G. Reporter's personal observations

There are no published decisions addressing this issue.  However, in the unpublished decision of Wood v. Farmingham City, the United States District Court for the District of Utah permitted the deposition testimony of a reporter who had witnessed an individual shot and killed by police.  No. 2:10-cv-933-DB-PMW, 2011 U.S. Dist. LEXIS 133940 (D. Utah Nov. 21, 2011).  In Wood, the decedent’s estate brought suit against police alleging violation of decedent’s civil rights after police shot and killed decedent in a standoff.  A reporter, along with three other individuals, witnessed the standoff from a room in a building across the street.  Deposition testimony from the other individuals suggested that the reporter had the best vantage point and benefited from the use of a camera with a zoom lens and spotting scope.  The subpoena did not request any documents or photographs be produced, only that the reporter appear for a deposition.  The court found the privilege was overcome because the reporter was the only objective witness available (the other witnesses were associated with either the police or the decedent) and because the information was highly relevant to the claims and defenses.  These factors, on balance, outweighed the heightened requirement applicable to a civil case and the fact that other sources were available.

In United States v. Fountain View Apartments, Inc., 2009 WL 1905046, *2 (M.D. Fla. July 1, 2009), the court held that the reporter’s notes, drafts of scripts, and what the editor and reporter thought of interviewees’ reactions were not relevant to the case, and therefore were protected.

There is no statutory or case law in the First Circuit specifically addressing this issue.

The privilege in the Second Circuit does not protect reporters who witness criminal activity in circumstances similar to Branzburg. In United States v. Cutler, 6 F.3d 67, 73 (2d Cir. 1993), the Court explained that when reporters are witnesses to a crime, and they are asked to give testimony about the crime, the request for testimony in this situation is parallel to the situation in Branzburg v. Hayes, 408 U.S. 665 (1972), where the Supreme Court held that there is no privilege to refuse "to answer questions that directly relate[ ] to criminal conduct that [a journalist] has observed and written about." The reporter who witnessed the crime in Branzburg was subpoenaed by a grand jury, whereas in Cutler the reporter who witnessed the crime was subpoenaed by the defendant. The Second Circuit felt that the two cases were too similar to allow the reporter in Cutler to receive the privilege. Id. at 73.

In another case involving an eyewitness, In re Ziegler, 550 F. Supp. 530 (W.D.N.Y. 1982), the district court refused to extend the privilege to a reporter who witnessed the assault of an organized crime figure. After Ziegler wrote about the altercation, the government subpoenaed Ziegler to testify about the incident. The court denied Ziegler's motion to quash the subpoena because "the legal principle Branzburg stands for is no less applicable to the instant case, that a reporter, the same as any other citizen, must testify before the Grand Jury as to what he has personally observed." Id. at 532.

Jurisprudence regarding more general first-hand observations is mixed. Some district courts have stated that “[a] reporter’s observations of a public place or event are no different than that to individuals; and as to this, they are not entitled to constitutional protection.” See, e.g., United States v. Markiewicz, 732 F.Supp. 316 (N.D.N.Y. 1990). Yet multiple district courts have held the opposite, on the basis that a distinction protecting recorded, but not remembered observations does not make sense. Lebowitz v. City of New York, 948 F. Supp. 2d 392 (S.D.N.Y. 2013) (noting that the opposite view “would permit any litigant to circumvent the reporter's privilege simply by seeking his or her mental recollections of events, rather than ‘materials’ memorializing those same events”); Carter v. City of New York, No. 02 Civ. 8755 (RJH), 2004 WL 193142 (S.D.N.Y. Feb. 2, 2004). Lebowitz drew its authority for its holding in part from the dicta in Treacy, in which the Second Circuit applied the privilege to direct testimony but found that the privilege was overcome due to other circumstances. United States v. Treacy, 603 F.Supp.2d 670 (S.D.N.Y. 2009); aff'd in relevant part, 639 F.3d 32, 36 (2d Cir. 2011).

The privilege may protect reporters who are eyewitnesses to public events with multiple witnesses. In Carter v. City of New York, 2004 U.S. Dist. LEXIS 1308 (S.D.N.Y. Jan. 30, 2004) the court refused to compel a reporter to testify about his personal observations of a public protest, finding that the defendants had not made a compelling showing of need.

The privilege may also protect journalists who are witnesses to an event at issue in a civil litigation. In SEC v. Seahawk Deep Ocean Tech., Inc., 166 F.R.D. 268 (D. Conn. 1996), the court stated the reporter witnessed one of the alleged acts of misconduct in a civil securities fraud action, yet the court did not rule that the reporter automatically did not receive the privilege as a result of being a witness. Instead, the court applied the three-prong reporter's privilege test and denied the reporter's motion to quash. Id. at 271-72.

Although it does not appear that the Court of Appeals has directly addressed this question in reported opinions, in Riley v. City of Chester, 612 F.2d at 716, the court, in the course of quashing a subpoena, observed that "[t]his is not a case where the reporter witnessed events which are the subject of grand jury investigations into criminal conduct."

One district court, however, relying on case law from other circuits, held that the reporter's privilege "does not apply when a reporter is being questioned about a public incident or event to which he or she was a witness because there is no intrusion into the newsgathering or special functions of the press." Kitzmiller v. Dover Area Sch. Dist., 379 F. Supp. 2d 680, 686-88 (M.D. Pa. 2005). On a motion for reconsideration, the court modified the subpoena to limit questioning solely to what the reporters saw and heard, explaining that the deposition was not to inquire as to the “reporter's motivation(s), bias, mental impressions, or other inquiry which involves matters extrinsic to what the reporters saw and heard.” Kitzmiller v. Dover Area Sch. Dist., No. 04CV2688, 2005 U.S. Dist. LEXIS 33878, at *7 (M.D. Pa. Sept. 12, 2005).

