Toothless: The Ineffective Scope of Proposed Federal Shield Laws

Steven Uhrich The First Amendment Professor Beschle Fall 2010



In July of 2005 a young freelance journalist and blogger named Josh Wolf videotaped a rally taking place in San Francisco to protest a “Group of Eight” meeting, and afterwards posted portions of his captured video on his own website.1 According to investigators, a protester had placed a smoke bomb or firework underneath a police vehicle and federal prosecutors suspected that the unreleased footage retained by Wolf likely evidenced the alleged perpetrator of attempted arson.2 A grand jury investigating the burning of the police vehicle issued a subpoena to testify and to produce evidence to Wolf, asking him to hand over his unedited video footage; he refused, and the Ninth Circuit District Court held Wolf in contempt.3 Wolf appealed, citing his First and Fifth Amendment rights, and the Ninth Circuit Appellate Court upheld the contempt ruling relying in large part upon Branzburg.4 Despite offering to allow the judge to review the unedited footage in camera, Wolf was sentenced to coercive custody in a federal detention facility where he served for 226 days; longer than any other journalist in U.S. history on a contempt charge.5 Activists and policy wonks on both sides of the debate over a reporter’s privilege took to the echo-chamber to either denigrate Wolf as a derelict defying the judicial process or commend his stand against being used by law enforcement in their “witch hunt” of dissidents.6 In addition, and less expectedly, this series of events raised the issue of whether an individual who is unaffiliated with a traditional news reporting institution should be considered a journalist for purposes 1

of the longstanding debate over a reporter’s privilege, and how each side of the debate would integrate recent changes in the media landscape to their favor.7 This paper will examine how the two most recent iterations of a proposed federal reporter’s privilege, the 2009 Free Flow of Information Act (FFOIA) as passed by the House and the Senate Judiciary Committee, fails to incorporate the complex ways the media landscape has been altered by technology over the last two decades.8 Part II will offer a brief history of shield laws, analyze the staple reporter’s privilege case of Branzburg v. Hayes, and detail how state courts and legislatures have implemented a reporter’s privilege in the years since; Part III will review the language of the current proposals and consider how they would apply to recent cases where journalists have been held in contempt; and Part IV will propose that the language of the bills should be altered to account for recent technological changes in the media landscape and to support the well developed legal notion that a reporter’s privilege should issue from principle rather than policy considerations. II. Background A. Branzburg and the Subsequent Fallout in Federal Courts Regarding Reporter’s Privilege In the only Supreme Court case to address the First Amendment analysis of a reporter’s privilege, Branzburg v. Hayes, the Court’s indefinite decision refused to recognize such a privilege under the First Amendment’s press clause; the refusal was narrowly tailored to apply only in situations where reporters are called to testify before a grand jury proceeding.9 This decision, issued in 1972, noted that at the time of the case only 17 states had implemented a reporter’s privilege and 2

maintained that the record did not support finding a reporter’s privilege to be within the scope of First Amendment protections of expression  or at the very least that any connection between the press’s need for access to sources and their expressive rights was too tenuous to implicate the protections warranted to direct expression.10 Justices Stewart, Brennan, and Marshall emphasized this point in their dissent, arguing that while the absence of such a privilege would not operate as a direct restriction on expression, there was ample evidence of a direct connection between the subjugation of reporters by forcing them to expose their sources and the chill on their ability to gather news effectively.11 This was the first time the Supreme Court was given a clear opportunity to give meaning to the press clause, but the court instead chose to frame the ruling in terms that make it seem the Court was forced to decide whether newsmen are entitled to a “special immunity.”12 The ruling, which is considered by some scholars to be best described as a “4.5 to 4.5” holding,13 applied the history of the First Amendment to a reporter’s privilege by analyzing that historically, the Amendment does not disallow all burdening of the press that occurs through the enforcement of criminal statutes.14 The court stated that “[u]nder prior cases, otherwise valid laws serving substantial public interests may be enforced against the press as against others, despite the possible burden that may be imposed,” and continued to analogize several cases where criminal statutes imposed burdens on press freedoms.15


