As State Shield Laws Play Tug-of-War, the Dream of a Federal Shield Law Resurfaces

A recent challenge to a subpoena for a New York reporter's confidential source highlights the risks journalists face when different state shield laws clash. Although uniform state shield laws would reduce uncertainty for reporters on the state court level, a solution to varying federal court tests may appear in the form of a federal shield law.

Fox News reporter Jana Winter has been subpoenaed in connection with her report on the Aurora, Colorado movie theatre shooting of July 2012. Winter was one of the first to report on a notebook owned by suspect James Holmes that allegedly contains details of Holmes's planned attack. Winter's report included allegations that the notebook was sent to a physiatrist prior to the tragic mass shooting. In December 2012, Holmes's defense attorneys accused Winter of violating a gag order that had been put in place to avoid any leaks that may negatively affect their client's case.

Now, New York State's Appellate Division is hearing an appeal about whether Winter must comply with a subpoena to divulge confidential sources from her report. The court's decision will address whether Winter is permitted to remain under the protection of New York's shield law or be forced to testify under Colorado's comparatively weaker shield law. In balancing a court order that Winter must testify against the value the public may gain by shielding her from testifying, Winter's situation demonstrates that journalists can be left without clear guidance to face conflicting state shield laws.

To date, 49 states and the District of Columbia have passed some form of a shield law or recognize some level of privilege for reporters. While this majority number may seem comforting to American journalists, great disparity among the protection afforded by these state shield laws has led to conflict -- as demonstrated by Winter's being caught between jurisdictions. An analysis of New York's shield law and Colorado's shield law highlights how conflicts could be avoided by more uniform state shield laws across the country.

Both New York's shield law and Colorado's shield law pull from the leading U.S. Supreme Court case in this area, Branzburg v. Hayes, which held that reporters have a duty to respond to relevant questions put to them during a grand jury investigation and the First Amendment may not be used as a defense for reporters summoned to testify in court. Justice Powell's often-cited concurrence emphasizes the importance of balancing freedom of press and the obligation of all citizens to give testimony. New York and Colorado both reacted to the Supreme Court's holding in Branzburg by establishing a statutory privilege, but took different measures. In placing the two side-by-side, it is clear that New York's shield law -- which provides absolute protection for confidential information and related material gathered by a journalist -- provides its journalists more protection than Colorado's shield law.

For example, there are the clear differences in the statutory exceptions to shield law protection through which a court can require disclosure. New York law grants an exception to a party seeking a subpoena for a journalist to testify if the party "has made a clear and specific showing that the news: (i) is highly material and relevant; (ii) is critical or necessary to the maintenance of a party's claim, defense or proof of an issue material thereto; and (iii) is not obtainable from any alternative source."  By contrast, the Colorado provides comparatively less protection to journalists because the shield law exceptions are far broader. Nondisclosure exceptions require that the party issuing the subpoena show, by a preponderance of the evidence, that the news information is: "(1) directly relevant to a substantial issue involved in the proceeding; (2) cannot be obtained by any other reasonable means; and (3) that a strong interest of the party seeking to subpoena the newsperson outweighs the interests under the First Amendment to the United States Constitution." (Emphasis added.) Further, the Colorado shield law permits an exception for a search warrant that is in compliance with the federal