Journalists devote untold hours and resources to reporting the news. They develop meaningful relationships with sources from all walks of life, from top-ranking government officials to low-level whistleblowers. They chase leads all around the world. They comb libraries and databases. They immerse themselves in the subjects they are covering. And then often, after having done all of this painstaking work, the government or a private litigant comes to them wanting that work for themselves in order to bolster their position in a case or investigation. They want to know who the journalist has communicated with, where the journalist has been digging, copies of documents the journalist has uncovered ...
But these efforts to take advantage of journalists’ work have a cost, and not just to the journalist or their news organization. When journalists are compelled to reveal their confidential sources, it scares other potential whistleblowers, causing journalists’ sources to dry up. This, in turn, severely hampers journalists’ ability to report the truth; to expose waste, corruption and crime; and to hold power to account. And threats to a free press do not stem only from requests for confidential information. Efforts to compel journalists to turn over their unpublished newsgathering material, even when it is not confidential, takes them away from their work of reporting for the public. And as courts have explained, it risks “the symbolic harm of making journalists appear to be an investigative arm of the judicial system, the government, or private parties” rather than independent seekers of the truth.
So what protections are in place to protect journalists from having to reveal their confidential sources and work product in response to a subpoena? What can journalists do to mitigate the chances that their sources and work product are exposed? And what are the consequences to journalists, and their sources, to revealing — or not revealing — confidential source identities?
Whether you will be compelled to reveal your confidential sources depends in part on who issues the subpoena. If the subpoena is issued by a part of the federal government (like a federal prosecutor), or in the context of a federal lawsuit (like many civil rights cases), then you may have some protection under the Constitutional Reporter’s Privilege. If the subpoena is issued by a state government, or in the context of a state lawsuit (like, for example, a wrongful death case), then you may, depending on the state, have some additional protection under the state’s shield law.
There is no federal shield law. Members of Congress have tried repeatedly to pass one, most recently the PRESS Act in 2023-24, which passed in the House, but failed in the Senate. Senator Tom Cotton (R-Arkansas) blocked the bill, arguing that “[p]assage of this bill would turn the United States Senate into the active accomplice of deep-state leakers, traitors and criminals, along with the America-hating and fame-hungry journalists who help them out.”
Without a federal shield law, journalists subpoenaed in federal cases must rely on the Constitutional privilege, a qualified privilege developed by the courts. Under this privilege, a subpoena asking a journalist to reveal their confidential sources is valid only where the subpoenaing party can show that source identity is certainly relevant to the case, goes to the “heart” of the issue before the court, and is not available from alternative sources. While this privilege has protected confidential sources in ordinary civil cases, it tends to be less successful when the underlying case is specifically about the leaking of classified or other restricted information to the press. Further complicating matters, some federal circuits look more fondly on the existence and application of the privilege than others, and the privilege typically does not apply to grand jury subpoenas at all.
The picture is a little rosier for journalists subpoenaed in state proceedings. Many states have shield laws that provide journalists with more robust protections. Indeed, several states, including New York, California and the District of Columbia, provide absolute protection against subpoenas for confidential sources, meaning that courts cannot compel journalists to reveal their sources, at least where the journalist is not a party to the lawsuit. But, of course, when reporting a story and making promises of confidentiality, one does not often know whether a subpoena down the road is likely to come in a state case or a federal one.
Sometimes what parties to civil and criminal cases want is not the identity of a confidential source, but instead the materials a journalist compiled and created in the course of reporting: outtakes from interviews, notes from conversations with sources, photographs taken at the scene of a crime, and the like. These materials are protected by the same Constitutional privilege that applies to confidential sources. But because courts generally do not consider protection of non-confidential materials as important as protection of confidential sources, they are often looser with the application of the privilege. In fact, some federal courts — specifically the Fourth, Sixth and Seventh Circuits (covering portions of the mid-Atlantic and Midwest) — have essentially held that there is no privilege for journalists’ non-confidential newsgathering materials at all.
Again, circumstances are a little better under most state shield laws, although, there, too, the protection is weaker than for confidential sources. Few state shield laws provide absolute protection for non-confidential materials.
All told, with respect to both confidential sources and non-confidential information, the law of the reporter’s privilege is a mess.
Subpoenas to reporters or their news organizations are not the only way that the government may try to obtain information about what journalists have been up to. Sometimes, subpoenas will issue to communications providers — like telephone companies and email services — for information about who journalists communicate with. In addition, despite a federal law saying that police are generally not permitted to execute search warrants for journalists’ material, they sometimes do it anyway. Unlike with subpoenas, which journalists may challenge in court before they must comply, there is often little that journalists can do about search warrants or subpoenas to service providers until the information is already in the hands of the government.
The consequences of both compliance and non-compliance with a court order requiring journalists to divulge information can be harsh. Compliance with an order to reveal confidential sources could cause severe repercussions for your source, including possible prosecution if they have obtained the information provided to you illegally. Refusal to comply with a court order, though, could cause severe repercussions for you, including ruinous fines or even jail time.
So, apart from lobbying for a strong federal shield law and robust state protections, what can journalists do to help protect themselves and their sources? Some tips:
Legal protections may be inconsistent, but your newsgathering should not be. Preparedness — through understanding the law, carefully considering promises of confidentiality and exercising rigorous digital hygiene — is the best way to navigate a legal landscape that can be as unpredictable as the news itself.
Questions? Reach out to Sinead Murphy, managing director, MiC Specialty, at sinead@micspecialty.com.
