsworthy information would be restrained.”); Gilbert v. Allied Chem. Corp., 411 F. Supp. 505, 508 (E.D. Va. 1976) (“[T]he First Amendment, protecting as it does the free flow of information, provides newsmen a privilege.”).

The news organization may assert the constitutional reporter’s privilege in conjunction with the individual reporter, e.g., United States v. King, 194 F.R.D. 569, 571 (E.D. Va. 2000); Penland, 922 F. Supp. at 1082, or on behalf of the individual reporter, e.g. LaRouche, 780 F.2d at 1139; Stickels, 750 F. Supp. at 730-31; Gilbert, 411 F. Supp. at 507. However, one district court has questioned whether a publisher has standing to assert the privilege where the reporter is willing to waive it. In Bauer v. Brown, a former teacher brought a Section 1983 claim against several former colleagues and other parties arising out of an earlier investigation of the teacher. 11 Media L. Rep. 2168 (W.D. Va. 1985). During that investigation, the defendants had contacts with a newspaper reporter and television reporter that resulted in published stories. The plaintiff subpoenaed the reporters to testify and produce all documents related to the interviews or news reports. The television reporter, who by the time of the subpoena was no longer a journalist, agreed to testify, but his notes and other documents were in the possession of the newspaper, which asserted the privilege. Id. at 2168-69. The district court granted the motions to quash on other grounds and left open the question of the publisher’s standing.

No reported decision of the Fifth Circuit addresses whether the reporter or the reporter's employer owns the privilege. Similarly, no reported decision of the Fifth Circuit explicitly resolves whether the privilege belongs to the source, the reporter, or both. The court has stated, however, that "a reporter has a First Amendment privilege" against revealing confidential sources in civil cases, Miller, 621 F.2d at 724 (emphasis added), and that "the first amendment shields a reporter from being required to disclose the identity of persons who have imparted information to him in confidence," Selcraig, 705 F.2d at 792 (emphasis added); see also Lousteau v. City of Canton, No. 3:11-cv-676, 2013 WL 1827738, at *2 (S.D. Miss. Apr. 30, 2013) (noting that a news reporter waives his privilege by filing a lawsuit “about which his sources may have information that goes to the heart of a claim or defense”).

On the other hand, at least one Fifth Circuit case implies that in some circumstances the privilege may be waived by the source. In a civil action against a police officer, the district court had upheld a reporter's invocation of the privilege against disclosing tapes of a conversation with the officer; in dicta, the Fifth Circuit criticized the lower court's enforcement of the privilege, because the officer was evidently not a confidential source and because he had expressly waived the privilege. See Pressey v. Patterson, 898 F.2d 1018, 1022 n.4 (5th Cir. 1990). Thus, Pressey may indicate that, at least where the material in question relates directly to the source and is not merely the reporter's work product, the source may be empowered to waive the privilege. But see Holland v. Centennial Homes, Inc., 1993 WL 755590, at *6 n.4, 22 Media L. Rep. 2270 (N.D. Tex. 1993) (noting that, although the Pressey footnote acknowledged that the police officer may have waived the privilege, it did not address whether the reporter had done so).

The Sixth Circuit has found that Ohio shield law protection does not belong to the source of the information. Ventura v. Cincinnati Enquirer, 396 F.3d 784 (6th Cir. 2005).

There is no statutory or case law addressing this issue.

No Eighth circuit case law addresses this issue.

The reporter’s privilege “belongs to the journalist alone and cannot be waived by persons other than the journalist.”  L.A. Mem’l Coliseum Comm’n v. Nat’l Football League, 89 F.R.D. 489, 494 (C.D. Cal. 1981).

Alabama's shield statute, Ala. Code § 12-21-142, suggests that the privilege belongs to the reporter. With respect to the First Amendment privilege, there is no Alabama statutory or reported case law addressing whether the reporter, the reporter's employer, or the source may assert the privilege.

Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege. Trial courts that have dealt with these issues have not expressed addressed whether the privilege belongs to the source or reporter, or both, or to the reporter or employer, or both. However, trial court rulings have implicitly recognized that both could assert the privilege. Cases have involved assertions of the privilege by a press organization on behalf of a reporter or former reporter, and by a reporter and news organization represented by separate counsel, and by a reporter claiming a privilege when the source of the information is known and a party to the litigation, but none of the cases have hinged on these distinctions. In dicta in a case focused on a different privilege, a dissenting judge noted that the reporter’s privilege statute’s provisions “do not prohibit a reporter from revealing the source of information.” Allred v. State, 554 P.2d 411, 423-24 (Alaska 1976) The shield law provides that when a reporter claims the privilege conferred by AS 09.25.300 - 09.25.390 and the reporter has not been divested of the privilege by order of the supreme or superior court, neither the reporter nor the news organization with which the reporter was associated may thereafter be permitted to plead or prove the sources of information withheld, unless the informant consents in writing or in open court.

The plain language of A.R.S. § 12-2237 suggests that the privilege belongs the reporter, not the source.  In Cooper Tire, the Arizona Court of Appeals confirmed  that “[t]he statutory privilege belongs to the reporter.”  218 Ariz. at 58, 178 P.3d at 1182.

The statute states that the privilege applies to "any editor, reporter, or other writer for any newspaper, periodical or radio station, or publisher of any newspaper or periodical, or manager or owner of any radio station." In Saxton v. Arkansas Gazette Co., 264 Ark. 133, 569 S.W.2d 115 (1978), the Arkansas Supreme Court noted in dicta that "a number of states, including Arkansas, have provided editors and news reporters with a statutory privilege." Id. at 135, 569 S.W.2d at 116. When interpreting a statute, the court will construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Collins v. Excel Specialty Products, 347 Ark. 811, 69 S.W.3d 14 (2002).

Because the reporter’s privilege protects against a finding of contempt, its language suggests that it is personal to the reporter. Cal. Const. art. I, § 2(b); Cal. Evid. Code § 1070. However, California courts routinely allow organizations to claim the privilege. See, e.g., New York Times Co. v. Superior Court, 51 Cal. 3d 453, 461, 796 P.2d 811, 273 Cal. Rptr. 98 (1990); Playboy Enters., Inc. v. Superior Court, 154 Cal. App. 3d 14, 23, 201 Cal. Rptr. 207 (1984); CBS, Inc. v. Superior Court, 85 Cal. App. 3d 241, 249, 149 Cal. Rptr. 421 (1978), disapproved on other grounds, Delaney v. Superior Court, 50 Cal. 3d 785, 797 n. 6, 789 P.2d 934, 268 Cal. Rptr. 753 (1990).

The courts are divided regarding whether the Shield Law is intended to protect the reporter or the source. In CBS, the court held the privilege was waived when the reporter’s previously confidential sources testified in open court. 85 Cal. App. 3d at 250. The court reasoned that “[s]ince this information is now a matter of public record, it is difficult to see how the production of tapes which will merely confirm – or at worst very slightly amplify – what has already been revealed, will materially erode the vicarious interest in confidentiality asserted by CBS.” Id.

In Playboy Enterprises, the court rejected this reasoning, asserting that arguments based on the CBS decision “are manifestly in direct conflict with the statutory construction adopted herein. We find no support of these positions in the language of the statute.” 154 Cal. App. 3d at 23. The court pointed out that the express language of the statute “does not allow the conclusion that protection of unpublished materials or information is dependent upon the continued confidentiality of the source.” Id.

Although this issue has not specifically been addressed by any Colorado court, the plain language of the statute indicates that the privilege belongs to the reporter, as opposed to the source. The statute states that "no newsperson shall" be compelled to disclose news information obtained while gathering the news. C.R.S. § 13-90-119(2).

It also appears as though the privilege is the newsperson's, not the owner of the news organization. In Gordon, the Colorado Supreme Court stated that the privilege cannot be relied upon by the corporate owner of a radio station. Gordon v. Boyles, 9 P.3d at 1122. However, in Quigley v. Rosenthal, 43 F. Supp. 2d 1163 (D. Colo. 1999), a federal district court held that the Anti-Defamation League may assert the privilege.

Neither the Shield Law nor the case law address whether the privilege belongs to the source, the reporter, the reporter's employer, or any combination thereof.

