Golden State Seeks to Strengthen Shield Law

California's Assembly Appropriations Committee this month  is expected to take up S.B. 558, a measure that would bolster the Golden State's already strong protection for journalists, after the bill unanimously sailed through the Assembly Judiciary Committee on its first policy reading, Courthouse News Service reports.

Article 1, Sec. 2(b) of the California Constitution already shields journalists from having to disclose confidential sources and information to authorities. Presently, news agencies are entitled to five days' notice from law enforcement agencies before a subpoena issues against journalists, thereby affording an opportunity to quash the subpoena or negotiate a narrower production of information. S.B. 558, sponsored by Sen. Ted Lieu (D-Torrance), would further broaden reporter shield law protection so that persons or agencies that issue subpoenas to third parties, such as cellphone carriers, rental car companies and data storage providers, would be required to give five days' notice as well.

The bill, which has the blessings of the state's press association, is a response to the recent U.S. Justice Department disclosures concerning the tracking of Associated Press phone records over a two-month period.

N.J. Blogger Protected by Shield Law, Judge Rules

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Union County (N.J.) Superior Court Judge Karen Cassidy last week extended the Garden State's shield law [N.J. Stat. sec. 2A: 84A-21 to 21.8] to protect a 51-year-old Cranford blogger who alleged county employees misused portable generators during Hurricane Sandy, the Star-Ledger reported.

Judge Cassidy said Tina Renna, whom prosecutors had subpoenaed to reveal the names of the 16 county workers she alleged improperly used the generators, should be shielded by the statute from having to disclose the information, according to the Star-Ledger article. Renna "obtained material in the course of professional newsgathering activities," Judge Cassidy wrote, to disseminate the information over the Internet.

Renna, the gadfly spouse of a former independent candidate for county freeholder, often targets Union County elected officials in blog posts, the quality and tone of which didn't necessarily sit well with the Court. Nevertheless, the trial court decision seemingly expands shield law protection to electronic media denizens.

The Union County prosecutor's office is weighing whether to appeal Judge Cassidy's ruling, the Star-Ledger reported.

Mass. Again Ponders Shield Law: Will 3 Times Be the Charm?

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Article 16 of the Massachusetts Declaration of Rights predated the Framers of the U.S. Constitution's First Amendment recognition of the importance of a free press.  Yet, Bay State solons perennially come up short when it comes to enacting a shield law to protect journalists from having to disclose confidential sources to authorities.

Perhaps persistence will have its rewards, as Rep. Alice Peisch (D-Wellesley), whose proposed Free Flow of Information Act stalled last year (see "TUOL" post 3/1/12), has again introduced a shield law bill, co-sponsored by Rep. Josh Cutler (D-Duxbury), a former editor of the Duxbury Clipper, reports the MetroWest Daily News.

The latest measure encompasses student journalists and "any entity that is in the regular business of gathering and disseminating news or information to the public by any means." It also includes an exemption in cases in which a journalist's testimony would disclose "imminent acts of harm."

The shield law-lovin' staff of "TUOL" has been reporting on this issue for awhile (see "TUOL" post 2/19/10), and being headquartered in the Cradle of Liberty, is profoundly embarrassed that Massachusetts seems unable to join the 40 states and the District of Columbia that have enacted shield laws.

Fox News Journo Seeks to Quash Subpoena in Aurora Shooting Coverage

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Arapahoe County (Colo.) District Court Judge William Sylvester has scheduled a hearing for April 1, according to a Reuters wire service story, on whether New York-based Fox News journalist Jana Winter will have to testify pursuant to requests by attorneys for defendant James Holmes, the accused in the mass shooting last July at an Aurora theater screening of The Dark Knight Rises that left 12 dead and 58 wounded.

Prosecutors fear the start of the trial of Holmes will be delayed, but defense counsel contend Winter's coverage could taint the jury pool and interfere with their client's right to a fair trial by an impartial jury. Defense counsel want Winter to testify concerning the identities of anonymous law enforcement sources regarding her story about a notebook Holmes allegedly sent to Univ. of Colorado psychiatrist Lynne Fenton, the contents of which allegedly address plans for a mass killing, Reuters reported. Winter's story was reported after a gag order issued by Judge Sylvester took effect.

Winter is expected to challenge a subpoena to testify on First Amendment grounds, asserting reporter's privilege and looking to shield law protection from having to divulge confidential sources to authorities. Both New York [N.Y. Civ. Rights Law Art. 7, Sec. 79-h], where Winter is based, and Colorado [Colo. Stat. Sec. 13-90-113], where the trial will occur, boast shield laws that require authorities to show a compelling need for information that they are unable to obtain elsewhere before compelling journalists to testify.

