There is no federal shield law (although a limited one has been passed by the House and awaits a Senate vote as of July 2008), and state shield laws vary in scope, as further discussed in this article. In general, however, a shield law aims to provide the classic protection of, "a reporter cannot be forced to reveal his or her source" law. Thus, a shield law provides a privilege to a reporter pursuant to which the reporter cannot be forced by subpoena or other court order to testify about information contained in a news story and/or the source of that information. Several shield laws additionally provide protection for the reporter even if the source and/or information is revealed during the dissemination of the news story, ie., whether or not the source or information is confidential. Depending on the jurisdiction, the privilege may be total or qualified, and it may also apply to other persons involved in the news-gathering and dissemination process as well, such as an editor or a publisher.
The issue of whether or not journalists can be subpoenaed and forced to reveal confidential information arose in 1972 with the United States Supreme Court case Branzburg v. Hayes. Paul Branzburg was a reporter for The Courier-Journal in Louisville, Kentucky and wrote an article about the drug hashish. In creating the article, he came in contact with two local citizens who had created and used the drug. Because their activity was illegal, Branzburg promised the two individuals that he would not reveal their identities. After the article was published, Branzburg was subpoenaed by a local grand jury and ordered to reveal the identity of his sources. Branzburg refused and cited the provisions for freedom of the press from the First Amendment of the Constitution, in his defense.
The case eventually reached the US Supreme Court, where the court decided in a five to four decision that the press did not have a Constitutional right of protection from revealing confidential information in court. The court acknowledged, however, that the government must "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest." While this ruling did not set a precedent for journalistic rights in court, it did define a more stringent set of requirements for when a journalist could be subpoenaed in court. This ruling was limited in nature, did not set a clear federal precedent regarding journalistic privileges from revealing confidential information, and thus has been interpreted and cited differently by courts over the years.
Currently, there are thirty-five states with shield law protections. (Hawaii passed a shield law in 2008.) There are four states with some protections for journalists and sixteen with no form of shield laws. Many of these laws vary from state to state. Some protections apply to civil but not to criminal proceedings. Other laws protect journalists from revealing confidential sources, but not other information. While some state legislatures have adopted protections into state law, others rely on state court precedents. The precedents relating to shield laws are often fluid and vary from court decision to court decision.
Some people believe that Congress should enact a federal shield law, or at least a federal standard pursuant to which the rights of journalists are clearly defined. The differences between states' laws has also raised questions regarding which laws apply where in regard to national reporting. Proponents of shield laws argue that they ensure that news gatherers may do their jobs to their fullest ability and that they help avoid a dichotomy between state laws and journalistic ethics. They also argue that a federal shield law should exist to eliminate contradictions between state laws.
Opponents argue that shield laws afford extra privileges to journalists and that no citizen should be able to ignore a court ordered subpoena. Opponents also cite problems with defining who is considered a journalist or news gatherer and who is not, and note that if journalists get special protection from the government, then they are getting special journalistic benefits from the government instead of acting in complete independence. Further, journalists are normally forced to testify by federal courts only in cases where a federal shield law likely would not protect them anyway, such as in national security cases. Finally, the federal government likely has no constitutional right to enforce a shield law on state courts.
In recent years, there have been bills for federal shield laws in the United States Congress; however, none of these bills have gotten beyond the stage of committee approval.
Sometimes, the press is not even immune from its sources;that occurs when it is the source who wishes to remain anonymous and the journalist who wishes to disclose it. Such was the case in Cohen v. Cowles Media Co. (1991). The Supreme Court upheld that a source may have a right to confidentiality if an agreement was made with the reporter. Unfortunately, the bigger issue of source disclosure gets even more confusing, since the Cohen and Branzburg decisions could allow for the possibility of a journalist being subpoenaed by a court to disclose the name of a source, and being sued by a source under promissory estoppel laws for that disclosure. The current laws of the land, and the gray areas of forecasting potential consequences of publishing a story with confidential sources places the press in a very precarious situation. The current shield laws in some states give the press somewhat of an upper hand, however, since federal law does not recognize reportorial privilege in most cases, it is understandable how the press might feel muzzled.
The shield law privilege may also be waived by a reporter, as the New Jersey Supreme Court recently found in the case of In re Michael G. Venezia, 191 N.J. 259, 922 A.2d 1263 (2007). In that case, a New Jersey newspaper published an article containing defamatory statements about the plaintiff. The article attributed the statements to a source who was identified by name in the article; the source later denied making the defamatory statements. The plaintiff filed a defamation lawsuit against the newspaper, the reporter and the alleged source of the defamatory statements. When the plaintiff sought to question the newspaper reporter about the article, the reporter and his newspaper refused, claiming protection under New Jersey's shield law, N.J.S.A. 2A:84A-21, et seq. It was discovered, however, that the reporter had already given a statement under oath concerning the article -- and, most important, the alleged source of the statement and exactly what that source said -- to a local county prosecutor's office. The reporter also talked about his source and what the source said with a local municipal attorney. The Venezia court unanimously held that, while New Jersey has arguably the most protective shield law in the United States, a reporter waives the privilege when he talks about his sources and information outside of the newsgathering process, as did the reporter in Venezia. The Venezia court stated: "The privilege holder is not permitted to step from behind the shield as he pleases, sallying forth one moment to make a disclosure to one person and then to seek the shield's protection from having to repeat the same disclosure to another person. A reporter cannot play peek-a-boo with the privilege." Thus, the Venezia court ordered that the reporter must submit to the plaintiff's deposition request. Venezia is highly significant because it marks the first time that a reporter has ever been found to have waived the privilege under New Jersey's current shield law, and because it explores the issue of what is or is not a "newsgathering activity," and, thus, what activities are subject to protection under the law.