The journalist’s privilege belongs to the journalist—i.e., the person who is involved in a newsgathering or news-disseminating activity.  Anderson v. Nixon, 444 F. Supp. 1195, 1198 (D.D.C. 1978) (“Although the public interest in a fully informed press provides its basis, the privilege is that of the reporter not the informant or the public.”) (internal marks omitted); accord In re Miller, 438 F.3d 1141, 1177 (D.C. Cir. 2006) (Tatel, J., concurring in the judgment) (reporter’s privilege belongs to the journalist because it “safeguards public dissemination of information—the reporter’s enterprise, not the source’s”).

The privilege belongs to a person or entity who is designated a "reporter." See 10 Del. C. §§ 4320-22, 4325.

The privilege set forth in the District’s shield law belongs to a person who is or has been employed by the news media in a newsgathering or news disseminating capacity.  D.C. Code § 16-4702.

The privilege in Florida belongs to the reporter by the terms of the shield law; however, as a practical matter, it is advisable to file any motions to quash subpoenas to reporters on behalf of both the reporter and the media entity by which the reporter is employed.

The reporter's privilege belongs to the person engaged in the gathering and dissemination of the news, not the source. 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.

The Idaho cases do not attempt to identify “ownership” of the privilege; however, the cases consider instances in which it has been invoked by the reporter and/or the reporter's employer. Thus, the cases indicate that the privilege can properly be invoked by reporters and their employers and imply that the privilege “belongs” to them. In the instance of other testimonial privileges, to which the reporter's privilege has sometimes been compared, the privilege sometimes belongs to the ostensible “source,” such as with the attorney-client privilege.

The privilege belongs to the reporter. In most Illinois cases, it is the reporter or publisher who seeks protection under the Statute. See, e.g., People v. Slover, 323 Ill. App. 3d 620, 753 N.E.2d 554 (2001); People v. Pawlaczyk, 189 Ill. 2d 177, 724 N.E.2d 901 (2000); Cukier v. American Medical Ass’n, 259 Ill. App. 3d 159, 630 N.E.2d 1198 (1994) (holding that the editor and authors of a medical journal were “reporters” able to assert the privilege). In addition, Illinois case law states that the “privilege [is] granted to reporters.” Pawlaczyk, 189 Ill. 2d at 181, 724 N.E.2d at 905 (emphasis added); Simon v. Northwestern Univ., 321 F.R.D. 328, 330, 45 Media L. Rep. 1961 (N.D. Ill. 2017). Although the statute itself remains ambiguous as to whether the reporter is the only one allowed to assert the statutory privilege, Section 8-901 provides that “no court may compel any person to disclose the source of any information obtained by a reporter . . . .” (emphasis added).

Although the privilege belongs to the reporter, it is the source itself that is the subject of the Statute’s protection. Simon, 321 F.R.D. at 330-31.  Furthermore, Illinois courts have recognized that the legislature intended to protect more than simply the name and identities of sources. See Slover, 323 Ill. App. at 624; 753 N.E.2d at 558 (holding that “[t]he legislature did not limit the scope of section 8-901 of the Statute by inserting either ‘the name of’ or ‘the identity of’ before ‘the source of any information’“).

The privilege belongs to the reporter and cannot be claimed by the source. Hestand v. State, 273 N.E.2d 282, 283 (Ind. 1971); Lipps v. State, 258 N.E.2d 622, 626 (Ind. 1970).

The Indiana Court of Appeals recently applied this rule in Matter of Indiana Newspapers. 963 N.E.2d 534, 546 (Ind. Ct. App. 2012).  There, a plaintiff suing for defamation argued that the Indianapolis Star waived its shield law privilege regarding an anonymous commenter’s identity via its Privacy Notice and Terms of Service. Id. at 544.  The Court addressed two arguments regarding the shield law.  First, the plaintiff argued that because the Star’s Privacy Notice warned users that their information could be released, the Star had waived its privilege. Id. The court rejected this argument because the privilege belonged to the Star, and the Star chose to keep the commenter’s identity secret. Id. However, the plaintiff prevailed on his second argument, that a commenter who posts after a news report is published is not a source for the purpose of the shield law because that commenter did not contribute to the reporter’s investigation.

