Shield laws generally allow journalists to refuse to testify in court proceedings to protect confidential sources or information gained in confidence. Shield laws vary widely: Some provide absolute protection for withholding sources or confidential information; others provide a qualified privilege that may be overcome with a showing of need. Shield laws are applied differently in civil and criminal cases.
Maryland enacted the first state shield law in 1896. Now, thirty-one states have such laws, and a majority of states recognize a reporter’s privilege, either in their constitutions or common law.
No federal shield law exists, and the U.S. Supreme Court has not recognized a reporter’s privilege stemming from the First Amendment. In Branzburg v. Hayes, a five-to-four majority ruled against the reporters in three cases decided together. However, parts of Justice Lewis Powell’s concurring opinion were consistent with the minority view. That led appellate courts to recognize a constitutional protection of reporter’s privilege.
By and large, federal courts have allowed for at least limited First Amendment protections. However, some U.S. Circuit Courts of Appeals have not. In 2001 and 2002, a freelance writer in Houston was jailed for 168 days on contempt charges after she refused to reveal material from an interview with a murder suspect. In 2005, New York Times reporter Judith Miller spent eighty-five days in jail for refusing to divulge the source of information related to the leaking of the name of an undercover CIA agent. For legal and political reasons, the case generated much publicity, even though Miller never published a news article.
GILBERT D. MARTINEZ
References and Further Reading
Cases and Statutes Cited