Regardless of the analytical challenges presented by this split decision and arguments that its holding is ambivalent with respect to wider applications of the press clause, there is generally consensus on two critical factors. First, the holding is generally interpreted that as long as an investigation is undertaken in good faith and not intentionally to stifle a reporter’s relationship with her sources, the First Amendment does not inherently grant reporters the discretion to withhold relevant information or materials from a state or federal grand jury. Second, in considering how the federal legislature may react in the future to the implementation of a federal reporter’s privilege, the Court clearly stipulated that congress may supplant their ruling with later legislation: At the federal level, Congress has freedom to determine whether a statutory newsman's privilege is necessary and desirable and to fashion standards and rules as narrow or broad as deemed necessary to deal with the evil discerned and, equally important, to refashion those rules as experience from time to time may dictate. There is also merit in leaving state legislatures free, within First Amendment limits, to fashion their own standards in light of the conditions and problems with respect to the relations between law enforcement officials and press in their own areas.16 In the years since Branzburg, lower federal courts have interpreted its ruling to recognize a reporter’s privilege in diverse ways that hold sometimes surprising standards: some courts have drawn requirements on whether the information sought under a subpoena is given to the reporter in confidence,17 and some have restricted the privilege to civil proceedings.18 Most apropos to the analysis of statutory developments considered here, other courts have limited a reporter’s privilege to individuals who are employed by 4

traditional news outlets and can be categorized as “professional journalists”.19 Justice White famously warned in Branzburg that “[s]ooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.”20 At issue in section III of this paper is the methods legislators use to determine who qualifies as a journalist, and the roads already paved by lower courts are sure to have considerable influence on this decision. B. State Legislation in Pursuit of a Reporter’s Privilege: Shield Laws In the years since Branzburg, a majority of state legislatures have passed legislation that establishes some kind of reporter’s privilege. As of this writing, a total of 49 states have recognized a reporter’s privilege and 38 states and the District of Columbia have enacted Shield Law statues that offer additional and qualified protections for journalists.21 Respective state courts are awash in obfuscating and inconsistent interpretations that make navigating the mire of state court shield laws a serious undertaking. The Reporter’s Committee for Freedom of the Press, a non-profit public interest organization, has cataloged these protections for the benefit of any would-be journalist who is unsure of the shield law or common law privilege they would be afforded within their state.22 Reviewing how state legislatures draft these state shield laws and how state courts apply them elucidates how federal courts may interpret the proposed FFOIA.


In an excellent note, Caroline Pieroni has investigated the swamp of state shield laws and reporter’s privileges and cataloged how these approaches differ in almost every conceivable way.23 Pieroni concluded that “[t]here are as many state shield laws as there are states.”24 In her analysis, Pieroni notes that one of the most inconsistent attributes of these state statutes is their definition of who or what constitutes journalism for purposes of the shield: some confer privilege only to certain forms of media like broadcast television, print, and radio; some to individuals based on their active or professional capacity as a reporter; and others still who look to the nature of the act performed rather than an individual’s professional capacity or the media in which the information is presented.25 Even in cases where the language of the statutes contain but small differences, the specter of judicial application further complicates matters. Pieroni conflates California’s protections with Alabama’s, but fails to recognize that the language of both statutes provides protections for individuals connected with a newspaper, radio broadcasting or television station: the only difference in the language regarding the definition of a journalist is California’s inclusion of those connected with any “other periodical publication.”26 Given only this slight difference in statutory language, it would be difficult to predict that Federal courts would refuse to extend the protection to a magazine reporter under the Alabama statute,27 while California courts would extend the protections even to online journalists and bloggers.28 Given the varying degree of judicial interpretations of largely similar statutes, it follows that the language of the proposed federal shield law must be 6

read extremely carefully to elicit any meaningful prediction of how the statute might be applied by federal courts. III. The Language of the Two Free Flow of Information Acts and their Likely Application A. The Language of the Bills 1. The House Bill After being introduced in 2007 and failing to receive a full vote, the Free Flow of Information Act was again introduced in February of 2009 and overwhelmingly passed in the House of Representatives in March of 2009.29 The bill would offer protections unless a court can show by a preponderance of the evidence that (1) the party seeking testimony has exhausted all other resources; (2) that the information sought is related to a criminal investigation where there are reasonable grounds that the information is critical and there are reasonable grounds to believe a crime has occurred, or that in any civil matter the information is critical to the successful completion of the matter; that (3) where the information could disclose the identity of a confidential source, the disclosure is necessary to prevent or identify the perpetrator of an act of terrorism or prevent imminent death or significant bodily harm, to identify a person who has disclosed a trade secret, individually identifiable health information, public information, or whoever disclosed classified information that caused or will cause harm to national security; and (4) the public interest in disclosure outweighs the public interest in gathering or disseminating news or information.30 In addition, the bill includes an exception that would remove protection where the reporter themselves is suspected of a crime.31 7