The privilege belongs to the reporter. See Waterloo/ Cedar Falls Courier, 646 N.W.2d at 102 (“[O]nly the holder of the privilege may waive it.”). In Waterloo/Cedar Falls Courier, the Court stated that "the Courier is not the holder of the reporters’ privilege, but the privilege is strictly held by the editors and is subject to waiver only by their actions." 646 N.W.2d at 102 (citing United States v. Cuthbertson, 630 F.2d 139, 147 (3d Cir. 1980) (stating that the privilege belonged to the news organization (CBS) and the privilege can only be waived by its holder)); Los Angeles Mem'l Coliseum Comm’n v. Nat’l Football League, 89 F.R.D. 489, 494 (D.C. Cal. 1981) (stating that the privilege belongs to the journalist alone and the journalist is the only person capable of waiving it); Diaz v. Eighth Judicial Dist. Ct. ex rel . Cty. of Clark, 993 P.2d 50, 57 (Nev. 2000) (holding that the privilege belongs to the journalist). In Nelle, however, the U.S. District Court for the Southern District of Iowa held the news station was the holder of the reporter’s privilege. Nelle, 2017 WL 7049237, at * 2 (“There is no question [the television station] is a protected class member and privilege holder.”). News organizations have successfully asserted the privilege at the district court, but all appellate cases involve a named reporter, editor, or news director.

There is no statutory or case law addressing this issue in the reporter’s privilege context.  The author believes it reasonably likely that a Kansas court would hold that the statutory protection afforded by the Kansas shield law and the common law qualified privilege “belongs” to the journalist asserting it.

Although there have been no reported decisions on this issue, Kentucky’s cases have all dealt with members of the news media asserting the privilege. Lexington Herald-Leader v. Beard, 690 S.W. 2d 374, 11 Media L. Rep. 1376 (Ky. 1984); Branzburg v. Pound, 461 S.W.2d 345, 347 (Ky. 1971), aff'd sub nom. 408 U.S. 665 (1972); Branzburg v. Meigs, 503 S.W.2d 748 (Ky. 1971).

According to Louisiana law, the reporter's privilege belongs to the reporter, news organization, photographer, custodian of records, or any other media representative upon whom the subpoena seeking disclosure is served and may be asserted by that person. La. R.S. 45:1459(B). In every reported Louisiana state case, the subpoena was served on the reporter directly. See Ridenhour, 520 So.2d at 373; Burns 484 So.2d at 658; Dumez 341 So.2d at 1207; see also Becnel 420 So.2d at 1175 (owner-publisher). In Smith, because subpoenas were issued to the reporter and his television station employer, the Fifth Circuit analyzed the reporter's privilege as applied to both collectively. 135 F.2d at 966. There is no case law in Louisiana regarding whether the privilege also may be asserted by the source.

The shield law, 16 M.R.S.A. § 61, requires that the journalist be given notice and an opportunity to be heard, but the same is not true for the source.

The Maine Supreme Court has not addressed whether the privilege may be asserted by a source, but a footnote in In re Letellier, 578 A.2d 722, 724 n.2 17 Media L. Rep. 2169 (Me. 1990) notes that the trial court had determined that the source was without standing to oppose the subpoena on the reporter. That portion of the trial judge's order was not challenged on appeal.

The privilege belongs to the news media member, not the informant. Lightman v. State, 294 A.2d 149, 156 (Md. Ct. Spec. App. 1972), aff'd, 295 A.2d 212 (Md. 1972), cert. denied, 411 U.S. 951 (1973) ("The Maryland statute, however, does not protect against the disclosure of communications; it privileges only the source of the information and the privilege is not that of the informant but of the newsman.")

There is no case law on this issue.

As stated in MCL 767A.6(6), the qualified news reporter’s privilege belongs to “[a] reporter or other person who is involved in the gathering or preparation of news for broadcast or publication.” This group is said to include reporters of general and technical news. In re Photo Mktg. Ass’n Int’l, 120 Mich. App. at 531. Those who report general news compile information for the “purpose of creating a news story of interest to the ‘general public.’” Id. Conversely, technical reporters summarize “confidential data” for a narrower audience, usually those who are a part of the same trade or industry. Id.

