Journalists have long asserted a First Amendment privilege to keep names of their sources confidential when ordered by a court to turn over the information. In Branzburg v. Hayes in 1972, the Supreme Court declined to find such a First Amendment privilege, at least when reporters are subpoenaed to testify before grand juries. Apart from grand juries, some federal courts have protected reporters called to testify in criminal and civil trials by balancing newsgathering against the need of litigants for information. But such protection by judges is uncertain. Stepping into the breach, most states – the latest being Vermont – have helped the press by passing laws that provide a reporters privilege in cases involving state (not federal) law. For news, analysis, and legal background, read on.


News & Updates

May 17, 2017:  Vermont Governor Phil Scott Signs Law Protecting Journalists

Vermont’s governor signed a bill limiting the power of the state government to compel journalists to reveal their confidential sources. “This protection enables sources, from whistleblowers to victims of a crime, to feel confident in their ability to speak freely with the press, ensuring accountability and giving the vulnerable a voice without fear,” the governor said.

Seven Days, Vermont’s independent weekly news source, describes the history of Vermont journalists being compelled to testify or facing prosecution for refusing to divulge confidential sources. Most recently, in 2016, three Seven Days reporters and one Vermont Public Radio reporter were subpoenaed to testify in a Vermont state senator’s sexual assault case. Overall, in the last 40 years, there have been approximately two-dozen cases where journalists have been issued subpoenas, according to a Burlington lawyer who has defended a print publication in every one of those cases.

The Vermont Senate unanimously approved a bill that would implement “shield laws” protecting reporters. Vermont is one of thirteen states that currently lack legal protections for journalists to refuse to give up information, notes, or recordings. The bill would give journalists the legal right to withhold confidential information and protect confidential sources. Information acquired on the record would still be obtainable by government subpoena in certain situations. The bill now moves to the Vermont House Committee on the Judiciary.

VT Digger> Seven Days >
VPR News >
July 14, 2017: Judge Rules Reorg Research Protected by Shield Law

Reorg Research won’t have to disclose confidential sources who contributed to stories on coal miner Murray Energy’s financial results and labor union agreements. The First Department Appellate Division of the New York Supreme Court deemed Reorg a media organization despite Murray’s counter arguments. The conflict began last August when the tiny research outfit sent out a news alert about Murray based on anonymous sources. Murray Energy sued for source disclosure; Reorg countered it is a media organization protected by New York State shield laws.

Business Wire> Associated Press> New York Times>
February 24, 2017: Federal Judge Rules Oregon Reporter Won’t Have to Testify at Oregon Refuge Trial

A federal judge ruled that a former Oregon Public Broadcasting reporter will not be forced to testify at the ongoing conspiracy trial related to the January 2016 armed occupation of a national wildlife refuge. OPB reporter John Sepulvado fought a government subpoena compelling him to testify about whether his story accurately depicted Ryan Bundy, the occupation leader.

US News & World Report>

Analysis & Opinion

March 30, 2017: The Oregonian Editor Vows to Fight Potential Subpoenas

Mark Katches, the editor of The Oregonian, penned an editorial about why his newsroom will fight potential subpoenas in an ongoing fraud case against a former state consultant. “As a matter of principle, we fight subpoenas to testify about what our sources give us. We don’t want to be placed in a position where we’re asked about confidential material we’ve uncovered during the reporting process… we’re deeply concerned that if a reporter is compelled to testify, it could discourage sources from talking to us confidentially. This case wasn’t about confidential material. But we treat all our conversations with sources as sacred — and fortunately state laws do too. We didn’t want to run the risk of attorneys for either side asking us about unpublished material or about our news gathering process. If sources believe we’re willing to talk about these kinds of details it could prove to be a chilling effect down the road. Testifying for one side or the other also imperils our independence.”