These exceptions would ostensibly allow a government to compel disclosure in a multitude of cases even without the further onerous restrictions the bill creates with its limited definition of those within its offered protections. The bill would cover person who “regularly gathers, prepares . . . or publishes news or information that concerns matters of public interest for dissemination to the public for a substantial portion of the person’s livelihood or for substantial financial gain” (emphasis added).32 This definition would surely restrict a vast amount of individuals who perform acts of journalism but are not doing so solely for financial gain. The number of “citizen journalists” who actively gather information with the intent to disseminate it to the public has been increasing since the proliferation of blogging and the subsequent adoption of technologies that allow larger affiliates, like CNN and MSNBC, to solicit individuals to upload video or audio to their websites in a participatory model.33 This raises a question of intent on the part of the legislature over the values underlying this choice: does the House believe that any chilling effect in regard to non-professional journalists is negligible, or is it merely an attempt to prevent bloggers from allegedly utilizing the privilege to shield illegal conduct as some critics have warned against? In either case, the fact remains that with the restrictions provided by the government’s interest and the bill’s definition of those covered, this House bill would afford a heavily qualified protection for all but a tiny fraction of professional journalists who find themselves on the sour end of a subpoena.


2. The Bill Passed by the Senate Judiciary Committee The version of the Free Flow of Information act heard in the Senate Judiciary Committee was introduced jointly with the House version in February of 2009.34 In similar fashion to the House bill, this version would offer protections to a journalist with the exceptions where the party seeking disclosure can show that it is an ongoing criminal investigation where there is no other source for the information.35 However, the Senate bill inverts the burden of proof to the party seeking to invoke the privilege where the court is asked to balance the public interest of disclosure against the public interest of avoiding a chilling effect on the free flow of information.36 In this manner, the bill is more restrictive through its qualified application in a criminal setting; instead of a reviewing court balancing the public interest in the matter, the party seeking the privilege of the bill would be given the burden of proof to show that their interest in the free flow of information is paramount. This showing is never easy when compared with that of the government, where their interest is usually immediate when compared with the more abstract and nebulous danger of a chilling effect.37 In civil matters, this version is nearly identical with the House version’s requirements that the information be essential to resolution of the matter and subject to a public interest balancing test and this version also contains exceptions for the prevention of death, serious bodily injury, and terrorism.38 The largest difference between the two bills rests in its scope of coverage, with the Senate version extending protection to a wider array of individuals who do


not have a professional role as a newsgatherer: the Senate arrived at language that would protect individuals who, “with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national, or international events or other matters of public interest, regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters” (emphasis added).39 Here, the operative word “regularly” is the clear restrictor of individuals who do not normally contribute to the reporting process. While this may seem like a simple line to be drawn to distinguish between a bona fide reporter and a layman, it would still restrict any individual who might spontaneously videotape an unfolding calamitous event with their cell phone with the full intent to upload this same video to CNN’s iReport. It appears that while the Senate’s version of the bill is more lenient with its definitional scope of a journalist, it is inversely restrictive concerning the qualifications allowed for the government to overcome the privilege in a criminal investigation. Conversely, the House bill restricts the scope of the individuals covered but would grant courts more leeway to conduct a balancing of the public interest at hand; from the point of view of any reporter without an evidenced dedication to the craft (with or without professional accolades) both of these bills would likely leave them without protections. B. Applying the Proposed Laws to Prior Cases of Contempt In 2005, the ousting of the undercover Central Intelligence Agency (CIA) agent Valerie Plame led special prosecutor Patrick Fitzgerald to subpoena New York Times reporter Judith Miller and Time Magazine reporter Matthew Cooper in 10