Journalists Prevail in Inaugural Application of Wisconsin Shield Law

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The first journalists to seek protection under Wisconsin's shield law [2009-10 Wisc. Stats. 885.14] (see "TUOL" post 4/22/10) have successfully withstood efforts by the U.S. Department of Justice to subpoena them, the Associated Press reports.

A Sauk County judge declined to issue subpoenas to two broadcast journalists for WISC-TV and WMTV-TV and a reporter for The Capital Times, whose testimony the DOJ sought regarding a story about Amish farmer Vernon Hershberger, who faces trial in January over four misdemeanor license violation counts involving the alleged sale of raw milk.

Judge Guy Reynolds denied the government's request, ruling the DOJ had failed to prove it was unable to obtain elsewhere the information it sought by subpoenaing the journalists.

Idaho Judge Orders Daily to Identify Anonymous Poster

(Photo credit: mMathab)Idaho First Judicial District Court Judge John P. Luster has ordered the Spokesman-Review to identify the anonymous blogger whose post offended Kootenai County Republican Party Chair Tina Jacobsen, the Spokesman-Review reports.

The pseudonymous almostinnocentbystander commented online under a photo of Jacobsen, questioning whether a purportedly missing $10,000 from the County's Central Committee was "stuffed inside Tina's blouse." The post was removed less than three hours after it first appeared.

Judge Luster rejected the daily's free speech argument in denying the paper's motion to quash the subpoena seeking identifying information about the unidentified blogger, noting that the First Amendment does not protect defamatory speech. Idaho lacks a shield law, but Judge Luster said such a statute was irrelevant because the editorial staffer overseeing the Spokesman-Review's online blog was performing as an administrator, rather than as a reporter, when he removed the offending comment.

Editor Gary Graham said the daily is weighing an appeal of Judge Luster's ruling, according to the
Spokesman-Review article.

Texas Bar Owner Loses Defamation Suit Against Blogger

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Dallas County Court Judge Mark Greenberg last week ended an 18-month courtroom battle, ruling in Fernando Rosales & Initiative Partners LLC d/b/a Lost Society v. Avi Adelman et al. (Case No. CC10-08658-E) that a blogger did not defame a bar owner.

According to an account on the Reporters Committee for Freedom of the Press Web site ( www.rcfp.org.), the case arose from blog posts as long ago as June 2010, on Adelman's BarkingDogs.org site regarding alleged business ordinance violations and customer violence involving the Lost Society bar. The allegedly libelous statement by the defendant characterized Rosales as a "scumbag owner" of  the Lost Society bar, the purported site where a victim and his alleged killer "partied" before the shooting occurred, according to a blog post by Adelman. The bar was shut down in October 2011, soon after Rosales's arrest for possession of a controlled substance.

Judge Greenberg ordered the plaintiffs to pay court costs. During the protracted litigation, the plaintiffs unsuccessfully sought an injunction to shut down Adelman's Web site and also subpoenaed him to reveal the source(s) of his post about the fatal shooting, which Adelman defeated by invoking the Texas Shield Law [Texas Civil Practices & Remedies Code §22.021-22.027; Texas Code of Criminal Procedure Arts. 38.11 and 38.111].

Bay State Solons Taking Another Shot at a Shield Law

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"Cradle of Liberty" moniker notwithstanding, Massachusetts has repeatedly come up short in its efforts to enact a shield law to protect journalists  against having to disclose confidential sources (see "TUOL" post 2/19/10).

The Massachusetts General Court, however, is nothing if not persistent, as the Joint Committee on the Judiciary March 6 will conduct a hearing on Bill H.2255, the so-called Free Flow of Information Act ("FFIA"), sponsored by Rep. Alice Hanlon Peisch.

The proposed measure would amend Massachusetts General Laws ch. 233 and would shield "any person who is or has been an employee, agent, or independent contractor of any news media as defined here, who is or has been engaged in bona fide news gathering for such entity, and who obtained or prepared the news or information that is sought while serving in that capacity, or news media, or any parent, subsidiary, or affiliate of the news media as defined below to the extent that the subpoena or other compulsory process seeks news or information described in subsection (b) of this section."

Although shield laws enacted in states most recently tend to do so, it is unclear whether the FFIA would afford protection to bloggers.