While the Fourth Circuit has not enunciated a blanket exception to the reporter’s privilege for reporters who are subpoenaed as eyewitnesses, the Court strongly favors disclosure in such situations. In Steelhammer, the district court for the Southern District of West Virginia held a civil contempt trial to ascertain whether at a rally two union members had advocated prolonging a strike in contravention of a court-issued temporary restraining order. Two reporters for the Charleston Gazette were summoned by the court to testify about their observances at the rally. They refused and were judged in contempt of court and held for four to six hours before being released on bail. The Fourth Circuit en banc affirmed the contempt convictions and adopted the dissent from the original three-judge panel. Steelhammer, 561 F.2d at 540 (4th Cir. 1977) (adopting Winters, J., dissent,  539 F.2d 373 (4th Cir. 1976)). The Court stated that absent a claim of confidentiality or evidence of vindictiveness on the part of the seeking party, a reporter may not refuse to testify about his or her observances, even if other witnesses to the same events are available. 539 F.2d at 376. Under the LaRouche test, which was formulated nine years after Steelhammer, the presence of other witnesses would likely militate against disclosure because there exist alternative means of obtaining the information. See LaRouche, 780 F.2d at 1139.

The considerations at play in both Steelhammer and LaRouche were present in United States v. Lindh, a case in which a Virginia district court evaluated whether to require a journalist to testify, at a suppression hearing, about his experience interviewing the “American Taliban” at a hospital in Afghanistan. 210 F. Supp. 2d 780 (E.D. Va. 2002). The court denied the journalist’s motion to quash, noting that Lindh’s Sixth Amendment right to prepare and present a full defense may be outweighed by a First Amendment reporter’s privilege only where the journalist’s testimony is cumulative or immaterial, and neither of those circumstances was present on the record. 210 F. Supp. 2d at 783. However, the court added that if, by the time the journalist is called to testify, other witnesses have presented testimony that would render the journalist’s testimony cumulative, the court may “address anew the balancing of the competing constitutional interests.” Id. at 784.

Although the qualified reporter's privilege in some circuits does not protect journalists who are eyewitnesses, the Fifth Circuit has not specifically exempted eyewitnesses from the compass of the privilege. Instead, the court has indicated that the privilege that applies in civil cases might be overcome if the journalist is a "percipient witness to a fact at issue." In re Selcraig, 705 F.2d 789, 798-99 (5th Cir. 1983). Of course, the party seeking the information must first satisfy the Miller test: that is, he must demonstrate with sufficient evidence that the journalist's testimony is relevant, unavailable elsewhere, and necessary to the resolution of the case. Id. If such a showing is made, the journalist's "qualified privilege must succumb to . . . [the] discovery needs" of the party seeking the information. Id. at 799.

Where the reporter personally witnessed the commission of a crime, it is unlikely that the federal courts within the Sixth Circuit would uphold the reporter's assertion of a First Amendment privilege. In In re Grand Jury Proceedings, 810 F.2d 580 (6th Cir. 1987), the Sixth Circuit refused to overturn the contempt conviction of a television reporter who had refused to comply with a grand jury subpoena seeking video outtakes of the reporter's interviews of street gang members. As a condition of taping, the reporter agreed not to broadcast or disclose to anyone the portion of the tape showing the faces of gang members, and promised to do future taping in the silhouette. The gang members threatened his safety if he aired the portion of the tape showing their faces.

The grand jury subpoenaed the outtakes to determine the identity of the killer of a police officer. An informant had identified the killer, but refused to testify. Several gang members told police that the killer was among those who were taped by the reporter. In rejecting the reporter's First Amendment argument, the Sixth Circuit opined that the First Amendment did not apply. However, the Court said that, even if the First Amendment privilege had applied, it would have been overcome given the facts of the case. The court stated that the government made "a clear and convincing showing that [the reporter] has information that is clearly relevant to a specific violation of criminal law, that the information is not available from alternative sources, and that the state has a compelling and overriding interest in obtaining the information."

In Grand Jury proceedings, the video tape for which the Court granted no First Amendment protection did not record the actual commission of a criminal act, but contained only information "clearly relevant to a specific violation of criminal law." Consequently, it is highly improbable that the Sixth Circuit would uphold First Amendment protection where the journalist resisting a subpoena in a criminal context actually witnessed a crime.

In Thayer v. Chiczewski, 257 F.R.D. 466, 471 (N.D. Ill. 2009) the court quashed part of a subpoena for a reporter’s personal obeservations, but ordered him to produce video footage of anti-war demonstrations.  Id. at 470-71.  The court rejected the argument that the reporter "can provide a unique and valuable perspective" on the protest at which the plaintiff was arrested, leading to the civil rights claims at issue. The Court agreed that the reporter’s "perspective" had no bearing on or relevance to substantive issues in this case.  It limited his deposition to authentication of the relevant video evidence and documents produced.  Id.

In United States v. Hale, No. 03 CR 11, 2004 WL 1123796 (N.D. Ind. April 14, 2004), a federal magistrate denied a motion to quash a subpoena to a reporter to appear at the trial of a criminal defendant he had interviewed. Id. at *2 - *3. The court rejected the argument that a videotape of the reporter interviewing the defendant was an adequate substitute for the reporter's trial testimony. The reporter "was in a unique position, as the interviewer, to observe [the defendant's] demeanor during the interview. The government is under no obligation to forego some evidence from a credible source merely because other sources also may testify to the same matters." Id. at *1. The magistrate held the reporter did not show the government was seeking any confidential material. Id. at * 2.

