IV. Who is covered

Following a fact-sensitive analysis, First Circuit courts have in certain circumstances extended the reporter’s privilege to cover parties other than those engaged in traditional journalism and reporting, such as professors and research analysts.

The Second Circuit's test for who can benefit from the reporter's privilege is broad. The Second Circuit, in Von Bulow v. Von Bulow, held that "the individual claiming the privilege must demonstrate, through competent evidence, the intent to use material -- sought, gathered or received -- to disseminate information to the public and that such intent existed at the inception of the newsgathering process." 811 F.2d 136, 144 (2d Cir. 1987). The court went on to say: "The intended manner of dissemination may be by newspaper, magazine, book, public or private broadcast medium, handbill or the like, for 'the press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion.'" Id. (quoting Lovell v. Griffin, 303 U.S. 444 (1938).

It appears that the Third Circuit has only once ventured into the difficult business of defining who is entitled to invoke the First Amendment-based reporter's privilege, in In re Madden, 151 F.3d 125 (3d Cir. 1998). There, an employee of "World Championship Wrestling" was responsible for recording "commentaries" regarding professional wrestlers and wrestling events on a 900 telephone line, for access to which callers paid a fee. Id. at 126-27. Relying largely on reasoning of other circuits, the court held that persons or entities seeking to invoke the First Amendment-based journalist's privilege have the burden of demonstrating that they are "engaged in investigative reporting, gathering news, and have the intent at the beginning of the newsgathering process to disseminate this information to the public." Id. at 130. Because Madden concededly was an "entertainer," not a reporter, and concededly was not primarily in the business of gathering news or facts, but of creating "hype" and "fiction," the Third Circuit concluded that he was not entitled to invoke the journalist's privilege. Id. As the court explained, "[t]his test does not grant status to any person with a manuscript, a web page or a film, but requires an intent at the inception of the newsgathering process to disseminate investigative news to the public. As we see it, the privilege is available only to those persons whose purposes are those traditionally inherent to the press; persons gathering news for publication." Id. at 129-30. Nevertheless, it also observed that “it makes no difference whether the intended manner of dissemination was by newspaper, magazine, book, public or private broadcast or handbill because the press, in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion. Id. at 129 (citation omitted); see also, e.g., In re Domestic Drywall Antitrust Litig., 300 F.R.D. 234, 247 (E.D. Pa. 2014) (finding that industry research company using confidential sources to compile reports sold only to large institutional investors did not have requisite intent to disseminate to public and therefore did not qualify for privilege); In re Scott Paper Co. Sec. Litig., 145 F.R.D. 366, 368-69 (E.D. Pa. 1992) (intent to disseminate information for good of public weighed in favor of finding that credit reporting company was entitled to invoke journalist's privilege); Fox v. Lackawanna Cty., No. 3:16-CV-1511, 2018 WL 4002900, 2018 U.S. Dist. LEXIS 142458 (M.D. Pa. Aug. 22, 2018) (holding that contributor of opinion piece to newspaper was not protected by Pennsylvania Shield Law, likening author to “unaffiliated bloggers” denied protection by courts in other jurisdictions).

The Fourth Circuit reporter’s privilege jurisprudence does not test the boundaries of whom the privilege protects. All of the case law has dealt with persons/entities and information fitting within traditional conceptions of “reporters” and “news.” Thus, it is difficult to predict how the courts of the Circuit would classify nontraditional news gatherers, such as students or academic researchers, or nontraditional news outlets, such as newsletters, reports for investors, or internet publications.