a federal grand jury investigation into the government leak.40 Both Miller and Cooper refused to comply with the subpoenas and failed in their attempts to quash them, and both served time in prison while waiting for their source, Lewis “Scooter” Libby, to waive confidentiality. The Appeals court for the D.C. Circuit held that Branzburg uniformly denied either reporter a privilege, which numerous scholars have noted is inconsistent with its “4.5” majority opinion.41 If enacted, it is clear that Miller and Cooper would likely have fallen outside the initial qualifications of either the Senate or House bill. Their employment by major news institutions would doubtless qualify them under the definition of a journalist, but it is likely that the government would be able to show the type of necessity that would easily override the public interest of the free flow of information. In this case the information was unavailable anywhere else,42 the prosecutors had reasonable grounds to believe a crime had been committed,43 and the subpoena sought information essential to a successful investigation.44 Therefore whether the government would be obligated to weigh public interests or whether it would be a burden for either of the reporters to meet, the outcome in either of these cases would have been the same had either the Senate or House version of the FFOIA had been enacted: both reporters would have been held in contempt and jailed. In a case like this large press institutions rallied around individual reporters and the call to arms was made to public interest law firms and interest groups to begin preparing amicus briefs; this makes it ironic that these same public interest groups and media institutions are hollering for the 11

implementation of an act that would not have changed the outcome in this hotly contested case. Similarly, Josh Wolf likely would not have been found within the protections of either incantation of the FFOIA for two reasons: first, the same set of excepting qualifications would likely be met by the government in that case;45 and second, it is likely that given either the Senate’s more encompassing definition of a journalist or the more narrow scope drafted by the House that Wolf would fall outside this umbrella of protection. There is little doubt that Wolf would be excluded under the House bill, since its language clearly requires that the journalist seek at minimum a substantial income from their newsgathering activity.46 Wolf was a full-time student and not videotaping the protest while on assignment for any news media, which the Ninth Circuit specifically mentioned in its analysis.47 Wolf would additionally have trouble arguing that he fit the Senate bill’s definition which requires that one “regularly” newsgathers with the intent to disseminate the information; the only evidence Wolf could have pointed to at this point in his career was a relatively young blog where he posted his opinions alongside some “hard news.”48 In fact, even on his website he classified himself as an “artist, an activist, an anarchist and an archivist,”49 making it very unlikely that federal ourts would find this meets the “regularly” requirement of the Senate bill. These hypotheticals clearly demonstrate that either version of the bill would leave a large number of individuals who engage in acts of journalism out in the cold, and that the current


method for determining the scope of any application of privilege needs to be rethought if Congress is serious about establishing such a protection. IV. Policy, Principle, and a New Proposal A. Policy and Principle in Support of Broader Coverage In an excellent article, The New Abridged Reporter’s Privilege: Policies, Principles, and Pathological Perspectives, professor Erik Ugland lays out an incredibly thorough review of the differing underlying rationale used to support implementing a reporter’s privilege.50 His basic premise is that while most scholars and policy groups argue that a reporter’s privilege is required due to an instrumental policy concerns, there remains an underutilized argument that legal principle based in the Press clause of the Constitution yields little wiggle room for judges to deny a privilege to reporters.51 Unfortunately, little headway has been made in the years since Branzburg that would give this proposition realistic feasibility; it appears that a robust federal statute is the best option for proponents of such a shield. Scott Gant, an attorney who practices constitutional law in D.C., wrote an extremely thorough account of how changes in the news media demand a fresh look at the scope of such a proposed privilege. 52 His book, We’re All Journalists Now, was published just as the first attempts were being made to pass the FFOIA in 2007. In it, Gant outlines how passing a shield law that is restrictive to only individuals with a professional affiliation to a newspaper or other news institution would create the type of untenable hierarchy that Justice White issued a canard