Similarly, a district court, in a pre-McKevitt case, held that the privilege does not apply to journalists' personal observations. Alexander v. Chicago Park District, 548 F. Supp. 277, 278 (N.D. Ill. 1982) (refusing to recognize the privilege and stating "[a] reporter's observations of a public place or event are no different than that of other individuals; and as to this, they are not entitled to constitutional protection").

There is no Eighth Circuit law specifically addressing this issue.

A district court within the Ninth Circuit held that the personal observations of a journalist who was “an eyewitness to the alleged beating of a citizen by two police officers” were not protected under the First Amendment by the reporter’s privilege. Dillon v. City & Cty. of S.F., 748 F. Supp. 722, 726 (N.D. Cal. 1990). Subsequently, in an unpublished decision, another court within the Ninth Circuit cited Dillon to explain that “[i]t is clear that the privilege does not extend to personal observations made by the reporter when those observations are made in public places,” with the rationale that “a reporter should not be immunized from testifying about events which any other person might have observed, and about which that person could be compelled to testify.” Kaiyala v. City of Seattle, 1992 WL 396329, at *2 n.3 (W.D. Wash. Sept. 21, 1992). The Kaiyala court granted the motion to quash a subpoena for a newspaper reporter’s personal impressions from interviews, explaining that it was “not convinced that the qualified reporter’s privilege . . . extends to this case” but that the plaintiff had “not yet demonstrated that the burden his discovery would impose on” the reporter, on her newspaper, “and on the news gathering process of which they are a part, is justified by the probative value of the material he seeks.” Id. at *2. Ultimately, Kaiyala left open the question of whether “the ‘personal observation’ exception” from Dillon “also extends to observations made within the context of an interview.” Id. at *2 n.3.

Events that reporters witness as ordinary citizens are not privileged under Alabama law. Brothers v. Brothers, No.: DR-86-200107, 16 Med. L. Rptr. 1031 (Marshall County, Ala. Cir. Ct., Jan. 9, 1989). General observations made by a reporter during the newsgathering process (such as the location of the interview), however, are not observations of an ordinary witness, but are events witnessed in a reporting capacity and are privileged. Id.

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 specifically addressed the question of whether there is any exception to the privilege in the case of reporters who are eyewitnesses to a crime that is the subject of the news article in question.

The Arizona Shield Law does not expressly protect reporters who personally witness criminal activity. While this issue has not been addressed in reported Arizona cases, Bartlett suggests that direct, material evidence of a crime is not protected. In Bartlett, the court ordered production of a television news report that captured images of a car accident scene just moments after the accident had occurred, including footage of the automobile in the middle of the intersection with skid marks, and pictures of the victim being treated by paramedics. The videotape showed measurable skid marks not otherwise recorded or measured at the time of the accident. The trial court found that the videotape "would greatly aid a trier of fact . . . in assessing what the severity of the incident was." 150 Ariz. at 181, 722 P.2d at 349. The Court of Appeals agreed. 150 Ariz. at 184, 722 P.2d at 352.

In an unpublished decision, In re Hibberd, the Arizona Superior Court stated that a reporter's observation of a crime is not protected under the Arizona Shield Law. The court recognized that a reporter "would properly be denied the protection of § 12-2237 had he, for example, accompanied the arsonist to an arson. . . . Under those hypothetical circumstances, Hibberd would be the source of information for his reporting and no privilege would attach." In re Hibberd, 262 GJ 75, Feb. 26, 2001.

The statute does not mention whether a reporter can be compelled to testify or give information about an event to which the reporter was an eyewitness and no Arkansas Supreme Court cases have addressed this specific issue. Although reporters have testified in Arkansas courts, see Bailey v. State, 238 Ark. 210, 381 S.W.2d 467 (1964) (where two reporters testified in a motion hearing as to whether a rape suspect could receive a fair trial), there is no indication that the reporters involved attempted to assert a privilege against being required to offer testimony. A federal judge recently held that a reporter should not be compelled to testify where the information sought is available from another source, the defendant in that particular case.  Singer v. Harris, 2016 WL 10459386, Case No. 4:15CV00408 BSM (E.D. Ark. May 16, 2016).

The California Supreme Court held in Delaney v. Superior Court, 50 Cal. 3d 785, 789 P.2d 934, 268 Cal. Rptr. 753 (1990), that the reporter’s privilege protects a reporter’s personal observations of an event. Interpreting article 1, § 2(b) of the California Constitution, the court stated:

This attempted distinction between observations and information is unpersuasive . . . . “Information” includes “reception of knowledge” and “knowledge obtained from reading, observation, or instruction.” . . . When a reporter or other person is called on to testify as to his observations of an event, he is being asked to disclose information. Moreover if the distinction between observations and information were logical, the result would be that even a newsperson’s confidential observations would not be protected. That result would be contrary to the manifest purpose and language of article I, section 2(b).

Id. at 799-800.

The statute does not permit a newsperson to assert the privilege regarding certain personal observations. "[T]he privilege of nondisclosure shall not apply to … (c) News information based on a newsperson's personal observation of the commission of a crime if substantially similar news information cannot reasonably be obtained by any other means; (d) News information based on a newsperson's personal observation of the commission of a class 1, 2 or 3 felony." C.R.S. § 13-90-119(2)(c)-(d).

