Are there federal shield laws in the US?

That changed for a few years in the mid-1990s. In 1994, the Minnesota Court of Appeals narrowly read the statutory language as protecting only confidential sources and unpublished information "which would tend to identify the person or means through which the information was obtained." Heaslip v. Freeman, 511 N.W.2d 21, 23 (Minn. App. 1994). Under this interpretation, the court held that the statute did not protect unpublished photographs of an automobile accident that one party was seeking from a newspaper (the newspaper was not a party to this civil lawsuit). The court acknowledged that its interpretation of the statute was "finely tuned." 511 N.W.2d at 23. Despite this setback under the statute, reporters continued to receive protection under other legal bases. See, e.g., State v. Ross, 22 Media L. Rep. 2509 (Ramsey Cty., Minn., Dist. Ct. 1994) (undue burden).

The court of appeals followed its narrow view of the shield law--and extended its result to a narrow view of the First Amendment privilege--in a criminal prosecution growing out of an assault during a college campus rally. State v. Knutson, 523 N.W.2d 909 (Minn. App. 1994) (holding that reporter who witnessed assault could be compelled to testify); State v. Knutson, 539 N.W.2d 254 (Minn. App. 1996) (refusing protection to unpublished photographs of the rally if no confidential source would be disclosed).

The Minnesota Supreme Court further eroded any reporter’s privilege for unpublished information in State v. Turner, 550 N.W.2d 622 (Minn. 1996). The case arose after police charged Steven Allen Turner with felony possession of three bags of crack cocaine that they found when they searched him after he tried to evade them in his car. A newspaper photographer had been riding with the police as part of a study on crime in the community, and took pictures of the arrest. Turner wanted evidence from the photographer as "the only neutral disinterested eyewitness." The lower courts held that the photographer did not have to provide information after Turner subpoenaed him, but the supreme court reversed. The supreme court interpreted Branzburg as declaring "that no qualified constitutional privilege exists under the First Amendment that would protect reporters from compelled testimony in a criminal case." Turner, 550 N.W.2d at 628. It stated that the Minnesota shield law "was clearly intended to protect the confidential relationship which exists between a reporter and his or her sources of information," 550 N.W.2d at 631, and "rejected the argument that the Act applies to reporters who personally witness crimes, and to unpublished, nonconfidential information possessed by a newspaper," 550 N.W.2d at 630. However, it held that district courts should review unpublished material in camera to be sure that it was relevant to the case before compelling its disclosure to parties in the case. 550 N.W.2d at 629.

Media organizations and their attorneys viewed Turner as poor policy and a misreading of the statute, and lobbied for corrective legislation, which became law on April 6, 1998. The amendments added the words "whether or not it" after the words "other reportorial data" and before "would tend to identify the person or means" in the section prohibiting disclosure of information. It also modified the situations in which courts could order disclosure of unpublished information, requiring a showing that "the specific information sought" was clearly relevant to a felony or gross misdemeanor, or clearly relevant to a misdemeanor if the information sought would not reveal a confidential source or means of information. The prior law had allowed disclosure only in situations where the information sought was "clearly relevant to a specific violation of the law other than a misdemeanor."

The Minnesota Newspaper Association, the Minnesota Broadcasters Association, and the Minnesota Society of Professional Journalists strongly supported the bill. Rick Kupchella, then president of Minnesota SPJ, and media attorneys Mark Anfinson, John Borger, and Lucy Dalglish testified in favor of the bill. During one committee hearing, State Senator Allen Spear commented that he had pushed for the original law in 1973 intending that it protect all unpublished information in addition to the identity of confidential sources. The legislation passed by wide margins in both the Senate and the House of Representatives. Although the governor objected to the new legislation and issued a public statement explaining his reasons for refusing to sign it, he allowed it to become law without his signature.

