5 - Reporter's Privilege

Hannah Diffee

Professor Reppert

Media Law and Ethics

March 2025

5 - Reporter's Privilege

Reporters and Confidential Sources

The term "reporter" originally referred to someone employed by a newspaper, radio station, or television station to gather news and deliver it to the public. Now, in today's digital age, anyone with a smartphone can consider themselves a reporter. Because reporters often tackle complex stories involving public officials and serious crimes, many laws exist to protect them from retaliation or legal consequences. Reporter's privilege is a legal doctrine that protects journalists from being required to disclose their sources. 

Journalists typically share their sources of information to make their reports more credible. However, in some instances, journalists may rely on confidential sources. According to the Free Speech Center at Middle Tennessee State University, "Confidential sources provide information to journalists or other writers with the agreement that their identities will not be revealed in the reporting of the details that they have provided." These sources may otherwise refuse to speak to reporters for fear of retaliation. "They fear for their own and/or their family's safety, that they will be fired from their jobs, or that they will be shunned in their communities" (Freedom Forum). Advocates of reporter's privilege argue that, without the doctrine, citizens would not come forward to share important information, harming reporters' ability to do their jobs. 

Above: Image contains link to video

Shield Laws
Many states have enforced shield laws that establish reporter privilege. As of March 2025, 49 states have some form of shield law, with Wyoming being the only exception. Hawaii enacted a shield law in 2008, but it expired in 2013, and no efforts to produce a similar law have been successful since. 

Image Source: Reporters Committee for Freedom of the Press

Who Qualifies for Reporter's Privilege?
Since no federal shield law exists, circuit courts' interpretations of reporters' privilege can differ. Courts agree that the privilege applies to reporters, but the legality of who qualifies as a reporter is often ambiguous. As mentioned, anyone with technology access can share news and information. However, to be legally protected, one must publish information with the clear intent for it to reach the public. "Someone who does not mean to publish to the public but only to a limited set of people is probably not a reporter," Yale Law School shares, "and those collecting information for a reason other than newsworthiness do not qualify, such as fiction writers, private lobbyists, advertisers," etc.

In the 1987 U.S. Court of Appeals case von Bulow by Auersperg v. von Bulow, the Second Circuit determined who may benefit from reporter's privilege. It held that "the individual claiming the privilege must demonstrate, through competent evidence, the intent to use material--sought, gathered, or received--to disseminate information to the public and that such intent existed at the inception of the newsgathering process." 

Above: In 1982, British socialite Claus von Bulow was accused of attempting to kill his wife by injecting her with insulin and other drugs. She lived in a vegetative state for nearly 28 years until she died in 2008.

In the von Bulow case, Andrea Reynolds, described as a "close acquaintance" of Claus von Bulow, was asked to reveal the draft of her book detailing the man's criminal trial in Rhode Island. Reynolds refused to comply with these requests, arguing that her material was protected by reporter's privilege. The court determined that the privilege was not applicable in this situation because Reynolds was not a journalist.

Above: Andrea Stephens and Claus von Bulow

The Power of Citizen Journalists and Bloggers

In 2007, the University of Minnesota Law School published a report examining how reporter's privilege applies to citizen journalists. The report highlighted that some states' shield laws only protect those employed by an established media organization or individuals with "regular" or "frequent" employment. While some argue that independent bloggers and citizen journalists should not receive such protections, the U of M Law School highlights their importance in journalism: "Online contributors have broken a number of stories that the mainstream media originally either ignored or downplayed" (pg. 524). This raises questions and illustrates the need to expand the privilege to apply to more than just media professionals.

For example, blogger Matt Drudge, creator of the Drudge Report, was the first to break several stories, including that

• Newsweek had pulled a story detailing President Bill Clinton's affair with Monica Lewinsky.
• Republican Bob Dole had chosen Jack Kemp as his running mate for the 1996 presidential election.
• Newsweek had witheld another story reporting that Clinton had sexually assaulted White House aide Kathleen Willey.
• CBS had fired Connie Chung.
  
  

Above: Matt Drudge

Newswriters must continue holding governments, organizations, and individuals accountable for their actions, and the reporter's privilege is a necessary legal doctrine that allows them to continue doing so. The scope of the reporter's privilege will continue to expand and be debated as the world becomes more digital. We may see political commentators and social media influencers begin to claim similar privileges, challenging traditional journalism norms.

"This history of the reporter's privilege demonstrates that the medium of communication should not determine whether the privilege should apply. Instead, the focus must be on the underlying purposes for the privilege: increasing the amount of information in the public domain without turning all of those who engage in such an enterprise into investigators for the government and private parties."

- University of Minnesota Law School