against when invoking the lonely pamphleteer.53 In addition, Gant argues the advent of cameras in cell-phones and the rise in individuals who volunteer to perform journalism in their free time to take on a particular local issue is increasing due to the modern ease of online publishing through a blog or similar outlet.54 Gant also echoes many of the typical arguments that can be found in scholarly works in support of a reporter’s privilege, such as Geoffrey Stone’s essay Why We Need A Federal Reporter’s Privilege: for example, that a shield law protects the dissemination of news on subjects that would otherwise go uncovered if sources felt that reporters were liable to become arms of law enforcement at any moment.55 In an appallingly thorough 2009 study on the prevalence and impact of media subpoenas, RonNell Andersen Jones concluded that such subpoenas do indeed have a substantial negative impact on newsgathering.56 The conclusion from this study compounded by the incredible way that investigative reporting has been defunded over the last decade makes a strong argument that a wider scope of privilege must issue from the FFOIA if it is to have any palatable positive effect.57 B. Potential Language to Effect a Larger Scope The current bill should be rewritten to allow any individual to invoke the privilege if he or she is committing an act of journalism. This would still require that the individual be collecting the information with the intent to disseminate it via some form of media, be it a television program, radio show, newspaper article or meager blog posting. Allowing the privilege to apply to anyone acting in this fashion is the only way to ensure that any spontaneous acts of journalism that


might uncover an extremely important local event concerning the public interest  like a small town mayor accepting a bribe in a hotel room, for example  would be included no matter who the individual is that brings it to the public’s attention. The language of the Senate version of the FFOIA could be altered to remove the word “regularly” from the section defining who is covered by the act. This would mean anyone who gathers information with the intent to disseminate it to the public, and confer a real protection to the scores of individuals who might find themselves in the position to break open a story that could benefit a community by exposing the truth. V. Conclusion RonNell Andersen Jones eloquently observed in this study that “[g]allons of ink have been spilled discussing the pros and cons of various forms of [a reporter’s] privilege.” And he is correct. The amount of scholarly works, news editorials and judicial opinions coming down on both sides of the debate is incredible, but it appears that over the last two decades there has never been such a ripe opportunity to make a lasting change: the FFOIA stands to give reporters more protection than they have ever enjoyed under U.S. jurisprudence. If it is heard by the Senate in the upcoming session, it could very well pass and alter how journalists are treated within the federal system. However, as described, it remains to be seen if any passed bill would exclude vast numbers of individuals for whom the same arguments in favor of protection would remain. Bloggers, soccer moms with video cameras, and anyone looking to


expose a story might find themselves on the wrong end of a subpoena with a contempt hearing and prison sentence close at hand. It is important that policy makers and legislators recognize that if a reporter’s privilege is about the information, and not the professional nature of the gatherer of that information, then it should rightly apply to any lonely pamphleteer who maintains a blog from which he makes no money at all.



Jesse McKinley, Blogger Jailed After Defying Court Orders, N.Y. TIMES,

Aug. 2, 2006, 14371db58c&ei=5088.

Id.; Josh Wolf Interview, FRONTLINE, Feb. 13, 2007, For Wolf’s own website where he has aggregated hyperlinks to numerous news articles, videos and other media, see his archived website available at

Wolf v. United States (In re Grand Jury Subpoena), 201 Fed. Appx. 430, 431


Id.; Branzburg v. Hayes, 408 U.S. 665 (1972). The appellate ruling in Wolf is

analyzed more thoroughly in Part II of this paper.

Tony Burman, Letter From the Editor in Chief, Jailed Journalist a symbol

of Internet Age, CBC NEWS, March 2, 2007, _1.html; Bob Egelko & Jim Herron Zamora, Imprisoned Freelance Journalist Released, SAN FRANCISCO CHRON., Apr. 3, 2007,
6 7

Burman, supra note 5. Howard Kurtz, Jailed Man is a Videographer and a Blogger but Is He a

Journalist?, WASH. PO., Mar. 8, 2007,

dyn/content/article/2007/03/07/AR2007030702454_pf.html. For a further update on how Wolf has again become embroiled in a controversy regarding the arrest of the no longer freelance reporter on student grounds where a protest was taking place, see Gerry Shih, The Curious Case of Journalist Josh Wolf, Round Two, N.Y. TIMES, Apr. 14, 2010,

Free Flow of Information Act of 2009, S. 448, 111th Congress (2009),

available at; Free Flow of Information Act of 2009, H.R. 985, 111th Congress (2009), available at

Branzburg, supra note 4 at 689-690. Id. at 689. “A number of States have provided newsmen a statutory


privilege of varying breadth, but the majority have not done so, and none has been provided by federal statute.” Id.

Id. at 735-36 (Stewart, J., dissenting). “Surely the analogous claim of

deterrence here is . . . securely grounded in evidence and common sense . . . although the Court calls the claim ‘speculative.’ The deterrence may not occur in every confidential relationship between a reporter and his source. But it will certainly occur in certain types of relationships involving sensitive and controversial matters. And such relationships are vital to the free flow of information.” Id.