UPDATE: Ind. Appeals Court Asks Trial Judge to Review Order Unmasking Anonymous Blogger

Image via WikipediaThe Indiana Court of Appeals last week ordered Marion County Superior Court Judge S.K. Reid to review her ruling last March to compel the Indianapolis Star to identify an online anonymous poster whose comments are part of an ongoing defamation suit (see "TUOL" post 3/4/11).

The Indianapolis Business Journal reported that to preserve the proper balance between First Amendment-protected anonymous speech and unprotected defamatory speech,  the appellate court ordered Judge Reid to apply the test articulated by a New Jersey appellate court in Dendrite International Inc. v. Does 1-14, 2001 WL 770406 (N.J. Super. A.D.) (Case No. A-2774-00T3). Under the five-part Dendrite test, a party seeking to identify an unnamed Internet poster, must: (1) try to contact the poster and allow the person a reasonable amount of time to respond; (2) identify the poster's precise statement(s) at issue; (3) state a prima facie case in his or her complaint; (4) present sufficient evidence concerning each element of his or her claim; and (5) the court must balance the First Amendment interest in anonymous speech against the strength of the prima facie case and the necessity of disclosure of the anonymous individual's identity. Adapting the Dendrite standard to comply with Indiana law, the Appeals Court is requiring supporting evidence only for the elements of  of the prima facie case that are not dependent on the identity of the poster.

In her initial ruling, Judge Reid said Indiana's shield law [Ind. Code sec. 34-46 1,2] did not protect media defendants against having to divulge the identity of an anonymous blogger who is a potential defendant in a defamation suit. The Star was the lone media outlet among  the Indianapolis Business Journal and WTRV-TV Channel 6 that refused to comply with Judge Reid's ruling to identify individuals who posted comments on the media entity's Website.

The Indiana appellate court said a crucial question in the case is whether the pseudonymous commenter DownWithTheColts is the source of any information given to a news outlet under the Hoosier State's shield law. The appellate panel found DownWithTheColts' comments libelous, but noted that the plaintiff in the underlying defamation suit, Jeffrey M. Miller, former CEO of Junior Achievement of Central Indiana, had yet to prove that the offending statement was false and published with actual malice.

In the appellate decision, Indiana Court of Appeals Judge Nancy H. Vaidik wrote: “While we do not want defamatory commenters to hide behind the First Amendment protection of anonymous speech, we must balance the prospect of too readily revealing the identity of these anonymous commenters.”

The Appeals Court remanded the case to Judge Reid to determine under the jerry-rigged Dendrite test whether Miller meets the requirements to unveil DownWithTheColts.

Federal Appeals Court Says NY Shield Law Protects Former WSJ Reporter

Image via WikipediaIn a 12-page decision, a three-judge panel of the United States Circuit Court of Appeals for the Second Circuit last week ruled an ex-Wall Street Journal reporter was protected by New York's shield law from having to testify in a former client's civil suit against Goldman Sachs.

In Baker v. Goldman Sachs et al. (Case No. 11-cv-1591), the appellate court affirmed U.S. District Court for the Southern District of New York Judge Barbara Jones's quashing of a subpoena of former WSJ scribe Jesse Eisinger, whom the court held was  privileged against having to testify under New York Civil Rights Law sec. 79-h.

Eisinger was targeted for a deposition based on articles he wrote for the Journal on February 16, 2000, and in August 2000, concerning Belgian software company Lernout & Hauspie. Some of the company's executives were jailed for misrepresenting the company's revenues and the entity went bankrupt. Plaintiffs James and Janet Baker, whose company, Dragon Systems, produces Dragon Dictation voice-recognition software, sued Goldman Sachs for allegedly failing to exercise due diligence regarding Lernout & Hauspie, which merged with the Bakers in a stock deal. The L&H shares became worthless after the company went belly-up.

Eisinger's articles at issue concerned a Lehman Brothers analyst who raised doubts about L&H's stock valuation and revenues and quoted sources regarding L&H's Asian earnings, respectively. Under New York's shield law, reporters have a qualified privilege against having to disclose unpublished information not obtained under a promise of confidentiality, but are absolutely privileged when news is acquired under a promise of confidentiality.

The Second Circuit panel said the Baker case involved a qualified privilege, which the plaintiffs did not overcome, the Court held, because they failed to show a critical need for the information, that the information sought was material and relevant to their lawsuit and that the information in question was unavailable from an alternative source.

The case is reported on in depth by the Reporters Committee for Freedom of the Press Website (www.rcfp.org).

