Reporters' Privilege

Sometimes. While this question is often asked in the mainstream media and on blogs, it does not frame the debate very well. You can use blogging software for journalism, and many bloggers do. But you can also use blogging software for other purposes. What makes a journalist a journalist is whether she is gathering news for dissemination to the public, not the method or medium she uses to publish. So the better way to frame the debate is: Can journalists blog?

Of course! If you are engaged in journalism, your chosen medium of expression should not make a difference. The freedom of the press applies to every sort of publication that affords a vehicle of information and opinion, whether online or offline.

Some states have laws that specifically protect the speech and privacy rights of journalists. These can include reporter's shield laws and retraction statutes, fee waivers for Freedom on Information Act requests, even campaign finance laws.

Almost all the federal and state courts have found that state and federal constitutions provide a qualified privilege to allow journalists to keep private the names of their confidential sources and the unpublished information provided by the sources. This protects the anonymity of news sources and thus helps encourage the free flow of information.

Courts have set forth a multi-factor balancing test for deciding the applicability of the constitutional reporter's privilege. Generally, the subpoenaing party must show that the material is unavailable despite exhaustion of all reasonable alternative sources, that there is a compelling and overriding interest in obtaining the information, and that it is clearly relevant to an important issue in the case. In the ordinary civil case, the privilege will prevent discovery.

Some courts have placed more severe restrictions on this First Amendment right in certain circumstances, such as criminal cases. The Reporter's Committee for Freedom of the Press has an excellent compendium of the reporter's privilege laws in every jurisdiction.

Courts use a test to determine whether someone invoking the reporter's privilege has the right to do it. A test used by many federal courts is whether that person intended to disseminate information to the public, and whether that intent existed at the inception of the newsgathering process (where "newsgathering process" can mean seeking, collecting, or receiving information from a source). Under this test, courts have provided the privilege to non-traditional journalists, including book authors and documentary filmmakers.

More than 30 states have elected to provide protection for journalists over and above the protection afforded by the constitutional reporter's privilege. For example, through an initiative the people of California included a reporter's shield in the California Constitution. This shield provides "absolute protection to nonparty journalists in civil litigation from being compelled to disclose unpublished information." It may be "overcome only by a countervailing federal constitutional right." The California reporter's shield protects all persons "connected with...a newspaper, magazines, or other periodical publication," without limitation.

Yes. As the California Supreme Court acknowledged, "The press' function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired. Compelling a reporter to disclose the identity of a source may significantly interfere with this news gathering ability; journalists frequently depend on informants to gather news, and confidentiality is often essential to establishing a relationship with an informant." (Mitchell v. Superior Court)

The Reporter's Committee for Freedom of the Press has an excellent compendium of the reporter's privilege laws in every jurisdiction.