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Reporter's Rights to Keep Sources Confidential Unclear in a Changing Media World

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 is undergoing 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.

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 is considering a bill (the Free Flow of Information Act) that would create a federal shield law.

Q: What would a federal shield law mean to Ohio journalists?
A:
 The Free Flow of Information Act would grant limited protection for journalists to protect their confidential sources in federal criminal trials and grand juries. It also defines “journalist” as a person with the intent to disseminate information to the public.  Such a definition would make protection more available to those who work online or in other non-traditional news formats. The bill also seeks to block terrorist organizations from gaining the right to conceal confidential 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 refused to divulge their sources. In 2006, a federal judge imposed an 18-month prison sentence for San Francisco Chronicle reporters Mark Fainaru-Wada and Lance Williams when they refused to say who provided them with grand jury testimony from baseball star Barry Bonds during a steroid use investigation. The reporters escaped jail time when the source came forward on his own.

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 have sometimes been found in contempt of court when the confidential information they had was deemed necessary to the parties in a criminal proceeding and the information could not be obtained from other sources.  Such contempt charges can result in a fine or even jail time.

At the same time, the court 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.

4/25/2010

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.

Articles appearing in this column are intended to provide broad, general information about the law. Before applying this information to a specific legal problem, readers are urged to seek advice from an attorney.

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