In a pre-statute decision, the Colorado Supreme Court found that a reporter had to testify because he was the only witness to a criminal act. Pankratz v. District Court, 609 P.2d at 1103. In Pankratz, a reporter interviewed the Director of the Medicaid Fraud Unit of the State of Colorado. During the interview and after the reporter agreed to keep his identity confidential, the director gave the reporter a list of indictments and the names of the persons to be indicted by the 1978 Statutory Grand Jury. The director's actions were in violation of C.R.C.P. 62 and Rule 41(e) of the Local Rules of Practice. Since the reporter was a witness to the crime, the court "found no case to support the proposition that a news reporter who actually witnesses the criminal act" can assert a privilege. Id.

In Henderson v. People, the television station's employee, who was flying a helicopter with passengers that included a police officer, did not have to testify about his observations of an alleged crime scene because the information was reasonably available from another source -- the police officer. Henderson v. People, 879 P.2d at 393.

Neither the Shield Law nor the case law discusses reporter’s personal observations.

Case law suggests that, at least in the grand jury context, whether a subpoena concerns the reporter’s direct observations is of no legal significance.  In re Grand Jury 95-1, 59 F. Supp. 2d 1, 8 (D.D.C. 1996) (rejecting distinction between subpoenas seeking testimony from journalists about criminal conduct they observe and write about and those seeking testimony about general newsgathering and editorial functions).  However, in United States v. Libby, the court held that no First Amendment privilege from a Rule 17(c) subpoena could apply where the reporter was personally involved in the activities that are the predicate for the criminal offense.  432 F. Supp. 2d 26, 44 (D.D.C. 2006).

The statute explicitly excepts reporters who have personally observed or participated in an act involving physical violence or property damage. 10 Del. C. § 4320 (7). However, even this exception has been narrowly construed, and is subject to Riley's tripartite test. See State v. Hall, 16 Med. L. Rptr. 1414 (Mar. 8, 1989) (quashing subpoena ad testificandum when reporters attended a rally in their official capacities and personally witnessed the disorderly conduct in question); State v. Cordrey, Del. Super., C.A. No. 88-07-00 00A, Barbiarz, J. (September 28, 1988) (Transcript) (quashing subpoena for reporter who witnessed courtroom events).

The District’s shield law, and the cases decided under it, do not distinguish between situations where the reporter has personally observed the matter on which he reported and situations where the reporter has gathered the information second-hand.

Florida’s journalist privilege does not protect physical evidence, eyewitness observations, or visual or audio recordings of crimes. § 90.5015(2), Fla. Stat. (2023). The words “of crimes” in the statute modify “physical evidence,” “eyewitness observations,” and “visual or audio recordings.” See News-Journal Corp. v. Carson, 741 So. 2d 572, 574 (Fla. 5th DCA 1999). Thus, the statutory privilege does not apply to physical evidence of crimes, eyewitness observations of crimes, or visual or audio recordings of crimes. Eyewitness observations of non-criminal activity are covered by the privilege. Id.; see also Wilensky v. Gooding, 31 Media L. Rep. 1641 (Fla. 7th Cir. Ct. Apr. 7, 2003).

Documents are not “physical evidence” within the meaning of the exception to the statute. News-Journal, 741 So. 2d at 575. The privilege protects against compelling disclosure of “information,” and that term is not limited to the reporter’s recollection. Rather, the term encompasses broad categories of things, such as notes, letters, papers, and microfiche. Such things are information concerning crimes, not physical evidence of crimes, and this information is subject to the balancing test. See id. Likewise, when a journalist witnesses an arrest, he or she is not making an eyewitness observation of a crime, unless a crime is committed at the time of arrest. See Florida v. Abreu, 16 Media L. Rep. 2493, 2494 (Fla. Cir. Ct. 1989) (applying common law privilege).

A reporter's personal observations are protected by the privilege so long as they occurred as part of the gathering or dissemination of the news. See O.C.G.A. § 24-5-508 (affording protection to “any information, document, or item obtained or prepared in the gathering or dissemination of news”). See also Vance v. Krause, Civil Action No. 90-1687-5 (DeKalb County Superior Court, Nov. 21, 1990) (where subpoena sought to compel testimony from non-party television station photographer who was also a long-time friend of defendant, trial court held that shield law protected from disclosure only information obtained by photographer as a news gatherer for purposes of dissemination to the public.).

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

The Salsbury case involved a videotape made at a post-accident scene at which a newspaper reporter was arrested for resisting and obstructing a police officer, after he refused to leave the scene of an automobile accident. The trial court, and the Idaho Supreme Court, were obviously hostile to the suggestion in that case that a reporter should have any rights greater than any other citizen in trying to resist providing testimony in a judicial proceeding.

The Northern District of Illinois has refused to apply the Statute when a reporter personally witnessed an occurrence. Alexander v. Chicago Park District, 548 F. Supp. 277 (N.D. Ill. 1982). In Alexander, plaintiffs served the Chicago Sun Times and five of its reporters with subpoenas. Ultimately, plaintiffs sought only the reporters’ testimony as to their personal observations of the parks during their investigation for a series on the parks. The court denied the reporter’s motion to quash, holding that the testimony as to the reporters’ observations was not “source material” protected by the First Amendment. Id. at 278. “A reporter’s observations of a public place or event are no different in kind than that of other individuals; and as to this, they are not entitled to constitutional protection.” Id.

There is no statutory or case law addressing this issue.

