Reporter’s Privilege: Protecting the Right to Know

The idea of reporter’s privilege allows reporters to keep their confidential sources from being revealed.

Washington, D.C., and 49 states have laws or judicial rulings that protect reporters from being forced to testify about sources or the information they reveal.

But there is no federal shield law and federal courts are split on a First Amendment-based privilege, which means a reporter involved in a federal case can be forced to reveal their sources or face fines or jail.

Reporter's privilege and confidential sources

Journalists prefer to use sources named “on the record” whenever possible because it makes their stories more believable. But sometimes they must rely on confidential sources — people whose identity only the reporter and their outlet know.

This is because those sources would otherwise refuse to speak to a reporter out of fear that they will be retaliated against. They fear for their own and/or their family’s safety, that they will be fired from their jobs, or that they will be shunned in their communities.

A reporter’s promise to keep a source’s identity confidential doesn’t mean much if that reporter could be forced to identify the source in court. That’s why, as of 2024, 49 states and Washington, D.C., have recognized a “reporter’s privilege” – that is, the right to protect those sources from being made public. Some states have passed laws often referred to as a shield law. Others have a judicial decision from the highest court in that state. Wyoming is the lone exception, having no shield law and no decision from its state supreme court protecting a reporter’s right to keep sources confidential (but not foreclosing that possibility either). These laws or court decisions offer at least some protection to a reporter from having to reveal the identity of a confidential source or disclose confidential information.

What is reporter's privilege?

Reporter’s privilege protects journalists from having to testify or produce information in court. Sometimes the reporter will be asked to testify or produce information about a story that they have already published. The story itself may have revealed something previously unknown to the public or prosecutors, leading to a criminal or civil trial in which the journalist is asked to testify. Reporters may also be asked to testify about unpublished stories. That’s less common because the fact that the reporter has information from a confidential source isn’t going to be widely known.

During criminal and civil trials, the court may issue a subpoena (or a formal, written order) to someone requiring that they testify in the trial. In some cases, it requires that they bring documents or other evidence with them.

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There are only a few ways to get out of an order to testify. One is a “privilege” that says you do not have to testify about certain conversations in court. A privilege is a protection that is often written into law – or clearly recognized by the court – because society recognizes the need for open and honest conversations between the people involved in certain relationships. The most common privileges recognized in federal and state laws include the attorney-client privilege, the doctor-patient privilege, the spousal privilege and the priest-penitent privilege.

If these arguments fail, and you still don’t comply with the subpoena, you can then be held in contempt of court and be punished by the court with fines or jail time.

How does reporter's privilege relate to the First Amendment?

The United States Supreme Court ruled in the 1972 case Branzburg v. Hayes that the First Amendment does not protect a journalist from having to identify a confidential source or produce confidential information to a grand jury.

Branzburg v. Hayes involved three reporters who got access to a story on the condition that they not reveal the identities of the people present. They each published a story that caught the eye of law enforcement, who demanded that the reporters appear before grand juries to allow those people to be criminally charged. The reporters were:

• Paul Branzburg of the Louisville (Kentucky) Courier-Journal, who was subpoenaed to testify regarding his reporting about hashish manufacturing and distribution.
• Earl Caldwell of The New York Times, who was invited to a meeting of the Black Panthers, who were seen as a militant group by law enforcement.
• Paul Pappas, a Providence, Rhode Island, television reporter, who was also reporting on the Black Panthers.

The reporters all refused to divulge the identities of the people they had seen and spoken with and were charged with contempt of court. Their cases were combined into one case before the Supreme Court.

The court ruled that the First Amendment protects more than just publication of news. It also protects newsgathering as integral to the publication process.

But the court said that this First Amendment protection for newsgathering is not violated when a reporter is required to testify before a federal or state grand jury.

The Supreme Court held that there is no First Amendment-based reporter’s privilege that protects a reporter from having to testify before a grand jury. A court’s need for information sometimes outweighs the need to protect the identity of a confidential source. And the danger of identifying a confidential source is reduced because grand jury proceedings are secret.

It is important to remember that Branzburg v. Hayes only held that reporters cannot rely on the First Amendment to avoid testifying before a grand jury. But the reporter’s privilege exists in all but one state anyway because:

• About half of the federal courts around the country have recognized a First Amendment-based reporter’s privilege in situations other than a grand jury, though often only in civil cases, not criminal cases. The others recognize a weaker privilege with a less strict test than a First Amendment test that essentially balances the need for the information versus the burden on the journalist. That means a reporter may not have to testify or produce documents in more “open” court situations like pre-trial hearings or at the trial itself.
• More than 40 states and the District of Columbia have a true shield law. It is important to note that these only apply in the relevant state court. They do not protect a reporter who is being asked to testify or produce documents in federal court, even if that court is in a state that recognizes the reporter’s privilege.
• At the federal level, Department of Justice guidelines limit when federal law enforcement agencies will issue subpoenas to reporters and require the express approval of the United States Attorney General. But these are voluntary so there is no penalty if the federal government does not follow these guidelines.

In the first three years after Branzburg v. Hayes, 86 federal shield laws were introduced in Congress, but none passed, in part because there were divisions within the news industry on what a reporter’s privilege should look like.

A series of cases resulting in jail time or major fines for contempt of court for journalists who unsuccessfully fought against subpoenas reignited the movement for a federal shield law in the 21st century. Most of these 21st-century efforts passed the House of Representatives but failed to achieve that success in the Senate.