Federal Judge Rules Oregon Shield Law Won't Cover 'Investigative Blogger'

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The United States District Court for the District of Oregon last week in Obsidian Finance Group, LLC v. Cox (Case No. CV-11-57-HZ) ruled that a self-proclaimed "investigative blogger" could not avail herself of Oregon's shield law [ORS 44.510-44.540] to avoid disclosing the identity of confidential sources to the plaintiff in a defamation suit.

Obsidian sued Crystal Cox for allegedly false statements appearing on several Web sites, including her own obsidianfinancesucks.com (catchy). Among the purported defamatory content are allegations of tax fraud and fraud against the government. Cox, who is defending herself in the suit, sought protection under the shield law, contending she is a member of the media.

The federal court disagreed, noting that she is not affiliated with any print or broadcast medium. More to the point, the court cited a provision of Oregon's shield law that "do[es] not apply with respect to the content or source of allegedly defamatory information, in [a] civil action for defamation wherein the defendant asserts a defense based on the content or source of such information.” As the underlying claim in the lawsuit is defamation, the statute offers no shelter for Cox, the court ruled.

Tip of the hat to Chicago attorney Evan Brown's Internetcases.com blog for picking up on this case.

Cook County Court Rejects Shield Law Claim of Medill Journalism Students

Image via WikipediaNorthwestern University journalism students who toiled for five years under former Prof. David Protess in the Medill Innocence Project were criminal proceeding investigators, not journalists, and cannot withhold information from prosecutors under Illinois' shield law[75 Ill. Comp. Stat. 5/8-901 to 8-909], a Cook County judge has ruled.

The Poynter.org Website said prosecutors are in line to receive more than 500 Emails the Medill students fought against disclosing, absent further appeal by Northwestern. The Emails concern the project's efforts to obtain the release of Anthony McKinney, who is serving a life-sentence for a murder conviction. The court found the students conducted interviews and amassed evidence at the direction of McKinney's counsel.

Counsel for the university argued that advocacy journalists, along with mainstream news media members, should benefit from the shield law.

UPDATE: Too Much Media, Not Enough Journalist, NJ High Court Concludes

Image via WikipediaIn a 42-page decision this week, the N.J. Supreme Court in Too Much Media LLC et al. v. Shellee Hale (Case No. A-7-10, 066074) unanimously upheld earlier rulings by two N.J courts (see "TUOL" posts 4/23/10 & 7/8/09) that a Washington-based online message board poster was not protected from plaintiffs' defamation claim by the Garden State's shield law covering journalists [N.J. Stat. sec. 2A:84A-21].

Supreme Court Chief Justice Stuart Rabner said Hale would have to be more akin to a traditional journalist to be able to invoke the state's broad shield law that protects reporters from having to disclose their confidential sources. In April 2010, the N.J. Superior Court Appellate Division found Hale was not a journalist, as she contends, because she was not connected to any media organization or engaged in journalistic functions, such as fact-checking, or subject to editorial review. New Jersey's recognition of a reporter's privilege dates back to 1933.

The plaintiffs, who have characterized the defendant's message board postings as online conversations, rather than a journalistic endeavor, are expected to proceed with discovery in their defamation lawsuit.

West Virginia Joins Ledger of States with Shield Laws

Image via WikipediaActing Democratic Gov. Earl Ray Tomblin has signed a bill that will take effect on June 10, making West Virginia the 40th state (not including the District of Columbia) to enact a shield law protecting journalists from having to disclose confidential sources to authorities in civil, criminal and administrative proceedings.

The measure affords protection to paid online journalists and unpaid student journalists. The statute's language suggests that bloggers would not be protected.  Under West Virginia's shield law, a court may compel a journalist to divulge a confidential source only if "necessary to prevent imminent death, serious bodily injury or unjust incarceration."

Miller Time: Judge Orders Indy Papers to ID Anonymous Posters

Image via WikipediaIndiana's shield law [Ind. Code sec. 34-46-1,2] does not protect newspapers from having to disclose information to enable a defamation plaintiff to identify anonymous bloggers as potential defendants, Marion County Superior Court Judge S.K. Reid has ruled, according to an article in the online edition of The Indianapolis Star (www.IndyStar.com).

Both the Star and the Indianapolis Business Journal must turn over data, such as Internet protocol addresses, to former long-time Junior Achievement ("JA") head Jeffrey Miller and his spouse, who are suing current JA executive Jennifer Burk, Central Indiana Community Foundation ("CICF") President Brian Payne, and their respective organizations for defamation. Miller subpoenaed the two newspapers, along with WRTV Channel 6, to disclose the identities of anonymous commenters, whose posts, the plaintiffs claim, defamed them.

