by Gionna Kinchen
A shield law is defined by Britannica as “any law that protects journalists against the compelled disclosure of confidential information, including the identities of their sources, or the forced surrender of unpublished written material collected during news gathering, such as notes.” Shield laws exist in 41 of the 50 states in America, but the specific protections provided vary greatly state by state. One of the largest areas of variability in these laws lies in the eligibility of individuals to receive shield law protections. These discrepancies call into question: what defines a journalist?
The state of New Jersey’s shield law is considered by many to cover a large range of different types of journalists, including traditional and non-traditional. The law provides absolute protection in civil cases and a qualified privilege at the court’s discretion in criminal cases for any “person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated,” according to N.J. Stat. §§ 2A:84A-21 to 21.8. This means that not only writers, but also producers, editors, reporters, broadcasters and the like are all protected. It is not a requirement that one is a paid employee of a news source to be protected, according to the Digital Media Law Project. However, the law requires one to be “connected with” the news media, which, according to the law, includes “newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public.” Therefore, to be protected one does not have to be employed or associated with a mainstream news source; anyone who reports news through any of the means listed above is protected. According to the Digital Media Law Project, this includes “periodicals online, Web radio, regular podcasts … [and] blogs.”
California’s shield law is an example of one that provides fewer protections for non-traditional journalists. California’s shield law states that any “publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed … [in addition to any] radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed” is protected under shield law. Although the law itself does not mention online journalism, O’Grady v. Superior Court (2006) established that the California shield law applies to people that gather or report news “for dissemination to the public, regardless of whether the publication medium is print or online,” according to the Digital Media Law Project. The case stated that California shield law protects “open and deliberate publication on a news-oriented Web site of news gathered by that site’s operators,” but does not necessarily protect “the deposit of information, opinion, or fabrication by a casual visitor to an open forum such as a newsgroup, chatroom, bulletin board service, or discussion group.” The case also determined that, unlike New Jersey’s shield law, California’s shield law does not protect blogs, due to the “rapidly evolving and currently amorphous meaning” of the word “blog.”
Unlike in the state of New Jersey, Californian journalists, as well as journalists in 34 other states, are given a court-recognized privilege in addition to shield law protection. Therefore, while an individual is not eligible for protections under California’s shield law, they may still be eligible to receive some protection based on the First Amendment of the United States Constitution. When applying the qualified privilege, Californian courts will use a balancing test that consists of the following questions: “(1) whether the reporter is a party to the litigation; (2) the importance of the information to the case; (3) whether other sources for the information are available; (4) the importance of protecting confidentiality; and (5) the strength of the case of the party seeking disclosure,” according to the Digital Media Law Project.
The state of Florida is another example of a state with a shield law as well as court-recognized privilege for journalists, however protections under both are narrowly tailored. In Florida, for one to qualify for shield law protections and qualified privilege, one must be a “professional journalist,” meaning “a person regularly engaged in collecting, photographing, recording, writing, editing, reporting, or publishing news, for gain or livelihood, who obtained the information sought while working as a salaried employee of, or independent contractor for, a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine,” according to Fla. Stat. § 90.5015. Florida’s shield law excludes many of the non-traditional journalists covered in New Jersey and California, including amateur journalists and bloggers, or anyone who does not receive monetary compensation for their work. In addition, the wording of the law makes it unlikely that any journalists employed by an online publication would be covered, according to the Digital Media Law Project.
In Massachusetts, there is no shield law. However, journalists may be protected under Massachusetts Common Law. Since Common Law is made by the judge, it operates on a case-by-case basis and has no official guidelines, and therefore may be subject to inconsistencies and ambiguities, according to the Digital Media Law Project. In the case Summit Technology, Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992), it was decided by a federal court interpreting Massachusetts law that “an investment analyst who wrote a report for his job was covered by the common law privilege for reporters even though he was not a part of the ‘organized press,’” according to the Digital Media Law Project. However, this decision is not legally binding in Massachusetts courts, and therefore may or may not influence the way Massachusetts rules on future cases of this nature. Massachusetts does however recognize a qualified reporter’s privilege, much like Florida and California.
shield laws have been shown to have an extremely large degree of variability depending on the state. While states like New Jersey and California have extremely broad views of who is qualified for shield law Protections, other states like Florida have extremely restrictive shield law eligibility requirements, and a handful of states, like Massachusetts, have no shield law at all and provide nearly no protection for journalists. Many journalists have pushed for a federal shield law to combat these discrepancies, but at this point in time, no federal shield law exists.
“California Protections for Sources and Source Material | Digital Media Law Project.” Digital Media Law Project, Digital Media Law Project, www.dmlp.org/legal-guide/california-protections-sources-and-source-material.
“California Shield Law.” Bill Text – SB-558 Reporters’ Shield Law., Bill Text, leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201320140SB558.
“California Shield Law.” FIRST AMENDMENT COALITION, FIRST AMENDMENT COALITION, firstamendmentcoalition.org/california-shield-law/.
COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT. JASON O’GRADY Et Al., Petitioners, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; APPLE COMPUTER, INC., Real Party in Interest. Digital Media Law Project, 26 May 2006.
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“2013 New Jersey Revised Statutes :: Title 2A – ADMINISTRATION OF CIVIL AND CRIMINAL JUSTICE :: Section 2A:84A-21 – Newspaperman’s Privilege.” Justia Law, Justia Law, 2019, law.justia.com/codes/new-jersey/2013/title-2a/section-2a-84a-21/.
“Reporters’ Privilege Compendium: California Shield Laws Guide – RCFP.” The Reporters Committee for Freedom of the Press, The Reporters Committee for Freedom of the Press, www.rcfp.org/privilege-compendium/california/.
“Shield Laws in the United States.” Wikipedia, Wikimedia Foundation, 5 Feb. 2020, en.wikipedia.org/wiki/Shield_laws_in_the_United_States#State_laws.
“Summit Technology, Inc. v. Healthcare Capital Group, Inc.” Legal Research Tools from Casetext, Casetext, 19 Mar. 1992, casetext.com/case/summit-technology-inc-v-healthcare-capital-group-inc.
“The 2019 Florida Statutes.” Online Sunshine: Official Internet Site of The Florida Legislature, The Florida Legislature, 9 Apr. 2020, www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0090/Sections/0090.5015.html.
The Editors of Encyclopaedia Britannica. “Shield Law.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., 28 Nov. 2016, www.britannica.com/topic/shield-law.
United States District Court, D. Massachusetts. “Summit Technology, Inc. v. Healthcare Capital Group, Inc.” Legal Research Tools from Casetext, Casetext, 19 Mar. 1992, casetext.com/case/summit-technology-inc-v-healthcare-capital-group-inc.