Shield Laws in The United States - Current Issues

Current Issues

Some people believe that Congress should enact a federal shield law, or at least a federal standard pursuant to which the rights of journalists are clearly defined. The differences between states' laws has also raised questions regarding which laws apply where in regard to national reporting. Proponents of shield laws argue that they ensure that news gatherers may do their jobs to their fullest ability and that they help avoid a dichotomy between state laws and journalistic ethics. They also argue that a federal shield law should exist to eliminate contradictions between state laws.

Opponents argue that shield laws afford extra privileges to journalists and that no citizen should be able to ignore a court ordered subpoena. Opponents also cite problems with defining who is considered a journalist or news gatherer and who is not, and note that if journalists get special protection from the government, then they are getting special journalistic benefits from the government instead of acting in complete independence. Some opponents also argue that journalists are often forced to testify by federal courts only in cases where a federal shield law likely would not protect them anyway. Finally, the federal government likely has no constitutional right to enforce a shield law on state courts.

Many journalists, however, are subpoenaed to testify in criminal and civil cases for coverage of a variety of matters that do not involve questions of national security. In recent years, there have been bills for federal shield laws in the United States Congress; however, none of these bills have passed the Senate. A primary objection to recent efforts to pass a federal shield law has been concern about leaks of classified information, particularly given the modern potential of such leaks to be published globally on the Internet by non-traditional recipients, such as WikiLeaks, who might claim to be "journalists" under an unqualified shield law.

Sometimes, the press is not even immune from its sources, such as when the source wishes to remain anonymous and the journalist wishes to disclose it. The Supreme Court upheld that a source may have a right to confidentiality if an agreement was made with the reporter. Unfortunately, the bigger issue of source disclosure gets even more confusing, since the Cohen and Branzburg decisions could allow for the possibility of a journalist being subpoenaed by a court to disclose the name of a source, and being sued by a source under promissory estoppel laws for that disclosure. The current laws of the land, and the gray areas of forecasting potential consequences of publishing a story with confidential sources places the press in a very precarious situation. The current shield laws in some states give the press somewhat of an upper hand, however, since federal law does not recognize reportorial privilege in most cases, it is understandable how the press might feel muzzled.

The shield law privilege may also be waived by a reporter, as the New Jersey Supreme Court recently found in the case of In re Michael G. Venezia. In that case, a New Jersey newspaper published an article containing defamatory statements about the plaintiff. The article attributed the statements to a source who was identified by name in the article; the source later denied making the defamatory statements. The plaintiff filed a defamation lawsuit against the newspaper, the reporter and the alleged source of the defamatory statements. When the plaintiff sought to question the newspaper reporter about the article, the reporter and his newspaper refused, claiming protection under New Jersey's shield law. It was discovered, however, that the reporter had already given a statement under oath concerning the article—and, most important, the alleged source of the statement and exactly what that source said—to a local county prosecutor's office. The reporter also talked about his source and what the source said with a local municipal attorney. The Venezia court unanimously held that, while New Jersey has arguably the most protective shield law in the United States, a reporter waives the privilege when he talks about his sources and information outside of the newsgathering process, as did the reporter in Venezia. The Venezia court stated: "The privilege holder is not permitted to step from behind the shield as he pleases, sallying forth one moment to make a disclosure to one person and then to seek the shield's protection from having to repeat the same disclosure to another person. A reporter cannot play peek-a-boo with the privilege." Thus, the Venezia court ordered that the reporter must submit to the plaintiff's deposition request. Venezia is highly significant because it marks the first time that a reporter has ever been found to have waived the privilege under New Jersey's current shield law, and because it explores the issue of what is or is not a "newsgathering activity," and, thus, what activities are subject to protection under the law.

Currently, courts are struggling to define the standards for when shield laws should apply to non-traditional media outlets, particularly in the context of blogs and Internet publishing. In Obsidian Finance Group, LLC v. Cox, the United States District Court for the District of Oregon found that to qualify as a reporter, a standard of professionalism must be met, including but not limited to being associated with a traditional news print or television media outlet or obtaining a journalism degree. Conversely, in The Mortgage Specialists, Inc. v. Implode-Explode Heavy Industries, Inc. the New Hampshire Supreme Court adopted a much broader definition of media that applies to blogs and website curators, reiterating that "freedom of the press is a fundamental personal right which is not confined to newspapers and periodicals."