The privilege belongs to the "person who is or has been directly engaged in the gathering, procuring, compiling, editing, or publishing of information for the purpose of transmission, dissemination or publication to the public," in the words of the statute. One district court has held that the "statutory privilege is that of the media, not of the sources." Order and Memorandum at 9, Jamieson v. Doe, No. MC 88-18860, Hennepin Cty., Minn., Dist. Ct., dated February 1, 1989.

Both opinions from the federal district courts of Mississippi and the selected trial court orders discuss the qualified privilege in terms of it being asserted by and in favor of the reporter. No reported case from the appellate courts of Mississippi or the federal district courts of Mississippi have considered whether the privilege may be asserted by the source of the information.

There is no statutory or case law addressing this issue.

The privilege belongs to the reporter and the news media that the reporter is employed by or connected with. The privilege does not belong to the source.

The privilege belongs to the media and its constituent parts, not the source.

“The privilege from compelled disclosure belongs to the journalist, not the source, who may be unidentified.” Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 99, 993 P.2d 50, 57 (2000).

There is no statute on point. New Hampshire cases include reporters and publishers asserting the privilege. See, e.g., Downing v. Monitor Publishing Co., Inc., 120 N.H. 383 (1980); State v. Siel, 122 N.H. 254 (1982). In Gray v. St. Martin's Press, the First Circuit Court of Appeals assumed that the privilege could be asserted by the author of a book, as well as by the publisher. Gray v. St. Martin's Press, 221 F.3d 243 (2000).

The privilege belongs to the news person and is his or hers to invoke.  Too Much Media, LLC v. Hale, 206 N.J. at 239.

Under both the rule of evidence and the statutory privilege applicable to nonjudicial proceedings, the privilege belongs to the reporter and her employer, but not to the source. See Rule 11-514(B) NMRA; NMSA 1978, § 38-6-7(A), (B)(7) to (9) (1973); compare id. § 38-6-7(B)(7) to (8) (“journalists” and “newscasters” mean “persons”) with id. § 12-2A-3(E) (1997) (“person” includes “any legal or commercial entity”).

The privilege belongs to the reporter and not to the source. Accordingly, if a confidential source later waives the privilege, the material becomes nonconfidential and thus subject to the reporter's qualified privilege for nonconfidential material. Prior to the statute's 1990 amendment granting a qualified privilege for nonconfidential news, the privilege was deemed waived if the source later identified him/herself or testified at trial and thus disclosed his/her identity. See Andrews v. Andreoli, 92 Misc.2d 410, 400 N.Y.S.2d 442 (N.Y. Sup. Ct. Onondaga Cty. 1977); People v. Zagarino, 97 Misc.2d 181, 411 N.Y.S.2d 494 (N.Y. Sup. Ct. Kings Cty. 1978).

After the 1990 amendment, courts recognized that if a confidential source waived the privilege, this merely made the reporter’s materials nonconfidential subject to the qualified privilege. People v. Lyons, 151 Misc. 2d 718, 722, 574 N.Y.S.2d 126, 129 (City Ct. Buffalo 1991).

The privilege belongs to the reporter and not the source of the information. N.C. Gen. Stat. § 8-53.11(b). See also State v. Demery, 23 Media L. Rep. 1958 (N.C. Superior Ct. 1995) (murder case involving the death of Michael Jordan's father). In Demery, a reporter used an interview with the criminal defendant as the basis for an article. Although the reporter voluntarily provided a tape recording and transcript of the interview to both prosecution and defense, the defendant attempted to subpoena the reporter to appear at a hearing to suppress the tapes. The court quashed the subpoena, citing the reporter's privilege to not disclose information about his sources.

North Dakota has not yet ruled on who can claim the privilege. However, statutory language and case law appears to indicate that the privilege belongs to the reporter and the employer.

The privilege has been held to belong to the reporter. State v. Ventura, 101 Ohio Misc. 2d 15, 720 N.E.2d 1024 (Hamilton C.P. 1999). The privilege belongs to the reporter even if the source seeks the reporter's testimony only to learn information about himself. Ventura v. Cincinnati Enquirer, 396 F.3d 784 (6th Cir. 2005).

The subject of a reporter's news story does not have standing to assert the privilege. City of Akron v. Cripple, 9th Dist. Summit No. 21385, 2003-Ohio-3920, 2003 WL 21697751 (July 23, 2003).