The Ninth Circuit has historically applied a liberal standard when determining who has standing to invoke the reporter’s privilege. Instead of focusing on the professional affiliation of the person invoking the privilege, the Ninth Circuit usually focuses on whether the privilege-claimer had an intent to disseminate information to the public at the time he or she was gathering the information. Hence, the critical question is whether the person seeking to invoke the privilege had the intent to use material—sought, gathered, or received—to disseminate information to the public and whether such intent existed at the inception of the newsgathering process. See Shoen I, 5 F.3d at 1293 (reversing and remanding an order that held an investigative reporter in contempt for refusing to divulge information that was gathered for use in his book); Planet Aid, Inc. v. Reveal, Ctr. for Investigative Reporting, No. 17-CV-03695-MMC, 2019 WL 935131, at *2 (N.D. Cal. Feb. 26, 2019) (applying the privilege to a journalist’s conversation, though not all of the topics were intended for publication). The Shoen I court adopted the reasoning of the Second Circuit when articulating the above test, stating “the journalist’s privilege is designed to protect investigative reporting, regardless of the medium used to report the news to the public.” Id. That said, the Ninth Circuit panel addressing web journalist Josh Wolf’s appeal of a civil contempt order did not explicitly address whether or not Wolf was sufficiently a “journalist” to have standing to invoke the reporter’s privilege, and suggested that the California state law protection would not apply because “Wolf produced no evidence this videotape was made while he was” connected with or employed by a newspaper, magazine, or other periodical publication, or by a press association or wire service.  In re Grand Jury Subpoena (Wolf v. United States), 201 Fed. App’x 430, 432 n.1 (9th Cir. 2006) (citing Cal. Const. art. I, § 2(b)).

Alabama's shield statute, Ala. Code § 12-21-142, applies to persons "engaged in, connected with or employed on any newspaper, radio broadcasting station or television station, while engaged in a newsgathering capacity." In Price v. Time, Inc., 416 F.3d 1327, 1335-43 (11th Cir. 2005), after the Supreme Court of Alabama had declined to answer a certified question regarding the scope of the shield statute, the Eleventh Circuit held that magazine reporters are excluded from the statute’s application. Likewise, in an earlier, unreported opinion, a federal court sitting in the state strictly construed the shield statute to exclude reporters working for trade journals. Long v. Cooper, No. CV85-H-801-S (N.D. Ala. Apr. 10, 1986).

In Matera, the Arizona Court of Appeals held that the Arizona Media Subpoena Law applies only "to persons who gather and disseminate news on an ongoing basis as part of the organized, traditional, mass media." 170 Ariz. at 448, 825 P.2d at 973. Accordingly, the court ruled that the statute did not apply to an author involved in writing a book about an undercover figure that led to criminal prosecution of several politicians, where the author was not actively and regularly engaged in gathering and reporting the news. 170 Ariz. at 448, 825 P.2d at 973.

However, the Matera court went on to consider the application of the Arizona Shield Law to the author and did not hold the shield statute inapplicable because of the author's status. Instead, the court found that the statute did not protect the author because he failed to demonstrate that complying with the subpoena would result in the disclosure of confidential sources of information. 170 Ariz. at 450, 825 P.2d at 975; see also Reinstein, 240 Ariz. at 447-48, 381 P.3d at 241-42 (finding that Media Shield Law did not protect reporter where subpoena did not “seek disclosure of a confidential source.”).

The statute expressly covers editors, reporters, or other writers for any newspaper, periodical, radio station, television station, or internet news source.

California’s reporter’s privilege explicitly protects (1) “[a] publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication or by a press association or wire service, or any person who has been so connected or employed” and (2) “a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed.” Cal. Const. art. I, § 2(b). No California case has addressed whether it protects other types of journalists, such as book authors.

However, the courts generally have been liberal in defining these terms, for example, by including freelance reporters in the protection of the privilege. See, e.g., People v. Von Villas, 10 Cal. App. 4th 201, 231-32, 13 Cal. Rptr. 2d 62 (1992); Playboy Enters., Inc. v. Superior Court, 154 Cal. App. 3d 14, 28-29, 201 Cal. Rptr. 207 (1984). California courts also have extended the privilege to bloggers engaged in the gathering and dissemination of news. O’Grady v. Superior Court, 139 Cal. App. 4th 1423, 1457, 44 Cal. Rptr. 3d 72 (2006).

