Reporter's Qualified Privilege
by Sanford L. Bohrer and Susan H. Aprill
Updated September 2007
- A. The Privilege Originates in the Florida Supreme Court.
B. The Privilege Is Limited by the Supreme Court
C. The Privilege is Clarified by the Supreme Court and Formalized by the Florida Legislature
About the Authors
A. The Issue: Where a journalist has gathered or received information or documents in his or her professional newsgathering capacity, when can he or she be compelled to provide such information or documents to a party to a civil or criminal lawsuit, or to government investigators?
B. How It Arises: Usually the issue is raised when a subpoena is served on the journalist, demanding disclosure of a source (confidential or not), the content of information received by the journalist (whether disclosed in an article or broadcast or not), and/or notes or other documents compiled or received by the journalist.
C. A Qualified Privilege: Florida recognizes that journalists may not have to provide information demanded by a subpoena in certain circumstances. If a journalist claims a privilege, i.e., a right not to testify or turn over written information, courts must examine the nature of the information sought, the nature of the controversy for which it is sought and its relation to that controversy, and whether the information is available elsewhere in determining whether to recognize the privilege or to compel a journalist to testify or turn over information. Privilege from compelled disclosure may apply to both confidential and nonconfidential information in both civil and criminal proceedings.
D. The Test: Courts traditionally have applied a three-part test in determining whether the journalist should prevail: (1) whether the journalist possesses information relevant to the controversy, (2) whether the same information is available from alternative sources, and (3) whether there is a compelling need for the information. The Florida Legislature enacted a Shield Law which codifies the right to a qualified privilege and the test to determine whether the privilege exists for professional journalists. Sec. 90.5015 F.S.
E. Balancing of Interests: When applied, the test involves a balancing of interest, meaning information received and published on a nonconfidential basis which is critical to the prosecution or defense of a criminal defendant is less likely to be protected than the identity of a confidential source sought in an ordinary civil lawsuit arising out of an automobile accident.
F. No Privilege for Direct Evidence of Crime: There is no privilege when the reporter is an eyewitness to a relevant event such as an arrest or police search, has heard a direct confession of a crime, or has physical evidence of criminal activity — including unpublished photographs or tape — the reporter will in all likelihood be required to provide the evidence.
II. Two Bases For a Privilege: Judicial and Statutory.
A. The Privilege Originates in the Florida Supreme Court.
More than 30 years ago, the Florida Supreme Court, in the celebrated case of reporter Lucy Ware Morgan recognized a reporter's qualified First Amendment privilege not to reveal confidential sources.
Morgan twice had been convicted of contempt for refusing to disclose the confidential source who had leaked to her the substance of a sealed grand jury presentment. On appeal, the Second District Court of Appeal affirmed the conviction even while recognizing a qualified First Amendment privilege. Morgan v. State, 325 So. 2d 40 (Fla. 2d DCA 1975). The Florida Supreme Court reversed, holding a generalized governmental interest in grand jury secrecy was insufficient to outweigh the First Amendment interest in the protection of confidential sources. Morgan v. State, 337 So. 2d 951 (Fla. 1976). The opinion offered a close reading of the Branzburg plurality opinion to justify this interpretation, relying on a balancing of constitutional and societal or governmental interests as articulated in Justice Powell's concurring opinion.
The balance between those interests was weighed on a three-part scale, with the reporter compelled to provide evidence only if:
a. The information sought is relevant. (For example, if the State seeks the information, it must show that the reporter's testimony is needed to serve a legitimate need of law enforcement, or genuinely relates to a claim or defense in a prosecution).
b. There is a compelling need for the information.
c. The information cannot be obtained by alternative means or from persons whose First Amendment rights are not at stake.
Ten years later, the Florida Supreme Court reaffirmed Morgan, extending the privilege to criminal and civil matters. Tribune Co. v. Huffstetler, 489 So. 2d 722 (Fla. 1986). Florida courts thereafter applied the privilege in both civil and criminal cases, extending the privilege to include information from nonconfidential sources, Tribune Co. v. Green, 440 So. 2d 484 (Fla. 2d DCA 1983), rev. denied, 447 So. 2d 886 (Fla. 1984), and recognizing that journalists have due process rights just like other citizens. Times Publishing Co. v. Burke, 375 So. 2d 297 (Fla. 2d DCA 1979) (holding the privilege requires that a hearing and reasonable notice be granted the press before an order compelling a reporter to testify in a judicial proceeding may be entered).
Over course of the next several years, the Supreme Court narrowed and limited the privilege somewhat, for example carving out exceptions to the privilege where the reporter was an eyewitness to a relevant event.
In Miami Herald Publishing Co. v. Morejon, 561 So. 2d 577 (Fla. 1990), the Florida Supreme Court held an eyewitness to a police search of a criminal suspect had no privilege to refuse to testify regarding his observations when the suspect later moved to "suppress" the evidence gathered in the search. The Florida Supreme Court left unresolved other aspects of the journalist's privilege question.