No Iowa case law specifically addresses a reporter's obligation to testify as to events personally witnessed. In Bell, the court stated, in dicta, that information obtained in a news gathering process by a reporter is presumptively privileged but this "does not mean that a reporter may raise the privilege to avoid testifying, as any other citizen, to observations made as an eyewitness." 412 N.W.2d at 588 (citing Branzburg, 408 U.S. at 685–86, 92).

The Kansas shield law protects “information” procured by journalists.  “Information” is defined as:

 

[A]ny information gathered, received or processed by a journalist . . . in the process of gathering, receiving or processing information for communication to the public.

 

K.S.A. 60-480(b) (emphasis supplied).

 

This definition can be read as extending to “information gathered” by a journalist by means of personal observation, so long as the observing took place at a time when the journalist was acting as a journalist.

Although there are no cases on point, the author is confident that neither the state nor federal courts of Kansas would interpret the common law, First Amendment-based privilege as providing protection to personal observations made at a time when the journalist was not acting as a journalist.  In other words, a journalist who happens to observe a motor vehicle accident or a robbery will be expected to testify the same as any other citizen.

Reporters who are eyewitnesses to the matter on which they reported cannot invoke the privilege in order to shield them from disclosing their personal observations. See Branzburg v. Pound, 461 S.W.2d 345, 347 (Ky. 1971), aff'd sub nom. 408 U.S. 665 (1972). Branzburg, a newspaper reporter for the Louisville Courier Journal, was permitted to witness two men making hashish because of his agreement not to disclose their identities. He was summoned to appear before a grand jury and was ordered to disclose the identity of the two men. The court held that Kentucky’s shield law, KRS 421.100, did not confer a privilege from disclosing the identity of the perpetrators, reasoning that the source of the information was Branzburg's personal observation.

The Louisiana Supreme Court carved out an exception to the reporter's privilege when the reporter has witnessed any criminal activity or has physical evidence of a crime. Ridenhour, 520 So.2d at 376. If a reporter is a witness to a crime, he is unable to move to quash the subpoena seeking disclosure and may not refuse to answer questions. Id.

The shield law applies to "[a]ny information obtained or received in confidence by the journalist acting in the journalistic capacity of gathering, receiving, transcribing or processing news or information for potential dissemination to the public." 16 M.R.S.A. § 61(1)(C). The statute distinguishes between information obtained or received in a journalistic capacity and information obtained or received in a personal capacity.

No Maine Supreme Judicial Court case concerning non-confidential information has explicitly recognized this distinction.

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) ("Where a newsman, by dint of his own investigative efforts, personally observes conduct constituting the commission of criminal activities by persons at a particular location, the newsman, and not the persons observed, is the 'source' of the news or information in the sense contemplated by the statute. . . [and the newsman] can lawfully be directed to disclose [the information he observed because] these questions do not go to the 'source' of the [newsman's] publication and they must be answered."). See also, Prince George's County v. Hartley, 822 A.2d 537, 31 Med. L. Rep. 1679 (Md. App. 2003), stating that neither constitutional nor statutory privilege applies to reporter's eyewitness observations of a transitory event.

In In re Pappas, 266 N.E.2d 297 (Mass. 1971), the court rejected a claim that the First Amendment entitled a reporter to refuse to appear before a grand jury investigating criminal activity of which the reporter had personal knowledge. See also In re Roche, 411 N.E.2d 466 (Mass. 1980). "Requiring a newsman to testify about facts of his knowledge does not prevent their publication or circulation of information. Any effect on the free dissemination of news is indirect, theoretical, and uncertain, and relates at most to the future gathering of news." In re Pappas, 266 N.E.2d at 302.

There are no Michigan cases distinguishing this situation from a reporter's stories based on third-party observations. However, caution should be exercised. If, for example, the reporter saw a fire while acting as a reporter, there may be a basis for asserting the privilege. See Marketos, 185 Mich. App. at 194–95 (citing Alexander v. Chicago Park Dist., 548 F. Supp. 277, 278 (N.D. Ill. 1982)). However, if the reporter lived next door to the fire and saw because he could not help but see it, assertion of the privilege would be difficult. See id.

No federal court decision in Minnesota addresses this aspect of a constitutional privilege.

The statutory privilege does not explicitly distinguish on this basis. Pre-1998 decisions interpreting the earlier version of the statute contain language declining to protect personal observations, or finding that the necessary conditions for disclosure were met in situations involving a reporter's personal observations. See, e.g., State v. Knutson, 523 N.W.2d 909, 912ñ13 (Minn. Ct. App. 1994) ("[T]he Reporters Shield Law does not apply where, as here, no source is at risk and the reporter would testify regarding events personally witnessed. . . . Rosen [the reporter] has no constitutional privilege not to testify regarding his personal observation of an assault. . . . Neither the Minnesota Reporters Shield Law nor the Constitution provide Rosen a privilege not to testify regarding events he personally witnessed while covering a story.").

In McKee v. Starkville, a terminated city employee sought information from a newspaper journalist who reported on the board of aldermen's executive session in which the employee was fired. The employee wanted to know what occurred during the executive session and who gave the reporter information from the executive session. 11 Med. L. Rptr. 2312, 2313, No. EC-82-36-NB-D, (N.D. Miss. Jan. 27, 1985). The federal district court found that information sought was relevant and that a compelling interest existed as the reporter was "the percipient witness to a fact in issue, i.e., the identity of the confidential source(s)." Id. The court upheld the qualified privilege as to this information, however, finding that the seeking party had not exhausted all avenues for obtaining the information. Id.

