Shield law is legislation designed to protect reporters’ privilege, or the right of news reporters to refuse to testify as to information and/or sources of information obtained during the news gathering and dissemination process. Currently the U.S. federal government has not enacted any national shield laws, but most states do have shield laws or other protections for reporters in place. (http://en.wikipedia.org/wiki/Shield_laws_in_the_United_States).
In the case of Holmes v. Winter, 22 N.Y. 3d 300, the court in a 4-3 decision “finds N.Y. Law absolute in insulating reporter’s sources, the court denies subpoena’s that might subject reporter to other state’s less protective law” (New York State Law Digest, No 650, February 2014). R., a Fox reporter disregarded a Colorado district court gag order barring the revelation of the content of a notebook, or even the fact of the notebook’s discovery. As R. was a resident of New York, N.Y. law applied to her. The court upheld that in the age of technology, even though R. was in Colorado when she learned of the notebook, she could have easily acquired this information by email, text or telephone, and could not be compelled to reveal her sources. (N.Y. State Law Digest, No 650, February 2014).
The FL shield law offers protection to “Professional Journalists”, (1a) a person regularly engaged in collecting, photographing, recording, writing, editing, reporting or publishing news for gain or livelihood… Fla. Stat. § 90.5015. In the case of State of Florida v Spence-Jones, the state was trying to compel journalist Jawan Strader to testify concerning the unpublished portions of an interview he had conducted with former commissioner Michelle Spence Jones. Judge Rosa Rodriguez denied the State’s motion, saying the information could be found elsewhere and that the desire to impeach a witness is not a compelling enough interest to overcome Strader’s privilege against testifying. (http://www.firstamendmentcenter.org/victory-for-fla-reporter-is-victory-for-state-shield-law).
With the age of technology such as it is, a popular question that is raised concerns the scope of protection. There are 3 questions within that area that are pertinent today: 1) Who is protected under shield law? 2) What information is protected? and 3) what type of protection is given? In both Holmes v Winter and State of Florida v Spence-Jones, both defendants were “Professional Journalists”. The issue of an amateur reporter has not been raised.
New York’s Shield Law provides protection, if you promised your source confidentiality or obtained information in return for a promise of confidentiality, then the shield is absolute. In other words, courts may not order you to reveal it under any circumstances. The absolute protection applies equally whether the information is sought in a civil or criminal case. It applies even if you are a party to the case in which information is sought (e.g., you are suing or being sued) (http://www.dmlp.org/legal-guide/new-york-protections-sources-and-source-material). Therefore, by publishing the news about the discovery of the notebook and its contents, R. did not waive her rights to be protected by Shield Law. In the case of Holmes v. Winter, the non-disclosure of the sources was protected. In the State of Florida v. Spence-Jones, the reporter’s personal interview with the accused was protected. Although in the material was not published, a professional reporter does not waive the privilege by publishing or broadcasting information Fla. Stat. § 90.5015. In both cases the source material is protected.
And last is the type of protection. Holmes v. Winter has a far reaching arm outside of the jurisdiction. The protection is so strong that is denies the subpoena coming from Colorado on the basis that the reporter is a citizen of N.Y. State. Since Shield Law is applied at a state level, enforcing the law between state lines is tricky. Enforcing this law in regards to their citizens when other states request that reporters reveal their sources comes down to the interpretation of the law. The case of State of Florida v. Spence Jones is applied in state, but still offers protection to the reporter.
Reporters who have concerns as to their protection under shield law or wondering how strong the protection is in their respective state should not hesitate to look to N.Y. as a precedent. Reporters should research applicable statutes for their state and ask for their attorney for advice on how the language is framed in terms of protection, and how it has been applied or interpreted in litigation in their state.
(C) 2014 Hilary Metz