• In 2001, Vanessa Leggett, a Houston-based author writing a book about a local murder, spent 168 days in jail because she would not identify sources or give her notes to law enforcement.
• In 2005, New York Times reporter Judith Miller was sentenced to jail because she refused to reveal who told her that Valerie Plame was an undercover CIA agent – even though she never published this fact. She served 85 days.
• Freelance videographer Josh Wolf spent 226 days in jail because he refused to provide video he had recorded while covering an anarchist protest in San Francisco in July 2005 to law enforcement.
• USA TODAY reporter Toni Locy was one of 13 journalists subpoenaed in 2008 during the investigation of Stephen Hatfill as a “person of interest” in several instances of the deadly poison anthrax being mailed to government offices. She was held in contempt of court by a federal judge and ordered to pay $500 per day for the first seven days in which she refused to comply, $1,000 per day for the next seven days, and $5,000 a day for the next seven days after that – all from her own pocket, not her employer’s. The contempt charge was later thrown out.

Where, when and to whom does reporter's privilege apply?

There are a variety of protections in the 49 states and D.C. where the reporter’s privilege clearly exists. The protection may vary in several ways, the most important of which are:

• Is the privilege “absolute” or “qualified”? Some states have an absolute privilege that applies anytime someone meets the definition of a journalist. Others have a qualified privilege that applies unless the person seeking the information can prove: (1) it is relevant to the commission of a criminal act or clear violation of law, (2) the information is essential to the outcome of the case, and (3) all other sources for that information have been exhausted.
• Who meets the definition of a “journalist”? Different jurisdictions define who can use reporter’s privilege in different ways. Some take a more “status-based” approach, looking at who the reporter works for, usually requiring that the reporter work full time – or at least regularly – or have a formal contract to produce freelance work for a newspaper, television station, radio station, magazine, book publisher or regularly published website. This excludes self-employed bloggers – often by design to prevent someone from hiding behind the reporter’s privilege by simply writing a blog and claiming to be a journalist. Others take a more “functional” approach, asking whether the reporter was engaged in gathering information with the intent to publish it to the public.
• What does the privilege cover? Some jurisdictions only protect the reporter from having to identify a confidential source, while others also protect against the requirement to produce documents from that source. Similarly, some protect a reporter only from producing and testifying about unpublished materials like notes or recordings while others allow a reporter to refuse to talk about already-published content.

Why is reporter’s privilege important?

The reporter’s privilege serves three important purposes.

First, it has been integral to the reporting of several major news stories that have revealed corruption and wrongdoing at all levels of government.

Mention “Watergate” and one instantly thinks of reporting by Bob Woodward and Carl Bernstein of The Washington Post that led to the resignation of President Richard M. Nixon – the only time an American president has resigned from office. Their reporting would not have occurred without the most famous confidential source ever: “Deep Throat,” later revealed to be FBI Deputy Director Mark Felt.

Reporter’s privilege has been crucial to the press holding government accountable at all levels. For instance:

• A reporter from the Dallas Times Herald relied on confidential sources in 1974 to uncover rampant corruption in the Dallas County Sheriff’s bail bond system.
• In 1992, a jury convicted the county executive of Albany County, New York, of six felony counts for receiving kickbacks and payoffs after stories published by an Albany Times Union reporter who learned about this from a confidential source.
• A recording obtained by Providence, Rhode Island, television reporter James Taricani in 2004 from a confidential source documented city hall employees receiving bribes and kickbacks in exchange for directing government contracts to certain businesses.
• The trustees of a hospital board resigned, and the hospital was fined $1 million for abusing the hospital’s tax-exempt status after the Houston Chronicle, through a confidential source, learned about their misconduct in 2004.
• In 2005, reporting by The Washington Post and others using confidential sources revealed the existence of secret U.S. prisons overseas where foreigners were kept and tortured in violation of U.S. and international law.
• In 2007, reporters from The Washington Post documented the often unsafe and unhealthy conditions at Walter Reed Army Medical Center endured by soldiers who were recovering from injuries sustained in Afghanistan and Iraq. While some soldiers who spoke to the reporters agreed to have their names shared publicly, others asked to be confidential.

Second, the reporter’s privilege is integral to journalists’ independence. It ensures that journalists remain free from government control. It also ensures that the public sees that journalists are independent, which protects their credibility and encourages sources to speak freely with them.

Third, the reporter’s privilege ensures that journalists can do their jobs. Every day spent testifying in court is a day that a reporter is not gathering and publishing news that informs the public.

How reporter's privilege protects all of our First Amendment rights

The reporter’s privilege protects not only journalists but also the public. While there is a reporter’s privilege in virtually every state, the lack of clear First Amendment protection and the lack of a federal reporter’s privilege or shield law puts reporters – and the public – at risk.

If a reporter is subpoenaed to testify or provide information in federal court, they can’t protect the confidentiality of their source. A reporter often has no idea when making a promise to a source whether their reporting will be important to a court case, especially one in federal court. This threat to the free flow of information from source to reporter to public jeopardizes us all. Without reporter’s privilege, people with important information about potential wrongdoing may be too scared to come forward, and without that reporting it’s harder for the public to know what’s happening, to hold the powerful to account and to make informed decisions.

Kevin Goldberg is First Amendment specialist for the Freedom Forum. He can be reached at [email protected].