The U.S. District Court for the District of Minnesota apparently overlooked the 1998 amendments when it stated that the shield law "simply does not apply" to information that does not involve a confidential relationship. Berglund v. City of Maplewood, 173 F.Supp.2d 935, 950 (D. Minn. 2001), aff'd sub nom. Zick v. City of Maplewood, 50 Fed. App'x 805, 806 (8th Cir. 2002) (unpublished). Similarly, attorneys representing parties seeking reportorial data sometimes rely upon Heaslip, Knutson, or Turner, overlooking the later changes to the statute that render those cases obsolete. See, e.g., In re Mahtani, No. 27-CV-17-11589, 45 Med. L. Rptr. 2408, 2412 (Minn. Dist. Ct., Hennepin Cty., Sept. 25, 2017).

In 2003, the Minnesota Supreme Court interpreted the defamation exception to the shield statute, holding that a nonparty reporter had to disclose which defendants named in a libel action were confidential sources for an article he wrote about a high school football coach. Weinberger v. Maplewood Rev., 668 N.W.2d 667 (Minn. 2003). The court found that the coach had satisfied the exception's three requirements: (1) that disclosure of the source's identity would lead to relevant evidence on the issue of actual malice, (2) that there was probable cause to believe that the source had information clearly relevant to the issue of defamation, and (3) that the information could not be obtained by alternative means. 668 N.W.2d at 672ñ73. The court stressed that the test of relevance is whether evidence has "any tendency" to make a consequential fact more or less probable. 668 N.W.2d at 673. Therefore, where

the plaintiff has alleged that the defendant is the source of the allegedly defamatory statements, relevant evidence constitutes not only evidence on the source's knowledge, but also the source's identity. . . . [W]hen the identity of the speaker is hidden under the cloak of anonymity . . . it is self-evident that the identity of the speaker will lead to relevant evidence on the issue of actual malice.

668 N.W.2d at 673ñ74. The court further held that the probable cause requirement was satisfied because the district court's narrow order only required disclosure of those sources named as defendants, thereby ensuring that disclosure would lead to relevant information. 668 N.W.2d at 674. Even after this decision, the reporter refused to disclose his sources. The district court imposed financial sanctions for that refusal; local journalists contributed to a defense fund to pay those sanctions. The parties to the lawsuit settled, and the reporter was released from the disclosure order without ever revealing his sources.

In 2006, a Blue Earth County judge held that a newspaper reporter had to disclose unpublished information obtained from a telephone interview with a suicidal man during a police standoff (the man ultimately killed himself). Order Re: MS 595.024 MN Free Flow of Information Act, In re Death Investigation of Jeffrey Alan Skjervold, No. CV 07 168, Blue Earth Cty., Minn., Dist. Ct., dated Feb. 13, 2007. Because the man held his wife hostage and shot at least two police officers, the court found that that he had committed felony violations and that there was "no doubt" that information obtained by the reporter "would be clearly relevant to such crimes." In so holding, it rejected the newspaper's argument that the exception only applies where a defendant faces actual prosecution. Because the man killed himself, the court held that the information could not be obtained through alternative means. Finally, the district court held that there was a compelling and overriding interest requiring disclosure, stating, "[t]he right claimed by the [newspaper] to seek the 'truth' must never be allowed to take precedent over the compelling and overriding interest of law enforcement authority to maintain human life." The Court of Appeals reversed, holding that the county attorney had not established the third factor: “Essentially, the county attorney argues that it needs to conduct discovery to find an injustice, but declines to connect the discovery to a particular injustice. We conclude that the statute requires that the particular injustice be identified.” In re Death Investigation of Skjervold, 742 N.W.2d 686, 690 (Minn. App. 2008).

In construing the defamation-action exception to the statutory privilege after the 1998 amendments, the Minnesota Court of Appeals held that the exception applied to the privilege regarding the identity of a source, but not to the privilege for unpublished materials. Ducklow v. KSTP-TV, LLC, 42 Med. L. Rep. 1431, 1434 (Minn. App. March 3, 2014) (unpublished); see also In re Mahtani, No. 27-CV-17-11589, 45 Med. L. Rptr. 2408, 2412-13 (Minn. Dist. Ct., Hennepin Cty., Sept. 25, 2017) (finding Ducklow persuasive, although unpublished decisions of the Minnesota Court of Appeals are not binding precedent).