A trial court quashed a subpoena issued to a news photographer who witnessed an incident in her capacity as a photojournalist. Hawkins v. Williams, Hinds County Circuit Court, No. 29,054 (Mar. 16, 1983). The court found that the party had other sources for the information sought, the proffer of the photographer's testimony was purely cumulative of other testimony, and there was no compelling necessity for her testimony. Id.

There is no statutory or case law addressing this issue.

There is no Montana case law discussing whether there should be a distinction when the reporter has personally observed the matter on which he reported and was then subpoenaed. The statute however, protects "any information obtained or prepared . . . if the information was gathered, received, or processed in the course of his employment or its business." That language does not appear to treat eyewitness testimony any differently.

So long as the observation has not been published or broadcast, it is protected. An unreported county court decision has so held.

receiving or processing information for communication to the public, or the source of any information procured or obtained by [the reporter].” Aspen Fin. Servs., Inc. v. Eighth Judicial Dist. Court of State ex rel. Cty. of Clark, 129 Nev. 878, 313 P.3d 875, 879 (2013) (quoting NRS 49.275).  The statute does not provide protection for information gathered in other capacities." Diaz v. Eighth Judicial Dist. Court, 116 Nev. 88, 993 P.2d 50, 59 (2000).

There is no statutory or case law addressing this issue.

“A reporter acts ‘in the course of pursuing his professional activities’ whenever he ‘obtains information for the purpose of disseminating it to the public.’”  In re Venezia, 191 N.J. at 271 (citing N.J.S.A. 2A:84A‑21a(h)).  The only exceptions to this are if a reporter intentionally conceals his or her professional identity from a source or if a reporter is a witness to, or a participant in, any act of physical violence or property damage.  Id. However, the New Jersey Supreme Court has held that a reporter who arrives at the scene of a fire while the fire is ongoing is not an eyewitness to property damage. Matter of Woodhaven Lumber and Millwork, 123 N.J. 481 (1991). Even where a reporter was present at the scene of physical violence the reporter's testimony will not be compelled if other witnesses are available. State v. Santiago, 250 N.J. Super. 30 (1991).

The 1973 statute – today applicable only to nonjudicial proceedings – protects all “data of whatever sort not disseminated to the public through a medium of communication.” NMSA 1978, § 38-6-7(A)(2), (B)(5) (1973). This category of information would appear to include anything that the reporter observes but does not report. The point is less clear under the rule of evidence. That rule protects “confidential information,” but its definitions speak only of confidential “communication[s],” which are communications “not intended for further disclosure except to other persons in furtherance of the purpose of the communication.” Rule 11-514(A)(2), (B)(2) NMRA. The language was evidently borrowed from the rule on attorney-client privilege, see Rule 11-503(A)(4) NMRA, which courts outside New Mexico have sometimes refused to apply to a lawyer’s observations about her client’s physical characteristics. Indeed, by limiting the privilege’s protections to communications “not intended for further disclosure,” the rule raises potentially vexing questions about whose intent is determinative and how such intent can be proved.

The Shield Law may protect journalists who are themselves witnesses to criminal acts. In Beach, 62 N.Y.2d 241, the Court of Appeals held that the Shield Law affords journalists protection against compulsory disclosure of sources even where the disclosure of information to the journalist might itself be a criminal act. The court analyzed the legislative history of the act and found that the law "provides a broad protection to journalists without any qualifying language." Id. at 251. In Application of CBS, Inc., 232 A.D.2d 291, the Appellate Division held that the Shield Law is not inapplicable where the journalist actually observes criminal activity. See also Holmes v. Winter, 22 N.Y.3d 300, 316, 3 N.E.3d 694, 704 (2013) (“The District Court is understandably troubled by the violation of the restrictions it imposed on pretrial disclosure, but the New York Shield Law ‘permits a reporter to retain his or her information, even when the act of divulging the information was itself criminal conduct’”) (quoting Beach, 62 N.Y.2d at 252, 476 N.Y.S.2d 765, 465 N.E.2d 304).

Earlier precedent offered less protection to reporter-witnesses. See, e.g., People v. Dan, 41 A.D.2d 687, 342 N.Y.S.2d 731 (4th Dep't 1973) (holding that although newscaster and cameraman had privilege of refusing to divulge identity of source, they could not refuse to testify before a grand jury about events they had personally observed, including the identity of persons observed, even if they were sources); People v. Dupree, 88 Misc.2d 791, 388 N.Y.S.2d 1000 (N.Y. Sup. Ct. N.Y. Cty. 1976) (privilege does not exempt reporters from being compelled to testify in a criminal trial as to what reporter personally observed).

Journalists should be wary of partnering with law enforcement officials investigating criminal activity. As the New York Court of Appeals suggested in People v. Combest, 4 N.Y.3d 341, 795 N.Y.S.2d 481 (N.Y. 2005), journalists who go beyond mere observation of law enforcement activity may be unable to avail themselves of the protections of the shield law. See Section on “Criminal” cases above.

Pursuant to the shield law, the qualified testimonial privilege does not apply to a reporter's eyewitness observation of criminal or tortious conduct. N.C. Gen. Stat. § 8-53.11(d).

If a reporter is on location and records a crime as it happens, there is no privilege against disclosure of any information, including audio or visual recordings resulting from the reporter's eyewitness observation of the crime. See United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) (following Branzburg and holding that “[t]here is no First Amendment testimonial privilege, absolute or qualified, that protects a reporter from being compelled to testify . . . in criminal proceedings about criminal conduct that the reporter personally witnessed or participated in, absent a showing of bad faith, harassment, or other such non-legitimate motive, even though the reporter promised confidentiality to his [or her] source”). However, if the reporter arrives late and merely photographs, for example, the crime scene or accident site, the privilege should apply, because the reporter observed and recorded the result of the crime or accident and not the event itself.