One Court of Appeal held that to be entitled to protection, “the person or entity invoking the shield law [must] be engaged in legitimate journalistic purposes, or have exercised judgmental discretion in such activities.” Rancho Publ’ns v. Superior Court, 68 Cal. App. 4th 1538, 1544-46, 81 Cal. Rptr. 2d 274 (1999) (citing Delaney v. Superior Court, 50 Cal. 3d 785, 798 n.8, 789 P.2d 934, 268 Cal. Rptr. 753 (1990)) (rejecting argument that paid “advertorials” were protected content under shield law). Consequently, this case requires “a prima facie showing” that the information was obtained “for the journalistic purpose of communicating information to the public.” Id. at 1546. Another Court of Appeal asserted that the reporter’s burden is “to show that they were in a class of persons protected by the shield law and that the information provided by their source was ‘procured . . . for news or news commentary purposes on radio or television.’” In re Willon, 47 Cal. App. 4th 1080, 1092-93, 55 Cal. Rptr. 2d 245 (1996) (citations omitted).

The Shield Law broadly defines a newsperson as "any member of the mass media and any employee or independent contractor of a member of the mass media who is engaged to gather, receive, observe, process, prepare, write or edit news information for dissemination to the public through the mass media." C.R.S. § 13-90-119(1)(c).

The Shield Law extends its protections to all members of the “News Media,” which it defines as:

(A) Any newspaper, magazine or other periodical, book publisher, news agency, wire service, radio or television station or network, cable or satellite or other transmission system or carrier, or channel or programming service for such station, network, system or carrier, or audio or audiovisual production company that disseminates information to the public, whether by print, broadcast, photographic, mechanical, electronic or any other means or medium;

(B) Any person who is or has been an employee, agent or independent contractor of any entity specified in subparagraph (A) of this subdivision and is or has been engaged in gathering, preparing or disseminating information to the public for such entity, or any other person supervising or assisting such person with gathering, preparing or disseminating information; or

(C) Any parent, subsidiary, division or affiliate of any person or entity specified in subparagraph (A) or (B) of this subdivision to the extent the subpoena or other compulsory process seeks the identity of a source or the information described in subsection (b) of this section.

Conn. Gen. Stat. §52-146t(a)(2).

Notably, some courts have held Connecticut’s Shield Law to not protect bloggers. In State v. Buhl, 2012 WL 4902683 at*7, n. 5, the court interpreted the Shield Law’s legislative history to hold that “‘News media’ does not include internet blog sites.” (citing 49 S.Proc., Pt. 11, 2006 Sess., p. 3282, remarks of Senator McDonald). The court went on to quote newspaper editor Chris Powell’s comment that: “if I was running an organized crime family, the first thing I would do under this bill would be to start a newsletter or newspaper in order to be entitle[d] to the privilege.” Id. (citing Conn. Joint Committee Judiciary Hearings, Pt. 5, 2006 Sess., p. 1322). In 2019, a federal court in Illinois interpreted the Connecticut Shield Law to exclude bloggers from its protection. See Von Ribbeck v. Negroni, No. 19 C 1205, 2019 WL 6894400, at *4 (N.D. Ill. Dec. 18, 2019).

The D.C. Circuit does not make the reporter’s privilege available only to those persons working for established publications or programs.  Rather, the Circuit looks broadly at whether the person seeking to invoke the privilege intended to disseminate information to the public.

The District’s shield law defines “news media” as newspapers, magazines, journals, press associations, news agencies, wire services, radio, television, or any printed, photographic, mechanical, or electronic means of disseminating news and information to the public.  D.C. Code § 16-4701.

Generally speaking, Florida’s shield law protects “professional journalists” from compelled disclosure of information obtained while actively gathering “news” as both these terms are defined by the statute.

