Shield Laws

Shield laws are statutes designed to help journalists keep their sources confidential and to protect journalists from unnecessary subpoenas. Journalists cite several reasons why shield laws are needed. First, journalists assert that if they are unable to guarantee anonymity to sources, then individuals will be less likely to share confidential and sensitive information. This hinders the process of investigative journalism that can be beneficial to the public. Second, journalists assert that if the government requests both confidential and nonconfidential information, then journalists actually become investigators for the government. This scenario also forces journalists to waste resources in court proceedings. Third, journalists assert that shield [Page 745]laws protect them from frequent subpoenas from litigation surrounding the content of their work.

The U.S. Supreme Court, in Branzburg v. Hayes (1972), ruled that news gathering was protected by the First Amendment. The court did not define the extent of the protection that the Branzburg case yielded for journalists. However, the Supreme Court did rule that journalists did not possess constitutional immunity from the law. After the Branzburg ruling, both case law and state statutes have defined when it is legally appropriate to seek confidential information from journalists, and includes (a) when the information is highly relevant to the case, (b) when a compelling need exists, (c) when the information cannot be obtained through other means, and (d) whether the information was gained through a confidential source or through observation. Some state shield laws apply to both civil cases and criminal cases, whereas others apply only to civil cases. This varies from state to state.

In the United States, 30 states and the District of Columbia have shield laws that protect journalists' right to keep sources private. Those states include Alabama, Alaska, Arizona, Arkansas, California, Colorado, Delaware, Florida, Georgia, Illinois, Indiana, Kentucky, Louisiana, Maryland, Michigan, Minnesota, Montana, Nebraska, Nevada, New Jersey, New Mexico, New York, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island, South Carolina, and Tennessee. The first shield law was adopted in Maryland in 1896.

In addition to the shield laws, all states have a constitution that guarantees free speech not only for journalists but also for every citizen. Although shield laws exist in many states, there is no federal statute protecting journalists. There have been unsuccessful attempts by the U.S. Congress to pass legislation that would provide journalists federal shield law protection. Occasionally, issues highlight the need for a federal shield law. The case involving Central Intelligence Agency (CIA) agent Valerie Plame initiated a debate among journalists and politicians regarding the need for a federal shield law. Plame's identity as a CIA agent was revealed to journalists through confidential sources and the Department of Justice subpoenaed journalists to determine who leaked her identity. Judith Miller, a New York Times reporter, served jail time for refusing to reveal the identity of her source.