The Oregonian>
March 22, 2017: In support of Vermont’s Shield Laws

Dave Gram, an Associated Press reporter who wrote for the Montpelier, Vermont bureau for three decades, writes in support of Vermont’s consideration of broad shield laws.

Burlington Free Press>
December 30, 2016: Press Freedom Crackdown a Reality Under Both Trump and Obama

In an op-ed for The New York Times, James Risen argues that, although Donald Trump made aggressive anti-press statements throughout his campaign, the Obama administration was also intimidating and hostile to the press. Risen describes the Obama administration’s history of cracking down on press freedoms, prosecuting whistle-blowers under the Espionage Act, and compelling journalists to testify. Risen writes, “When Mr. Obama was elected in 2008, press freedom groups had high expectations for the former constitutional law professor, particularly after the press had suffered through eight years of bitter confrontation with the Bush administration. But today, many of those same groups say Mr. Obama’s record of going after both journalists and their sources has set a dangerous precedent that Mr. Trump can easily exploit.”

There is no federal shield law statute, but many states have individual laws governing reporter’s privileges. But they vary significantly in their protections: they may define journalists narrowly or broadly; they may protect only the identity of confidential sources or the information itself depending on how it was obtained; and many require judges to apply various balancing tests for their actual application.

New York Times>
September 22, 2013: The Case for a Federal Shield Law

The Washington Post Editorial Board argues a federal shield law is necessary and “long past time for Congress to pass a law protecting journalists from being forced to disclose information about the sources, methods and content of their reporting to the government.”

Washington Post>
June 2, 2013: The Case Against a Federal Shield Law

Columnist Walter Pincus’s main concern with a federal shield law is defining who is a journalist with so many online outfits. “Congress in past federal shield law efforts has tried to regulate who the protected journalists will be by using more dangerous standards. The slippery slope of standards has involved such things as who the journalists work for or their organizational associations.” Should the government draw a line as to who is protected and who is not?

The Oregonian>

History & Legal Cases

Vermont is the latest state to strengthen journalist shield laws. Originally, the Vermont Supreme Court established a reporter’s privilege in a 1974 case, State v. St. Peter, but a 2005 case involving WCAX-TV erased many of these protections. Vermont journalists have been advocating for stronger shield laws ever since.

State v. St. Peter> Supreme Court of Vermont. IN RE: INQUEST SUBPOENA (WCAX)>


It is difficult to know just how many reporters nationwide are issued subpoenas each year according to the Reporters Committee for Freedom of the Press, but states issue the vast majority of these subpoenas therefore a focus on state shield laws is important.



Reporter’s privilege is the right asserted by journalists to keep their sources confidential in the face of a court order to reveal the information. The U.S. Supreme Court considered that issue only once, in 1972, in the case of Branzburg v. Hayes, 408 U.S. 665. The Court in a 5-4 decision said that reporters did not enjoy a First Amendment right to a reporter’s privilege, at least as regards demands that they testify before grand juries. The Court cited the strong societal interest in obtaining evidence for the benefit of law enforcement. In a concurring opinion, however, Justice Powell said that requests for privilege should be considered on a case-by-case basis. In dissent, Justice Stewart proposed a test to be used when the government seeks to compel a journalist to reveal sources: That the government “must show that there is probable cause to believe that the newsman has information that is clearly relevant to a specific probable violation of law; demonstrate that the information sought cannot be obtained by alternative means less destructive of First Amendment rights; and demonstrate a compelling and overriding interest in the information.” In the wake of Branzburg, reporters have no privilege before a grand jury, but most U.S. Courts of Appeals recognize some version of a reporter’s privilege in criminal and civil cases, often using Stewart’s test. The majority of states have some form of statutory or state constitutional reporter’s privilege to govern instances when the issue arises in their own state courts; these protections vary widely in their reach and effectiveness.

Branzburg V. Hayes Full Text>

The Reporters Committee for Freedom of the Press offers a detailed guide to the law as well as a state-by-state guide to reporter’s privilege.