By its express statutory language, the scope of Georgia's privilege is broad. It applies to “[a]ny person, company, or other entity engaged in the gathering or dissemination of news for the public through a newspaper, book, magazine, or radio or television broadcast, or electronic means.” O.C.G.A. § 24-5-508.

With respect to such persons, the privilege applies not just to information or records obtained in “gathering” the news, but also to information and records prepared in “disseminating” the news. This latter provision precludes any claim that drafts or other internal records in the possession of editors or other news personnel are not privileged.

Under the terms of the statute, the privilege does not apply where the one asserting the privilege is a party, O.C.G.A. § 24-5-508, e.g., a defendant in a defamation action.  But see Atlanta Journal-Constitution v. Jewell, 251 Ga. App. 808, 555 S.E. 2d 175 (2001) (recognizing in defamation action that confidential sources must still be afforded protection under traditional discovery principles), cert. denied, 537 U.S. 814 (2002). See also Bryant v. Cox Enterprises, 311 Ga. App. 230, 715 S.E. 2d 458 (2011) (affirming trial court’s denial of motion to compel disclosure of confidential sources and entry of summary judgment for newspaper).

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

The Idaho decisions do not attempt to define “reporter” or come up with any other particular definition of the person or entity eligible to invoke the reporter’s privilege.

Three key terms are defined in the Statute: “reporter,” “news medium,” and “source.” 735 ILCS 5/8-902. Because the statutory definitions are rather broad, courts have considerable leeway in deciding what actually falls within such definitions. For example, an Illinois appellate court concluded that a photojournalist was within the definition of “reporter” and a photograph fell within the statutory definition of a “source” of information. The court stated “[p]hotojournalism is not a word crafted to artificially enhance the capacity to tell a story and gather or report the news by means of an image. A photojournalist is a reporter. When a reporter obtains news or information by means of photography, the photograph is a ‘source’ of information within the plain meaning of section 8-901 as defined in section 8-902(c).” People v. Slover, 323 Ill. App. 3d 620, 624, 753 N.E.2d 554, 557 (2001).

The reporter's privilege is available if the party resisting production "falls within the class of persons qualif[ying] for the privilege" and the information sought to be protected was "obtained in the news gathering process." Bell, 412 N.W.2d at 587–88. The phrases "class of persons" and "news gathering process" are not defined by the case law. In Waterloo/Cedar Falls Courier, the court held that the privilege belonged to the editors and not the newspaper that employed them. 646 N.W.2d at 102).

The Kansas shield law affords protection to “journalists.”  The expression “journalist” is defined at K.S.A. 60-480(a), which provides that:

“Journalist” means: (1) A publisher, editor, reporter or other person employed by a newspaper, magazine, news wire service, television station or radio station who gathers, receives or processes information for communication to the public; or (2) an online journal in the regular business of newsgathering and disseminating news or information to the public.

The decision in Silkwood, which involved the privilege claim of a documentary film maker, suggests that the Tenth Circuit will resolve the question of “who is covered” by the federal common law privilege liberally. In the subsequent case of Grandbouche v. Clancy, 825 F.2d 1463 (10th Cir. 1987), the court recognized the qualified First Amendment privilege rights of an individual who did not claim to be a news gatherer or representative of any communications medium.

Kentucky’s shield law, KRS 421.100, applies to any person “engaged or employed” by or “connected” with a “newspaper” or “radio or television broadcasting station.”

The shield law applies to a "journalist." 16 M.R.S.A. § 61. That term is not defined by statute, nor have the courts addressed the term’s definition or scope.

Michigan courts have not definitively made distinctions on the basis of the news gatherer's status. The major appellate decision on the topic involved an international trade association of photo dealers and photofinishers which gathered data concerning the operations and activities of its members and published trade news periodicals. See In re Photo Mktg. Ass’n Int’l, 120 Mich. App. at 527. Although not a traditional news media outlet, the court found sufficient facts to justify the possible application of a news writer's privilege and remanded the matter to the trial court to determine the applicability of a news writer's privilege to the respondent. Id.