The plain language of the statute does not address whether the privilege would protect an eyewitness. The statute does not specifically account for situations where the reporter has personally observed the matter on which he/she reported and then was subpoenaed. This issue was not addressed by the North Dakota Supreme Court when it summarily affirmed a trial court's order quashing a criminal defendant's subpoena of a television reporter in Moore v. State, 2006 ND 8, despite the fact that the television reporter was present during the defendant’s sentencing hearing.

In a wrongful death action, a newspaper and photographer moved to quash subpoenas to produce unpublished photographs taken of an accident scene. The court granted the motion stating that the qualified privilege applies to unpublished news photographs and offers more protection in civil cases. Slagle v. Coca Cola, 30 Ohio Misc.2d 34, 507 N.E.2d 794 (Montgomery County C.P. 1986).

A journalist’s personal observations are not specifically mentioned in the statute, but the definition of unpublished information would seem to cover any observations not disseminated to the public.  Our experience has been that courts will quash a subpoena for the eyewitness testimony of a reporter unless the party issuing the subpoena overcomes the privilege.

"Information obtained" in the course of news gathering does not include a cameraman's personal observations to the extent that the observations were of events taking place in public, were made with the naked eye, and did not relate to work product, informants or confidential sources. State v. Pelham, 136 Or. App. 336, 344, 901 P.2d 972 (1995).

There are no Pennsylvania appellate court decisions addressing whether the Shield Law or the First Amendment privilege applies to a reporter’s personal observations of an event at issue in the case. Several trial court decisions have touched on this issue. In Commonwealth v. Linderman, 1992 WL 563407 (Chester Cty. C.C.P. Sept. 4, 1992), the trial court found that the Shield Law does not protect unpublished photographs taken by a media photographer where the photographs were taken in public, of a scene in plain view, and thus served only as a factual record of an event. Id. at *2. Another trial court, however, found that the First Amendment privilege applies to such photographs and suggested that both the Shield Law and the First Amendment privilege could protect against disclosure if the photographs are sources of information rather than records of a public event. Shetler v. Zeger, 1989 WL 234087, at *5-6 (Franklin Cty. C.C.P. June 1, 1989). Similarly, in McMenamin v. Tartaglione, 590 A.2d 802 (Pa. Commw. 1991), aff’d without op., 590 A.2d 753 (Pa. 1991), the Pennsylvania Commonwealth Court held that a reporter would not be compelled to testify at a civil trial regarding his or her observations during a press conference. The plaintiff in that case sought a declaration prohibiting the former Philadelphia District Attorney, Ronald Castille, from running for Mayor of Philadelphia. The plaintiff sought to compel a newspaper reporter to testify about the accuracy of certain statements allegedly made by Mr. Castille, during a press conference. The court determined that the testimony was not protected under the Pennsylvania Shield Law because the plaintiff was not seeking disclosure of the identity of a confidential source. Nevertheless, the court applied the three-part test for the reporter’s privilege and concluded that the plaintiff failed to show that the information was unobtainable from a source other than the journalist. Id. at 811-12.

The statute is silent and there are no cases on point that directly address a reporter's personal observations.

The language of the statute provides a privilege against compelled disclosure of "any information" "obtained" "in the gathering or dissemination of news," so it would seem that a reporter's personal observations would have the same qualified privilege as other information. This provision has not been the subject of litigation at the time of the preparation of this outline.

The privilege articulated in Hopewell specifically protects the identity of a confidential informant under certain circumstances. The South Dakota Supreme Court has not specifically addressed this issue.

There is no Tennessee statutory or case law on this issue, but the broad sweep of the statute to cover all information gathered for publication or broadcast, suggests that reporter’s personal observations would be within the protection of the statute.

An exception to the absolute privilege in the criminal context concerning confidential sources exists when the journalist observes the commission of a felony or a person has admitted the commission of a felony to the journalist. In those circumstances, the journalist may be compelled to testify if the person seeking the testimony makes a clear and specific showing that the subpoenaing party has exhausted reasonable efforts to obtain the confidential source of the information, document, or item. Tex. Code Crim. Proc. art. 38.11, §4(a)(2).

Rule 509 does not exempt a reporter’s personal observations from the protection of the rule. In cases where a reporter is a witness to a crime, a court must consider the Silkwood factors to determine whether the interest of a continued free flow of information to news reporters outweighs the need for disclosure. See e.g., Wood v. Farmington City, No. 2:10-CV-933-DB-PMW, 2011 WL 5834430, at *2 (D. Utah Nov. 21, 2011) (recognizing qualified privilege for reporters and court’s obligation to consider Silkwood factors but not specifically applying Rule 509). In Wood, a magistrate judge considered whether to quash the subpoena of a Salt Lake City newspaper reporter who witnessed and photographed a police standoff that ended in the death of the plaintiff. See id. In weighing the Silkwood factors, the Court determined the qualified First Amendment privilege for information acquired in the course of gathering news did not justify quashing the subpoena where the reporter was the only witness who was not affiliated with the police involved or the plaintiff that was shot and killed because “[t]he information sought by the Subpoena [went] directly to the heart of [the] case and [was] highly relevant to the claims and defenses.” Id. The Court “determined that [the first] two factors outweigh[ed] the remaining two factors.” Id. at *3.