Among the anonymous comments that the plaintiffs claim are actionable include an accusation that Miller "most likely [committed] a criminal act," that he is "the most greedy man I've ever known," and that "somebody needs to call the state's attorney general and investigate him [Miller]." 

Judge Reid is expected to rule on the subpoena against the television station next week.

UPDATE: Hawaii Not Ready to Say 'Aloha' to Shield Law

Image via WikipediaRepublican House Minority Leader Gene Ward is urging Judiciary Committee Chair Gil Keith-Agarin to get behind H.B. 194, Ward's measure to make permanent Hawaii Rev. Stat. c. 621, which protects journalists from having to disclose confidential information or the identity of anonymous sources, according to the Associated Press.

Chapter 621 was amended by H.B. 2557 in 2009, which created a limited privilege for journalists. Unless acted on, the shield law will expire June 30, 2011.  The privilege was asserted by a documentary filmmaker in 2009 to protect unpublished interviews and raw video footage sought in a property litigation matter, Brescia v. Ka'iulani Edens-Huff et al. (See "TUOL" post 5/10/09.]

Texas Judge Quashes Subpoena--Reporter Won't Testify in Murder Trial

Image via WikipediaDenton (Texas) Record-Chronicle Reporter Donna Fielder will not have to testify in the trial of Charles Stobaugh, who is accused of murdering his estranged wife Kathy Stobaugh, after 362nd Judicial District Judge Bruce McFarling ruled she was shielded by the 2009 Texas Free Flow of Information Act ("TFFIA") [H.B. 670], the Texas daily reports.

Judge McFarling quashed the subpoena by defense counsel to compel Fielder's testimony, ruling it was overbroad and noncompliant with statutory requirements, such as the required signature of District Attorney Paul Johnson. Defense counsel argued that Stobaugh's Sixth Amendment right to a fair trial trumped any claim of reporter's privilege, further asserting that Fielder had access to information that could refute investigators' testimony against their client.

Kathy Stobaugh disappeared Dec. 29, 2004, after leaving behind her two teen-aged children in their rental home to discuss divorce terms with the defendant at the family farm. Her body has never been recovered.

Under TFFIA, a journalist has absolute privilege against having to reveal confidential sources in a criminal case unless the reporter witnesses a felony, receives a confession or probable cause exists that a source committed a felony. Before a reporter may be compelled to testify or produce information, the party issuing the subpoena must demonstrate that the material or testimony is relevant and material to the case, essential to the claim of the person requesting it, and that all reasonable efforts to obtain the information elsewhere have been exhausted.

Judge McFarling also rejected defense counsel's efforts to bar Fielder from covering the trial under the "sworn witness" rule.

Kansas Shield Law Repels First Test

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Kansas' shield law (Senate Substitute for H.B. 2585), passed five months ago, served The Wichita Eagle well in its inaugural run last week.


Sedgwick County District Judge Willliam Woolley ruled that the Eagle did not have to disclose the identities of confidential sources it relied on for a story about the accidental death of a child last March. Counsel for the mother of the 5-year-old victim in a negligence/wrongful death action subpoenaed an Eagle reporter. Judge Woolley held that all other potential avenues for obtaining information must be exhausted before seeking the information from a journalist by means of subpoena.


The Kansas shield law requires a party seeking previously undisclosed information to make a reasonable effort to obtain the information initially in ways other than subpoenaing journalists.  In this case, Judge Woolley said the material could likely be obtained through discovery options available to litigants, such as interrogatories and requests for production of documents.

Canada High Court Fails to Create Shield Law; Gives Nod to Reporter's Privilege

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In Globe and Mail v. Attorney General of Canada, the Supreme Court of Canada this week fell short of creating a shield law for journalists, but conceded "some form of legal protection for the confidential relationship between journalists and their anonymous sources is required."


According to an account in The Globe and Mail, the High Court recognized a reporter's right to conceal the identity of a source if protection of the confidential source advances the public interest.  A Quebec Superior Court Judge two years ago ordered Globe and Mail reporter Daniel Leblanc to divulge the identity of  his anonymous source, dubbed MaChouette, to Le Groupe Polygone Editeurs, Inc., a Montreal media firm embroiled in a $35 million federal lawsuit seeking recovery of monies paid by a former Liberal government.


The Supreme Court of Canada upheld that reporter's privilege matters be evaluated on a case-by-case basis and declined to accord a constitutional shield to journalists to protect confidential sources. Nevertheless, the High Court did frown on subpoenaing reporters to gather information that may be available elsewhere, and suggested disclosure of confidential sources should be confined to situations in which the source's identity is vital to the administration of justice.