Because Missouri has no “shield law” statute, the only discussion of quashing subpoenas has been in the context of non-reporters; those cases in Missouri have concerned general discovery issues, which are not relevant here, and to issues related to confidential communications in the context of an attorney-client relationship or a doctor-client relations.

Coverage of Nebraska's shield law statute is defined by function, not title. Thus, any person "engaged in procuring, gathering, writing, editing, or disseminating news or other information to the public" is entitled to protection under the statute. Neb. Rev. Stat. § 20-146.

NRS 49.275 covers reporters, former reporters, and editorial employees of any newspaper, periodical or press association. It all applies to employees of any radio or television station. The statute does not specifically define these terms. The Nevada Supreme Court declined to “resolve whether or not a blog falls under the definition of a newspaper” but concluded that “a blog should not be disqualified from the news shield statute under MRS 49.275 merely on the basis that the blog is digital, rather than appearing in an ink-printed, physical form.” Toll v. Wilson, 135 Nev. 430, 435, 453 P.3d 1215, 1219 (2019).

Both Rule 11-514 and the statutory privilege applicable to nonjudicial proceedings undertake to define the terms of the privilege in considerable detail. As a practical matter, however, these definitions are expansive enough to cover virtually any journalist or media organization.

In 1981, in response to decisions such as that in People v. LeGrand, 67 A.D.2d 446, 415 N.Y.S.2d 252 (2d Dep't 1979) (holding that a book author who had previously worked for numerous media organizations is not a journalist for the purposes of the Shield Law), Civil Rights Law § 79-h was amended to include not only journalists working for traditional news media, but also those working for any "professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public." Civ. Rights § 79-h(a)(6). Under the statute, "professional journalist" is defined as one who gathers news "for gain or livelihood" intended for dissemination to the public, and includes "gathering, preparing, collecting, writing, editing, filming, taping or photographing of news." Civ. Rights § 79-h(a)(6).

The applicable North Dakota statute does not define who qualifies as a “reporter” or what constitutes “news.” The plain language of the statute states that any person who is engaged in news gathering for the purpose of reporting is protected by the statute. North Dakota does not have any case law that delineates an exclusive or inclusive definition of who is a “reporter.”

The privilege statute is limited to a “journalist,” a term which the statute defines.  Governmental entities or persons employed by them who are “engaged in governmental information activities” are excluded from the term “journalist.”

Oregon's reporter's privilege extends to every person engaged in any medium of newsgathering.

1. Shield Law

Pennsylvania’s 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 Javens v. Doe, 45 Med. L. Rep. 1808, 1811 (Beaver Cty. C.C.P. Mar. 7, 2017), a trial court held that the owner/publisher of a website that posts news is covered by the Shield Law. The court explained that because the website “is available to anyone who wishes to access” it, the site “constitutes a newspaper of general circulation.” Id. The court continued:

The fact that the content is published online rather than in a traditional format is inconsequential considering the clear intent of the statute. There is no indication in the language of the Shield Law that its provisions are limited to publications printed in a traditional “hard copy” print format. Further, it is apparent that [the owner/ publisher] operates the website for the purpose of gathering, compiling and publishing news.

Id.

In one case, a federal court held, in an unpublished decision, that the Shield Law does not apply to individuals who have merely “written editorials expressing [their] opinions” about a given news story. Fox v. Lackawanna Cty., 2018 U.S. Dist. LEXIS 142458, at *4 (M.D. Pa. Aug. 22, 2018). The underlying case involved allegations that corrections officers had sexually abused female inmates. The defendants subpoenaed David Davison to appear for a deposition. Mr. Davison, representing himself pro se, moved to quash the subpoena under the Shield Law because “the Scranton Times published his writing as it relates to the sexual abuse at the prison” and because he purportedly was “developing a non-fictional book for hopeful[] publication besides a made for tv screen play based on these facts gained from investigating the sexual abuse alligations [sic] at the prison for over a decade.” Id. at *3 (citations omitted). He claimed that his relevant knowledge was based on conversations with confidential sources, who worked at the prison, and further that he had “a close relationship with a Scranton Times reporter” and had introduced the reporter to “whistleblowers.”  Id. at *3, 5.