In cases where the leak of information to the reporter is alleged to be a crime, and thus the reporter a witness to the crime, a court must again balance the need for disclosure of confidential and nonconfidential unpublished information against the interest in preserving the “continued free flow of information to news reporters” and therefore the public. See Utah R. Evid. 509 (c) & (d). This language allows for consideration of the public value of the information reported to the public, a factor not expressly provided by Silkwood or Bottomly but that is critical in leak cases.

The Vermont Shield Law’s broad protections appear to encompass a reporter’s personal observations.  Prior to the Shield Law’s enactment, however, the Vermont Supreme Court held that a journalist does not have a qualified First Amendment privilege to refuse to testify about events witnessed or statements heard at a public meeting. See Spooner v. Town of Topsham, 182 Vt. 328, 329, 2007 VT 98, ¶ 1, 937 A.2d 641, 642 (Vt. 2007). In Spooner, the Vermont Supreme Court reversed the decision of the lower court to quash a subpoena calling for the deposition of a local newspaper reporter regarding statements made at a town selectboard meeting. The plaintiff, an unsuccessful candidate for the position of road foreman, had sued the town for employment discrimination. The reporter attended the meeting in his capacity as a member of the news media, and wrote an article reporting on the comments of several town selectmen which supported plaintiff’s claim. See id. ¶¶ 2–3, 182 Vt. at 329, 937 A.2d at 642. The Spooner Court found that, on the facts presented, the reporter did not have a qualified First Amendment privilege to “refuse to testify about the events he witnessed at a public selectboard hearing.” Id. ¶¶ 1, 14–16, 182 Vt. at 329, 335–37, 937 A.2d at 642, 646–47 (noting that “we are not persuaded that compelling the reporter’s testimony in this case will unduly burden the newsgathering function of the press”). Thus, arguably, the decision in Spooner can be limited to its facts: the witnessing of events by a reporter at a public meeting.

A number of courts have refused to apply the privilege to protect information learned by personal observation of a reporter.  See Commonwealth v. Jones, 82 Va. Cir. 379 (Norfolk 2011) (refusing to apply privilege to quash subpoena to a reporter to testify about a jailhouse interview voluntarily given by a man charged with murder); In re Multi-Jurisdictional Grand Jury, 64 Va. Cir. 423 (Chesterfield 2004) (ordering disclosure of materials relating to a jailhouse interview voluntarily given by a murder suspect); United States v. Sterling, 724 F.3d 482 (4th Cir. 2013) (refusing to quash a subpoena to a reporter to testify about the source of classified information received by the reporter in a criminal case against a former CIA officer); In re Shain, 978 F.2d 850 (4th Cir. 1992) (refusing to apply privilege to quash subpoenas to reporters who had interviewed a South Carolina state senator charged with bribery, where there was no issue of confidentiality or government harassment); United States v. Steelhammer, 561 F.2d 539 (4th Cir. 1977) (refusing to apply privilege to observations of reporters at a union strike where no confidential information and no government harassment was present); Gilbertson v. Jones, Civil No. 3:16cv255 (REP), 2016 WL 6518659 (E.D. Va. Sept. 22, 2016) (denying motion to quash subpoena seeking materials related to statements made by a defamation defendant where the context of the statements were at issue); Federico v. Lincoln Military Hous., LLC, No. 2:12-CV-80, 2014 WL 3962823 (E.D. Va. Aug. 13, 2014) (ordering the production of videos and communications relating to the condition of housing alleged to be sub-standard); United States v. King, 194 F.R.D. 569, 584 (E.D. Va. 2000) (refusing to quash subpoena for video of interview with a prosecution witness).

Washington's case law has not yet squarely addressed this issue.

Section 1(b) of the shield statute provides for a qualified privilege for "[a]ny news or information obtained or prepared by the news media" when it is "gathering, receiving, or processing news or information." See RCW 5.68.010(1(b).

In general, the law in West Virginia does not differ in its treatment of the privilege on the basis of whether or not the information was obtained by the reporter as an eyewitness. However, it should be remembered that the likelihood of overcoming the privilege is much higher if the party issuing the subpoena can show the reporter is an eyewitness to crucial information, and the reporter is the only source of that crucial information. In this regard, the Hudok court explained a narrow exception to the reporters’ privilege under such circumstances as follows:

"We recognize that there may be those occasions when a newsperson is the only individual with credible evidence that bears upon an important issue in civil litigation. In this situation, there may be no alternative under principles of due process other than to require such testimony. This narrow rule is justified by the fact that the media is given broad access to accident scenes as well as to the inner offices of government buildings and other places where they may be the only witnesses to a crucial statement or event."

389 S.E.2d at 193. The corollary to the foregoing is that, if the information sought by the party issuing the subpoena can be obtained from any other source, the privilege will protect the reporter from being forced to testify or disclose information. It is only when the reporter is the only person with information or knowledge that this exception would apply.  There have been no West Virginia cases where this exception to the reporters’ privilege has been applied.

It also should be noted that the mere fact of an individual's occupation as a reporter does not protect information obtained unless the individual is performing a journalistic function. As the Hudok court stated: "where the reporter is not engaged in the news-gathering function, he is subject to giving testimony as to what he observed to the same extent as any other witness." So if the reporter is simply a bystander to an event--and not acting as a reporter, no privilege or protection from disclosure would apply.

The shield law applies only to information “that is obtained or prepared by the news person in the news person's capacity in gathering, receiving, or preparing news or information for potential dissemination to the public.”  Wis. Stat. § 885.14(2)(a).  While there is no authority directly on point, Wisconsin courts are unlikely to extend the reporter's privilege to information obtained as an eyewitness.

Wyoming has no statutory or reported case law in this area.