Branzburg, supra note 4 at 682-83.



Erik Ugland, The New Abridged Reporter's Privilege: Policies, Principles,

and Pathological Perspectives, 71 OHIO ST. L.J. 1, 18 (2010).
14 15

Branzburg, supra note 4 at 682-83. Id. at 682-83. Id. at 706. See, e.g., Thayer v. Chiczewski, 257 F.R.D. 466, 468 (N.D. Ill., 2009)

16 17

(Holding that reporter’s privilege is waived if the communication made to the journalist was not made in confidence).

See, e.g., United States v. Smith, 135 F.3d 963 (5th Cir. 1998) (Rejecting

reporter’s privilege in criminal case but noting that several jurisdictions recognize such privilege in civil cases regardless of confidentiality of communications)

Shoen v. Shoen, 5 F. 3d. 1289, 1294-95 (9th Cir. 1993) (upholding reporter’s

privilege for author of book and finding that intent to disseminate information while collecting information is determinative of application of the privilege). Some courts use an alternate standard that is informed by the nebulous term “investigative reporting.” In re Madden, 151 F. 3d 125, 128-29 (3d Cir. 1998).

Branzburg, supra note 4 at 703-04. Ala. Code § 12-21-142 (Westlaw through 2010); Alaska Stat. §§ 09.25.300 to


.390 (Westlaw through 2010); Ariz. Rev. Stat. Ann. § 12-2237 (Westlaw through 2010); Ark. Code Ann. § 16-85- 510 (Westlaw through 2010); Cal. Evid. Code § 1070 (Westlaw through 2010); Colo. Rev. Stat. Ann. § 13- 90-119 (Westlaw through 2010); Conn. Gen. Stat. Ann. § 52-146t (Westlaw through 2010); Del. Code Ann. tit. 10, §§ 3

4320-4326 (Westlaw through 2010); D.C. Code Ann. § 16-4702 (Westlaw through 2010); Fla. Stat. Ann. § 90.5015 (Westlaw through 2010); Ga. Code Ann. § 24-9-30 (Westlaw through 2010); Haw. Rev. Stat. Ann. HRS D. 4, T. 33, Ch. 621 (Westlaw through 2010); 735 Ill. Comp. Stat. Ann. 5/8-901 to 5/8-909 (Westlaw through 2010); Ind. Code Ann. § 34-46-4-2 (Westlaw through 2010); K.S.A. § 60-240 to 60-245 (Westlaw through 2010); Ky. Rev. Stat. Ann. § 421.100 (Westlaw through 2010); La. Rev. Stat. Ann. § 45:1452 (Westlaw through 2010); Md. Code Ann., Cts. & Jud. Proc. § 9-112 (Westlaw through 2010); Mich. Comp. Laws Ann. § 767.5a (Westlaw through 2010); Minn. Stat. §§ 595.021 to .025 (Westlaw through 2010); Mont. Code Ann. §§ 26-1-901 to 1-903 (Westlaw through 2010); Neb. Rev. Stat. § 20-146 (Westlaw through 2010); Nev. Rev. Stat. Ann. § 49.275 (Westlaw through 2010); N.J. Stat. Ann. § 2A:84A-21 (Westlaw through 2010); N.M. Stat. Ann. § 38-6-7 (Westlaw through 2010); N.Y. Civ. Rights Law § 79-h (Westlaw through 2010); N.C. Gen. Stat. § 8-53.11 (Westlaw through 2010); N.D. Cent. Code § 31-01-06.2 (Westlaw through 2010); Ohio Rev. Code Ann. §§ 2739.04, 2739.12 (Westlaw through 2010); Okla. Stat. Ann. tit. 12, § 2506 (Westlaw through 2010); Or. Rev. Stat. § 44.520 (Westlaw through 2010); 42 Pa. Cons. Stat. Ann. § 5942 (Westlaw through 2010); R.I. Gen. Laws §§ 9-19.1-2 to 19.1-3 (Westlaw through 2010); S.C. Code Ann. § 19-11-100 (Westlaw through 2010); Tenn. Code Ann. § 24-1-208 (Westlaw through 2010); Utah R. Evid. 509; Wash. Rev. Code. Ann. § 5.68.010 (Westlaw through 2010); W.S.A. 885.14 (Westlaw through 2010). In the past two years, Kansas and Washington were the most recent states to pass a shield law. 4