The court denied the motion to quash, holding that Mr. Davison had failed to identify any authority suggesting that any of the facts set out in his motion brought him within the ambit of § 5942(a). Ultimately, he was not able to establish that he was “engaged on, connected with, or employed by” any newspaper and thus, the court held, the Shield Law did not apply. Significantly, the court did not provide any analysis about when an independent journalist is “engaged” or “connected” with a newspaper sufficient to invoke the Shield Law’s absolute protection.

2. First Amendment

In Pennsylvania, the First Amendment reporter’s privilege has been extended to members of the “news media,” including “reporters.” Davis v. Glanton, 705 A.2d 879, 885 (Pa. Super. 1997). There are no Pennsylvania cases that discuss the definitions of “news media” or “reporter,” for the purposes of the privilege. The Pennsylvania Supreme Court has suggested that the state’s courts will follow Third Circuit precedent in addressing the scope of the reporter’s privilege. Commonwealth v. Bowden, 838 A.2d 740, 753 n.10 (Pa. 2003); Castellani v. Scranton Times, L.P., 956 A.2d 937, 950 n.11 (Pa. 2008). The Third Circuit has held that a person is protected by the privilege if “at the beginning of the news-gathering process,” she has “the intention of disseminating her information to the public” and “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.” Titan Sports, Inc. v. Turner Broad. Sys. (In re Madden), 151 F.3d 125, 128-29 (3d Cir. 1998).

The Rhode Island Shield Law, or the Newsman's Privilege Act, broadly applies to confidential information "received or obtained [by an individual] in his or her capacity as a reporter, editor, commentator, journalist, writer, correspondent, news photographer, or other person directly engaged in the gathering or presentation of news for any accredited newspaper, periodical, press association, newspaper syndicate, wire service, or radio or television station." R.I. Gen. Laws § 9-19.1-2.

The South Carolina shield statute provides a qualified privilege against compelled testimony or production for "A person, company, or entity engaged in or that has been engaged in the gathering and dissemination of news for the public through a newspaper, book, magazine, radio, television, news or wire service, or other medium." "News" is not defined, but under the rules of decision in state courts, the legislature will have been credited with using the word as it is generally understood.

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). This protection is broad and appears to cover most types of newsgatherers. There is no case law further defining who is covered by the shield law, but it has generally been given a broad application by Tennessee courts.

The Texas shield law defines the terms “journalist,” “news medium,” and “communication service provider.” See Tex. Civ. Prac. & Rem. Code §§22.021(1), (2), and (3) and Tex. Code Crim. Proc. art. 38.11, §§1(1), (2), and (3). The “journalist,” as defined in the statute, cannot be compelled to testify unless the tests set forth in the statute are met. Additionally, a subpoena may not compel a “communications service provider” or “news medium,” as defined by the statute, to disclose information unless the tests set forth in the statute are met. See Tex. Civ. Prac. & Rem. Code §22.023 and Tex. Code Crim. Proc. art. 38.11, §3.  “Bias and selectivity in reporting” does not determine applicability of the privilege.  Abraham v. Greer, 509 S.W.3d 609 (Tex. App.—Amarillo 2016, pet. denied).  Rather, courts will rely solely on the definition in the statute.  Id.

There is no statutory or case law addressing this issue.

