California Protections for Sources and Source Material

The following information comes from the Citizen Media Law Project:

There are three potential legal bases for protecting your sources and source material in California:

• the California shield law
• the United States Constitution
• the federal Privacy Protection Act.

The shield law protects the identity of sources (whether promised confidentiality or not), information that might lead to the identity of sources, and unpublished information obtained or prepared in the course of newsgathering activities.

A leading California case has found that the shield law protects some -- but not necessarily all -- online publishers and amateur journalists (more below). The level of protection offered by the shield law depends on whether the case is a civil or criminal case and whether the person from whom information is sought is a party to the case or not.

It does not protect you from disclosing information when you are a party to a civil or criminal case.

The U.S. Constitution may protect you from having to disclose the identity of sources or information collected during newsgathering.

Federal and state courts in California recognize a qualified reporter's privilege based on the First Amendment to the U.S. Constitution.

The reporter's privilege applies to the identity of sources and unpublished information collected or prepared in newsgathering, whether confidential or not (although protection is stronger for confidential information).

Because it is qualified, the party seeking information from a reporter may overcome it upon a strong showing of need. Unlike the shield law, this privilege may apply even when you are a party to a civil lawsuit or criminal case.

The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication.

This federal statutory protection applies regardless of the state in which you live.

SHIELD LAW

Source and Text

The California shield law is contained in the California Constitution, Cal. Const. art. I, § 2(b). An essentially identical shield law is also contained in California's Evidence Code, Cal. Evidence Code § 1070.

In relevant part, California's shield law states:

California's shield law protects a person "connected with or employed upon a newspaper, magazine, or other periodical publication." In an important case, O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006), a California appellate court held that the shield law applies to persons gathering news for dissemination to the public, regardless of whether the publication medium is print or online. In that case, Jason O'Grady operated an "online news magazine" about Apple Computers. He published confidential information he received about a new Apple product. Apple wished to sue the person who divulged the confidential information to O'Grady and subpoenaed him for information about the identity of his confidential source. The court applied the shield law, and O'Grady did not have to identify his source.

The O'Grady case does not mean that all online publishers will benefit from the protection of the California shield law. The court indicated that the shield law protects newsgatherers, like O'Grady, who engage in "open and deliberate publication on a news-oriented Web site of news gathered by that site's operators." On the other hand, the court said the shield law might not protect "the deposit of information, opinion, or fabrication by a casual visitor to an open forum such as a newsgroup, chatroom, bulletin board service, or discussion group." The court expressly declined to decide whether the shield law applies to bloggers because of the "rapidly evolving and currently amorphous meaning" of the word "blog." Thus, the exact reach of the California shield law is unclear, but it arguably protects online publishers who gather and disseminate news to the public. The exact definition of "news" is uncertain, and future cases will no doubt determine its contours more precisely.

California's shield law protects several types of information. First, it protects unpublished information obtained or prepared in the process of gathering information for communication to the public, including things like notes and outtakes. This unpublished information may be protected from disclosure regardless of whether you obtained it in confidence or not.

Second, it protects the identity of sources, whether confidential or not. The shield protects not only the identity of sources themselves, but also information that might lead to their identity.

The strength of protection offered by California's shield law varies based on the type of case and whether the person from whom information is sought is a party to the case:

• Civil cases in which the newsgatherer is a third party: Here, the shield law offers you absolute protection (assuming you are covered by the statute, an issue discussed above). If a party in a civil case issues a subpoena demanding the identity of your source or unpublished information, you cannot be held in contempt for refusing to reveal that information.


• Criminal cases in which the newsgatherer is a third party: Here, the strength of the shield depends on whether a prosecutor or a criminal defendant is seeking the information. Prosecutors generally cannot overcome the shield -- if a prosecutor seeks protected information from you, you generally will not be forced to reveal information if you are covered by the shield law (above). On the other hand, criminal defendants can sometimes overcome the shield. If a criminal defendant seeks information from you (again, assuming you were covered by the shield law), a California court would balance your privilege against the defendant's right to a fair trial. As a threshold matter, the criminal defendant would need to show "a reasonable possibility that the information [would] materially assist his defense." The court would then weigh four factors to determine whether to compel disclosure: (1) whether the information sought is confidential or sensitive, (2) the interests protected by the shield law, (3) the importance of the information to the defendant, and (4) whether alternative sources for the information exist. The results would be different depending on the facts of the particular case.


• When the newsgatherer is a party to a case: When you are a party to a case, the law still protects you from being held in contempt for refusing to disclose the identity of your source and/or unpublished newgathering information, but this provides little protection because contempt is not the only remedy available to the court to force you to disclose information.  For instance, if you refuse to disclose information, the court could enter judgment against you.

For more detailed information about the California shield law, see the Reporters Committee for Freedom of the Press's Privilege Compendium: California.

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