Although states adopting shield laws share the general objective of protecting journalists from being compelled to reveal confidential news sources in the name of ensuring the free flow of information, their shield laws are different in various aspects.
Reporter’s privilege: absolute or qualified?
In general, shield laws of different states provide reporters either an absolute privilege or a qualified one. The shield law in Alabama offers absolute reporter privilege. According to Alabama Code Section 12-21-142 (2006), a “news-gathering person” is exempted from disclosing sources in any trial or before any court. In contrast, the Florida statute regarding protection of confidential sources restricts reporter’s privilege in certain conditions. Florida Evidence Code Section 90.5015 (2012) says that the journalist privilege “does not apply to physical evidence, eyewitness observations, or visual or audio recording of crimes.” Besides specifically identifying what kind of information is protected, Florida, like most other states adopt qualified shield laws, offers opportunity to overcome reporter’s privilege based on the three-part test Justice Stewart proposed in Branzburg v. Hayes. Such fundamental differences exist across states shield laws and most of them maintain conditions in which journalists cannot expect or pursue their privilege.
Who is protected?
State shield laws are also different in more specific aspects. Shield laws from different states offer various definitions for the group of people who are protected and meet with challenges when they are applied to new forms of journalism fostered by the Internet. Some states use broad terms to expand the scope of protection for reporters or even normal people who get involved in the process of news gathering and disseminating. Nebraska Statutes Section 20-146 (2006) protects any people who “procuring, gathering, writing, editing, or disseminating news or other information to the public.” It should be noticed that an absolute shield law does not necessarily provide a wider range of protection for a “journalist” it defines than a qualified one does. The shield law of Alabama gives an absolute privilege to people who work for newspaper, radio station and TV station. Comparatively, although Florida’s shield law merely admits the privilege of “professional journalists”, its scale of protection is actually larger than that of Alabama’s. In Florida Evidence Code Section 90.5015 (2012), a “professional journalist” takes up different jobs in the process of gathering and disseminating information like photographing, recording and publishing and works for news media other than newspaper and broadcasting media including news magazine and wire service.
Although state shield laws are different in how they use definitions to either expand or reduce the scope of the group of interest they try to protect, they are all faced with problems the Internet brings about.
The first issue underlies the fact that journalists nowadays not only work for newspaper and broadcast media but also go online and produce news on websites. Alabama’s shield law can fail to protect journalists who devote themselves to new media platforms because of its narrow protection for people who work in traditional media outlets while the broad definition of “covered person” in Nebraska’s shield law can be applied to the online world (Nebraska Statutes, 2006).
The second problem that can cause greater harm occurs as the line between professional journalist and normal person blurs. With the rise of citizen journalism that is stimulated by instantaneousness and interactivity of the Internet, increasing amount of news content provided by normal people emerges on blogs, online video sites and social media. Florida’s statute is an example reflecting the threat of ignoring the changing definition of journalism in the online world as it claims that gathering and delivering news “for gain or livelihood” is a requirement for being a “professional journalist”, a connection between paid occupation and reporter’s privilege that is reiterated in most state shield laws (Florida Evidence Code, 2012). The issue is that a person who is not employed by major traditional media outlets but do a job similar as that of a newspaper reporter is excluded from shield law’s protection. The failure of shield law to consider the development of journalism actually contradicts its purpose of ensuring the free flow of information as it risks restricting the most effective method through which the voice of minority can be spread.
The question about who does a shield law protect comes up again: should a shield law merely protect those highly-educated professionals who work in famous print or broadcast media or actually anyone who use the Internet to gather, process and disseminate newsworthy information on their own?
Some state courts have realized this issue and are flexible in dealing with practical cases. In O’Grady v. Superior Court of Santa Clara County, the Court of Appeal of California ruled that Jason O’Grady, an operator of an online news magazine, is protected from subpoena seeking to reveal identity of production source. The court held that “gathering and dissemination of online information by a variety of means, including the solicitation of submissions by confidential sources, constitutes the gathering and dissemination of news, as that phrase must be understood and applied under California’s shield law” (O’Grady v. Superior Court of Santa Clara County (139 Cal.App.4th 1423 at 38)). It is no doubt that how to interpret shield laws in the ever-changing environment have become a more and more challenging task for state courts.
What kind of information is under protection?
State shield laws are also different in the aspect of what kind of information regarding confidential sources is protected. First, shield laws differ in whether identity of sources alone or that along with content of the information is protected. Over half of the states adopting absolute shield law only protect reporters from being compelled to disclose identity of sources. Few absolute shield laws like Washington House Bill 1366 (2007) and many qualified shield laws including California Evidence Code Sections 1070 (2005) protect not only the identity of sources, but also information that tend to identify sources. Second, there is a difference between if publication of information is required. Absolute shield laws using succinct words like that of Alabama insist the consequence of dissemination of information, like publication of newspaper and broadcasting of TV and radio, is required for being entitled a reporter’s privilege. In contrast, most qualified shield laws, including few absolute shield laws, admit protection for unpublished information.In California, unpublished information like notes a covered person obtained in the process of gathering information is protected (California Evidence Code, 2005). Similarly, the absolute shield law in Nebraska protects unpublished or information including but not limited to “all notes, outtakes, photographs, film, tapes, or other data” (Nebraska Statutes, 2006).
Conditions under which reporter’s privilege is waived
While absolute shield laws prevent subpoenas under any condition, most qualified shield laws enforce reporters to testify in some circumstances. Speaking of application of qualified shield laws, there is a difference between criminal cases and civil cases. For instance, Florida’s shield law does not apply to information or observation of crimes reporter acquired (Florida Evidence Code, 2012). Similarly, California’s state law explicitly claims that reporter’s privilege varies according to whether the case he gets involved in is a civil case or a criminal one and the privilege is waived if the reporter is of one party to the case (California Evidence Code, 2005). Some qualified shield laws enable reporter’s privilege to be overcome in certain legal proceedings and when a testimony is for content rather than source. According to Delaware Code Section 4323 (2006), the reporter’s privilege diminishes in an adjudicative proceeding when testifying regarding content is not likely to increase the possibility of identifying source and a reporter is not protected from being compelled to disclose both content and identity of source if the party seeking his testimony can prove the reporter’s oath that disclosing such information will violate his agreement with the source.