The Reporters’ Privilege statute, W.Va. Code § 57-3-10, defines who is a “reporter” entitled to the statutory privilege to be protected from compelled disclosure of confidential sources or information that may be used to identify a confidential source.  In the statute, a "Reporter" means:

“[A] person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports, or publishes news or information that concerns matters of public interest for dissemination to the public for a substantial portion of the person's livelihood, or a supervisor, or employer of that person in that capacity: Provided, That a student reporter at an accredited educational institution who meets all of the requirements of this definition, except that his or her reporting may not provide a portion of his or her livelihood, meets the definition of reporter for purposes of this section.”

Id.; see generally Ramezan v. Hough, 2015 WL 5331810, at *1 (W. Va. 2015) (noting that “the circuit court first determined that petitioner’s tax records were irrelevant to the determination of whether petitioner could exercise the statutory privilege West Virginia Code § 57–3–10 affords to news reporters and, therefore, petitioner did not have to produce those records.  Second, the circuit court found that petitioner was a “reporter” within the meaning of West Virginia Code § 57–3–10 and was able to exercise the privilege and protect the identity of his source.”).

No West Virginia case directly addresses to whom the reporter's privilege applies outside of the statute’s limited application to confidential sources and information from which the identity of a confidential source may be disclosed.  In the Hudok case, however, the court observed in a footnote that "[t]he question of what type of activities make a person a journalist and what type of material is covered as news gathering is discussed in Von Bulow by Auersperg v. Von Bulow, 811 F.2d 136 (2d Cir.), cert. denied, 481 U.S. 1015 (1987)."  389 S.E.2d at 191 n.7. The Von Bulow court explained the foregoing broad criteria for determining who is covered by a reporter's privilege:

"We discern certain principles which we must use in determining whether, in the first instance, one is a member of the class entitled to claim the privilege. First, the process of newsgathering is a protected right under the First Amendment, albeit a qualified one. This qualified right, which results in the journalist's privilege, emanates from the strong public policy supporting the unfettered communication of information by the journalist to the public. Second, whether a person is a journalist, and thus protected by the privilege, must be determined by the person's intent at the inception of the information-gathering process. Third, an individual successfully may assert the journalist's privilege if he is involved in activities traditionally associated with the gathering and dissemination of news, even though he may not ordinarily be a member of the institutionalized press. Fourth, the relationship between the journalist and his source may be confidential or nonconfidential for purposes of the privilege. Fifth, unpublished resource material likewise may be protected."

811 F.2d at 142.  Thus, who is covered by the reporters’ privilege under Hudok appears to depend upon the person's intent at the inception of the information-gathering process and whether the person is involved in activities traditionally associated with the gathering and dissemination of news, but is not dependent on whether the person is a member of the “institutionalized” press.

The shield law provides protection only to a “news person,” which is defined as follows:

(a) Any business or organization that, by means of print, broadcast, photographic, mechanical, electronic, or other medium, disseminates on a regular and consistent basis news or information to the public, including a newspaper, magazine, or other periodical; book publisher; news agency; wire service; radio or television station or network; cable or satellite network, service, or carrier; or audio or audiovisual production company; and a parent, subsidiary, division, or affiliate of any of these businesses or organizations.

(b) Any person who is or has been engaged in gathering, receiving, preparing, or disseminating news or information to the public for an entity described in par. (a), including any person supervising or assisting the person in gathering, receiving, preparing, or disseminating such news or information.

Wis. Stat. § 885.14(1).  This definition applies to media entities and to individuals engaged in newsgathering on behalf of such entities.

Wyoming does not have a shield law or any reported case law discussing who is covered by a First Amendment privilege against disclosure of certain information. The Tenth Circuit Court of Appeals ruled that the balancing test outlined in Silkwood v. Kerr-McGee should have been applied to a plaintiff, who was not a journalist, who claimed that forced production of certain membership, mailing and attendance lists requested in discovery would violate his First Amendment right of freedom of association. Grandbouche v. Clancy, 825 F. 2d 1463 (10th Cir. 1987).