Cristina Abello, Wisconsin Governor signs shield law for reporters, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, May 19, 2010,


last accessed Oct. 27, 2010,

Caroline Pieroni, Staying Out Of Jail . . . Sometimes: Maintaining A Free

Press Through Journalist Shield Laws Requires Changes Not Only At The Federal Level, But Also Among The States, 47 U. LOUISVILLE L. REV. 803 (2009).

Pieroni, supra note 23 at 811. Id. at 812. Alabama, Arkansas, Georgia, Montana, Ohio, Pennsylvania,


and Rhode Island are examples of states that focus on the medium; Nevada and D.C on the employment status of the individual; and Arizona, North Carolina and Michigan on the nature of the activity of gathering the information. Id.

Id. at 813; Ala. Code § 12-21-142 (Westlaw through 2010); Cal. Evid. Code

§ 1070 (Westlaw through 2010).

Price v. Time, Inc., 416 F. 3d 1327 (11th Cir. 2005). O’Grady v. Superior Court, 44 Cal. Rptr. 3d 72 (Cal. Ct. App. 2006). Free Flow of Information Act of 2009, H.R. 985, 111th Congress (2009),



available at; Ugland, supra note 13 at 55; The House Committee on the Judiciary Report outlined the purpose of the bill but does not address the purpose limiting the scope of the definition of a journalist. H.R. REP. 111-61, at 2 (2009). 5


H.R. 985, § 2 (a)-(d). H.R. 985, § 2 (e). H.R. 985, § 3. For an example of this model, see the latest implementation of iReport




from CNN, available at Hundreds of these participatory journalism sites have become viable as larger media consolidates and less money is available for local news coverage. Jason Stverak, The Pros and Pros of Citizen Journalism, THE ONLINE JOURNALISM REVIEW, March 12, 2010,; Dan Kennedy, From the Daily Me to the Daily We, Editorial, THE GUARDIAN, Sept. 18, 2007,

Free Flow of Information Act of 2009, S. 448, 111th Congress (2009),

available at

S. 448, § 2 (a). S. 448, § 2 (a)(2)(A)(iv). See Ugland, supra note 13 at 26-27 (explaining how the interests of



reporters are often more difficult to define and measure than the interests of the party seeking the subpoenaed information).

S. 448, §§ 2-6. S. 448 § 11 (2). Judith Miller Subpoena, 397 F.3d 964 (D.C. Cir. 2005);Kirsten B. Mitchell,



Judith Miller freed from jail after agreeing to testify, REPORTERS COMMITTEE FOR 6

FREEDOM OF THE PRESS, Sep. 30, 2005,; In re Special Counsel Investigation, Matt Cooper, 332 F. Supp. 2d 26 (D.D.C. 2004); Kirsten Murphy, Time reporter held in contempt of court, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Aug. 9, 2004,

Judith Miller Subpoena, supra note 40 at 971. Id. at 975. Id. Id. Wolf, supra note 3 at 432. H.R. 985, § 3. Wolf, supra note 3 at 433. Kurtz, supra note 7. Id. Ugland, supra note 13. Id. at 69-70. SCOTT GANT, WE'RE ALL JOURNALISTS NOW: THE TRANSFORMATION OF THE (2007).













Id. at 160-64; Branzburg, supra note 4 at 703-04. Gant, supra note 52 at 176-77.




Geoffrey R. Stone, Why We Need A Federal Reporter's Privilege, 34 Hofstra

L. Rev. 39, 40-41 (2005).

RonNell Andersen Jones, Media Subpoenas: Impact, Perception, And Legal

Protection In The Changing World Of American Journalism, 84 WASH. L. REV. 317 (2009).

The Future of Journalism: Hearing Before the Subcomm. on

Communications, Technology, and the Internet of the S. Comm. on Commerce, Science and Transportation, 111th Cong. (2009); JOHN NICHOLS AND ROBERT MCCHESNEY, THE DEATH AND LIFE OF AMERICAN JOURNALISM (2010).


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