The privilege appears to belong to the “journalist.”  The statute says that “No journalist shall be required to disclose . . .” the source of any published or unpublished information. Okla. Stat. tit. 12, § 2506(B)(1). Our experience is that the “news service” by which the journalist is “regularly engaged” can also assert the privilege, although there is no case law saying so.

The privilege under ORS 44.520 belongs to the reporter. The statute on its face does not provide protection to the source of the reporter's information. There is no statutory or case law addressing this issue.

1. Shield Law

In holding that only a reporter could waive the privilege, the Pennsylvania Supreme Court appears to have assumed that the Shield Law privilege belongs to the reporter, not the source. In re Taylor, 193 A.2d 181, 185 (Pa. 1963).

2. First Amendment privilege

The First Amendment privilege belongs to the reporter, not the source. Davis v. Glanton, 705 A.2d 879, 885 (Pa. Super. 1997) (discussing “rights of reporters” under the First Amendment); McMenamin v. Tartaglione, 590 A.2d 802 (Pa. Commw. 1991), aff’d without op., 590 A.2d 753 (Pa. 1991); see also United States v. Cuthbertson (Cuthbertson I), 630 F.2d 139, 147 (3d. Cir. 1980) (even where source permits disclosure of information, First Amendment privilege protects reporters from being compelled to produce unpublished materials).

According to the express terms of the statute, the privilege belongs to the "person" who obtained the confidential information. R.I. Gen. Laws § 9-19.1-2.

The privilege is for the person or entity engaged in the gathering of news. A source would not have the privilege.

The Hopewell decision implies that the privilege would belong to the source, as well as the reporter, but the case does not reach that point.

In reported cases, the privilege has consistently been asserted by the newsgatherer. It is unclear whether others may assert the privilege.

The privilege belongs to a “journalist, a journalist’s employer or a person with an independent contract with a journalist” in the civil and non-confidential criminal context.  See Tex. Civ. Prac. & Rem. Code §22.024 and Tex. Code Crim. Proc. art. 38.11, §5.  The privilege belongs solely to the journalist when applied to a subpoena seeking information regarding a confidential source.  Tex. Code Crim. Proc. art. 38.11, §4.

The privileges set forth in Rule 509 may “be claimed, as applicable, by the news reporter, the organization or entity on whose behalf the news reporter was acting, the confidential source, the news reporter’s or confidential source’s guardian or conservator or the personal representative of a deceased news reporter or confidential source.” Utah R. Evid. 509(e).

The Vermont courts have not specifically held who is the holder of the privilege. St. Peter, however, suggests that the privilege is to be asserted by the newsgatherer from whom testimony is sought. State v. St. Peter, 132 Vt. 266, 271 315 A.2d 254, 256 (1974); see also Spooner v. Town of Topsham, 2006 Vt. Super. LEXIS 24, *19-21 (reversed and remanded) (recognizing the reporter as the holder of the privilege).  While not specifically addressing the holder of the privilege, the language of the Vermont Shield Law suggests that the reporter is the holder of the privilege.  See 12 V.S.A. § 1615.

The case law in Virginia has not distinguished between reporters and their media organizations.  There is no case law addressing whether the privilege also belongs to the source.

To the extent that Washington has considered this issue at all, it recognizes that a qualified reporter's privilege to refuse to disclose confidential sources extends to both working reporters and the organizations by whom they are employed. Senear, 97 Wn.2d at 157.

No case or statute in West Virginia addresses whether the privilege belongs to the source, the reporter, and/or the employer. On the other hand, both reporters and their employers (i.e., press organizations) have successfully asserted the privilege in West Virginia.  The Reporter’s Privilege statute, W.Va. Code § 57-3-10, requires as a prerequisite to its application that a confidential source has not given consent to disclosure of the source’s identity.

The privilege under the shield law belongs to the “news person,” because the news person is entitled to “notice” and “an opportunity to be heard” before a subpoena can be issued.  Wis. Stat. § 885.14(2)(b).  “News person” is designed to encompass both the person engaged in newsgathering and the entity for which he or she is working.  Wis. Stat. § 885.14(1).

Not applicable.