Q: Are reporters for online news media and bloggers considered journalists in Ohio? If so, do journalists have special privileges that other citizens do not enjoy?
A: The world of journalism has undergone a mass transformation. Citizens increasingly receive their news from online sources while newspaper circulation and television broadcast viewing has declined, but the laws governing the news media have changed little. Currently journalists receive a limited amount of protection from having to reveal confidential sources, but it is unclear whether Ohio law also covers those who present the news online, through blogs, podcasts or even Twitter tweets.
Q: Do Ohio journalists have a right to keep their sources confidential?
A: Ohio is one of many states with a “reporter’s shield law” that allows journalists to refuse to disclose their confidential sources. Ohio enacted its shield laws in 1953 to protect print journalists and added broadcasters in 1977. Ohio courts also have recognized a constitutional protection for non-confidential notes, drafts, video outtakes and other non-published or non-broadcast materials.
Q: Who is covered by the privilege?
A: Ohio’s shield laws define a journalist as a person “engaged in the work of, or connected with, or employed by” a broadcast station (radio or television) or newspaper or press association for the purpose of gathering, editing and publishing or broadcasting news.
In contrast to the laws of other states, Ohio’s use of words such as “engaged in” and "connected with" recognizes a wider group of news gatherers such as freelancers and part-time journalists working with traditional media outlets. However, other states have recognized the growing number of non-traditional ways that news is spread by providing the privilege based more on the work that is done than whether a journalist is affiliated with a traditional media outlet. That is still to be tested in Ohio. A recent case involved a former newpaper reporter who currently presents her news reports on a Facebook page. She had her records of telephone calls to public officials subpoenaed and used in a grand jury proceeding without her knowledge. The case brings into question whether or not she is entitled to shield law protection.
Q: Are all journalists’ sources confidential?
A: No. Ohio courts have limited the privilege to keeping sources confidential only when the source was contacted for a news story while the journalist was working on a story. For example, courts denied the privilege to a radio news director who refused to disclose the source of a rumor she heard from a friend during a non-work conversation that was later broadcasted during a radio talk show.
Q: Is it true that news reporters never have to reveal their sources?
A: No; most states do not give absolute privilege to reporters, especially where criminal trials are concerned. A reporter may not be protected by the privilege when asked to reveal confidential sources to a grand jury or in a criminal trial when the criminal defendant’s Sixth Amendment rights to a fair trial are at risk.
State shield law protection applies only in state court or state proceedings, and not in federal court or against a federal grand jury subpoena. No federal law currently protects journalists from being forced to disclose their confidential sources, but Congress has been considering over the years several versions of a “Free Flow of Information Act,” which would create a federal shield law. The latest version of the Act was approved by the House of Representatives as an amendment to a spending bill in 2015. It has not been approved by the Senate. In the meantime, the U.S. Department of Justice has adopted internal guidelines, putting some additional limits on when its attorneys would seek to subpoena reporters to disclose their sources.
Q: What can happen if a journalist refuses a court order to divulge a source?
A: Courts have imposed jail time and fines for reporters for contempt of court when they refuse to divulge their sources. In January 2015, the Obama administration eventually gave up an attempt to force New York Times reporter James Risen to testify against a CIA agent who revealed confidential information about attempts to foil Iran’s nuclear power program. A U.S. district court ruled Risen did not have to testify, but a federal appeals court overruled the decision, saying Risen would be in contempt for not testifying, and the U.S. Supreme Court, without explanation, let the decision stand. A federal jury convicted the ex-CIA agent Jeffrey Sterling in January 2015, and in May he was sentenced to three and a half years in prison for leaking the confidential documents.
Q: If journalists have the privilege, why would they ever have to go to jail?
A: In 1972, the United States Supreme Court emphasized the need to ensure that criminal investigations and trials are fair. Journalists are sometimes found in contempt of court when the confidential information they have is deemed necessary to the parties in a criminal proceeding and the information cannot be obtained from other sources. Such contempt charges can result in a fine or even jail time.
At the same time, the court has recognized the important function of the news media and that, without some protection, there would be a “chilling effect” on the media’s ability to play its watchdog role over government.
This “Law You Can Use” column was provided by the Ohio State Bar Association. It was prepared by Dan Trevas, a Columbus attorney and former news reporter for print and online news services.