Almost a year later, the Florida Supreme Court again rejected a reporter's claim of qualified privilege to refuse to disclose information obtained while an eyewitness to a relevant event which was the subject of a criminal proceeding. In CBS, Inc. v. Jackson, 578 So. 2d 698 (Fla. 1991), the court held CBS had to turn over to the criminal defendant "outtakes" of its videotape of the defendant's arrest since the defendant's request did not implicate any sources of information, but rather sought discovery of physical evidence of the "events surrounding" his arrest. In a footnote, the court commented that no qualified privilege should apply when a party seeks any unpublished photographs or videotape from a reporter. Courts were then free to interpret the Morejon and Jackson decisions to require a reporter to testify about or release unpublished material reflecting his or her eyewitness observations.
Even when applying the three-part test, courts had compelled journalist's testimony in cases not involving confidential sources. For example, in Waterman Broadcasting of Florida, Inc. v. Reese, 523 So. 2d 1161 (Fla. 2d DCA 1988), the Court of Appeal ruled a reporter had to testify regarding her interview with a doctor who "confessed" to the reporter that he had given his terminally ill wife a lethal dose of drugs in order to hasten death. The court found (a) the confession to be relevant because each confession to a crime is unique; (b) a compelling interest because of the State's responsibility to investigate the crime; and (c) no alternative means of getting the information because no other such conversations occurred.
C. The Privilege is Clarified by the Supreme Court and Formalized by the Florida Legislature
In 1998, the Florida Legislature enacted a journalist's privilege statute or "shield law," which is at Section 90.5015, Florida Statutes. Essentially, this statutory privilege provides that "professional journalists," as defined by the statute have a qualified privilege not to be a witness concerning and not to disclose information, including, but not limited to confidential sources, gathered in his or her professional journalistic capacity. The privilege is a qualified one because one seeking the information can compel the journalist to testify by meeting the three part test described above: relevance of the information, a compelling need for it, and no alternative sources. The privilege is not "waived" simply because the journalist discusses the subject in interviewing someone for a publication. Ulrich v. Coast Dental Servs., Inc. 739 So.2d 142 (Fla. 5th DCA 1999).
In 1998, in addition to the legislative enactment of the "journalist's privilege" or "shield law", the Florida Supreme Court decided three significant cases, breathing new life into what had been an eroding and inconsistently applied privilege. Two district courts of appeal had "certified" to the Florida Supreme Court the question whether Florida law provided a qualified reporter's privilege against the disclosure of nonconfidential information relevant to a criminal proceeding. In October of 1998, the Supreme Court held that such a qualified privilege exists against the disclosure of both nonconfidential and confidential information, stressing the need to balance a defendant's constitutional rights against the rights of a free press. State v. Davis, 720 So. 2d 220 (Fla. 1998).
In Davis, the Court reversed the Second District Court of Appeal decision which had vacated a defendant's conviction on the theory that the reporter's privilege should not apply where no confidential source was implicated and the defendant should have been allowed to depose a reporter who had interviewed the victim to impeach her. The Florida Supreme Court held that the privilege does, in fact, apply to situations involving both nonconfidential and confidential information and reinstated the defendant's conviction. In Kidwell v. State, 730 So.2d 760 (Fla. 1998), the Supreme Court employed the test explained in its Davis decision and quashed the trial court contempt order which had caused a reporter to be jailed and which, as stated above, had been upheld by the Fourth District Court of Appeal, observing that in Kidwell, unlike Davis, where the defendant's right to due process and compulsory process was to be accorded great weight, the government had served the subpoena on the reporter, and explained the need in these circumstances for a careful evaluation by the trial court of the information in issue to protect against the press becoming an "investigative arm" of the state.
Finally, in Morris Communications Corp. v. Frangie, 720 So.2d 230 (Fla. 1998), where a reporter's motion to quash a subpoena in a civil proceeding was denied and the First District Court of Appeal had certified the question whether the privilege applied to nonconfidential information relevant to a civil proceeding, the Supreme Court made clear that its decision in Davis applies to civil, as well as criminal proceedings.
III. Appendix 1.
A. What To Do if You Are Subpoenaed or Asked To Testify.
A subpoena is in essence a court order on behalf of a party to a lawsuit commanding the person named on it to attend a hearing, trial, or deposition and testify under oath. The subpoena also may require the person to bring documents with him or her and produce them for inspection and photocopying by the party having the subpoena issued.
You cannot ignore a subpoena. If you ignore a subpoena and fail to appear, you are subject to being held in contempt, which means you can be put in jail and/or fined until you testify. As a journalist, this means unless you get the subpoena quashed, i.e., voided or nullified by a court, your work product, including notes, documents, and confidential sources, can be revealed involuntarily in court proceedings and you can be called to be a witness for one side or the other in a court proceeding. Under a First Amendment privilege, Florida judges in both state and federal courts may protect journalists from being compelled to testify, whether or not a confidential source is involved. But such is not always the case, and you must take care to protect your rights by following some basic rules.