In Range Development Co. of Chisholm v. Star Tribune, 885 N.W.2d 500 (Minn. App. 2016), plaintiff sought to compel disclosure of the identity of a confidential source who had provided a reporter with a copy of a government document from which the reporter wrote an article. The Court of Appeals reversed a district court order compelling disclosure. In a defamation action, the appellate court held §595.025 “requires an affirmative showing, with concrete evidence, that disclosure of the source will lead to persuasive evidence on the elements of a defamation claim. District courts, when conducting this analysis, must necessarily review the merits of the defamation claim, but will not . . . impose a prima-facie-case requirement.” Id. at 505; see also id. at 511 (“the act puts the burden on [plaintiff], not [the reporter] to demonstrate that the source has relevant information and to establish probable cause that this information is clearly relevant to falsity or actual malice. . . . While this demonstration need not rise to the level of establishing a prima facie case, it does require an affirmative showing. And the burden of that showing falls on [plaintiff], not [the reporter].”); id. at 509 (“when examining whether a party has affirmatively shown that disclosure of the source will lead to persuasive evidence, we conclude that a district court should objectively assess the proffered evidence.”).

Conjecture that the reporter might have discussed something of substance with the source beyond mere receipt of the government report would not suffice. Id. at 510-12. The appellate court held that the district court erred by ordering disclosure, and explained:

[Plaintiff] has not made the affirmative showing required to merit an exception to the act's general rule that a court may not require a reporter to disclose confidential sources. See Minn.Stat. § 595.023 (2014) (stating that general rule). It has neither demonstrated that the source's identity will lead to relevant evidence nor established probable cause that the source has information clearly relevant to the issues of defamation. Both showings require concrete evidence that discovery of the source will lead to persuasive evidence. And while [the reporter] may have embellished the report in this article, because there has been no showing that the source supplied him with information other than the report, there has been no demonstration that learning the source's identity would lead to persuasive evidence on the issues of falsity or malice.

Id. at 511-12.

Text of statute
Following its most recent amendments in 1998, the Minnesota Free Flow of Information Act provides:

595.021 News media; protection of sources; citation.

Sections 595.021 to 595.025 may be cited as the "Minnesota free flow of information act."

595.022 Public policy.

In order to protect the public interest and the free flow of information, the news media should have the benefit of a substantial privilege not to reveal sources of information or to disclose unpublished information. To this end, the freedom of press requires protection of the confidential relationship between the news gatherer and the source of information. The purpose of sections 595.021 to 595.025 is to insure and perpetuate, consistent with the public interest, the confidential relationship between the news media and its sources.

595.023 Disclosure prohibited.

Except as provided in section 595.024, no person who is or has been directly engaged in the gathering, procuring, compiling, editing, or publishing of information for the purpose of transmission, dissemination or publication to the public shall be required by any court, grand jury, agency, department or branch of the state, or any of its political subdivisions or other public body, or by either house of the legislature or any committee, officer, member, or employee thereof, to disclose in any proceeding the person or means from or through which information was obtained, or to disclose any unpublished information procured by the person in the course of work or any of the person's notes, memoranda, recording tapes, film or other reportorial data whether or not it would tend to identify the person or means through which the information was obtained.

595.024 Exception and procedure.

Subdivision 1. Disclosure; application. A person seeking disclosure may apply to the district court of the county where the person employed by or associated with a news media resides, has a principal place of business or where the proceeding in which the information sought is pending.

Subd. 2. Disclosure allowed; conditions. The application shall be granted only if the court determines after hearing the parties that the person making application, by clear and convincing evidence, has met all three of the following conditions:

(1) that there is probable cause to believe that the specific information sought (i) is clearly relevant to a gross misdemeanor or felony, or (ii) is clearly relevant to a misdemeanor so long as the information would not tend to identify the source of the information or the means through which it was obtained,

(2) that the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights, and

(3) that there is a compelling and overriding interest requiring the disclosure of the information where the disclosure is necessary to prevent injustice.

Subd. 3. Determination; appeal. The court shall make its order on the issue of disclosure after making findings of fact, which order may be appealed to the court of appeals according to the rules of appellate procedure. During the appeal the order is stayed and nondisclosure shall remain in full force and effect.

Does the US have a federal shield law?

How many states have shield laws 2022?

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