1. Do not agree to appear voluntarily as a witness in any proceeding.
2. If an attorney or investigator asks you for "background" or additional information about a story you wrote, exercise extreme caution in disclosing any information. Any disclosure to the attorney or investigator later may be deemed a waiver of your privilege against testifying.
3. If you are served with a subpoena, or someone else receives it "on your behalf," record precisely when, by whom, and how it was served. Never ignore the subpoena.
4. Always demand a check from a subpoena server to cover certain expenses prescribed by statute; if no check is received, ask the subpoena server to note that fact on the subpoena itself.
5. Do not contact the attorney involved; rather, immediately report the receipt of a subpoena to your editor or news director, who should report it to the news organization's lawyer.
If you or your editor have no lawyer, consider calling the First Amendment Foundation Hotline, 1-800-337-3518.
B. Your Rights.
With the Shield Law and the Florida Supreme Court's most recent pronouncement of the reporter's privilege, Florida courts once again have guideposts which should result in reasoned decisions. In general, you can expect not to be compelled to produce your work product or testify (assuming you are not an eyewitness to an event in a criminal case) unless the party seeking to compel you has shown:
1. the information sought is relevant to an issue in the case;
2. the information is not only relevant but is so relevant that there is a compelling need for the information, so compelling as to be considered as going to the heart of one party's case, and
3. the information cannot be obtained by alternative means or from persons whose First Amendment rights are not at stake.
IV. Appendix 2.
Section 90.5015 of the Florida Statute provides for a journalist's privilege.
1. For purposes of this section, this term:
a. "Professional journalist" means a person regularly engaged in collecting, photographing, recording, writing, editing, reporting, or publishing news, for gain or livelihood, who obtained the information sought while working as a salaried employee of, independent contractor for, a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine. Book authors and others who are not professional journalists, as defined in this paragraph, are not included in the provisions of this section.
b. "News" means information of public concern relating to local, statewide, national, or worldwide issues or events.
2. A professional journalist has a qualified privilege not to be a witness concerning, and not to disclose the information, including the identity of any source, that the professional journalist has obtained while actively gathering news. This privilege applies only to information or eyewitness observations and does not apply to physical evidence, eyewitness observations, or visual or audio recording of crimes. A party seeking to overcome this privilege must make a clear and specific showing that:
a. The information is relevant and material to unresolved issues that have been raised in the proceeding for which the information is sought;
b. The information cannot be obtained from alternative sources; and
c. A compelling interest exists for requiring disclosure of the information.
3. A court shall order disclosure pursuant to subsection (2) only of that portion of the information for which the showing under subsection (2) has been made and shall support such order with clear and specific findings made after a hearing.
4. A professional journalist does not waive the privilege by publishing or broadcasting information.
5. This section must not be construed to limit any privilege or right provided to a professional journalist under law.
6. Authentication: Photographs, diagrams, video recordings, audio recordings, computer records, or other business records maintained, disclosed, provided, or produced by a professional journalist, or by the employer or principal of a professional journalist, may be authenticated for admission in evidence upon a showing, by affidavit of the professional journalist, or other individual with personal knowledge, that the photograph, diagram, video recording, audio recording, computer record, or other business record is a true and accurate copy of the original, and that the copy truly and accurately reflects the observations and facts contained therein.
7. If the affidavit of authenticity and accuracy, or other relevant factual circumstance, causes the court to have clear and convincing doubts as to the authenticity or accuracy of the proffered evidence, the court may decline to admit such evidence.
8. If any provision of this section or its application to any particular person or circumstance is held valid, that provision or its application is severable and does not affect the validity of other provisions or applications of this section.
ABOUT THE AUTHORS
Susan H. Aprill is a shareholder of Fowler White Burnett in Miami. She has practiced law in South Florida since 1982, having received her B.S. from the University of Illinois in 1967 and J.D. from the University of Miami School of Law. She has worked on a variety of constitutional and commercial cases, including those involving media and First Amendment law in libel suits, reporters subpoena cases, newsrack litigation, cases concerning access to courts and public records, and privacy claims. She is a longtime member of the Bar's Media and Communications Law Committee and has served as editor of "Legal Issues Related to Public Access and the Press" prepared in conjunction with educational conferences for Florida circuit judges on press issues. Periodically, she has served as co-chair and panelist at the Bar's Annual Reporter's Workshops.
Sanford L. Bohrer is a member of the law firm of Holland & Knight LLP in Miami. He has been a member of The Florida Bar since 1973, having received his B.A. from Colgate University in 1970, and his J.D. from Columbia University in 1973. His clients include The Miami Herald, New Times, The Daily Business Review, Harcourt Publishing, Simon & Schuster, Suncoast Media Group, and WPBF in West Palm Beach (ABC). He is a contributor to the Media Law Resource Center's "50-State Survey on Media, Privacy and Related Law." Mr. Bohrer established the Florida First Amendment Hotline.
Authored by the Media & Communications Law Committee, the handbook serves as a resource guide for members of the media about topics in the legal profession.