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REPORTER'S PRIVILEGE: 7TH CIR. The Reporters Committee for Freedom of the Press A chapter from our comprehensive compendium of information on the reporter's privilege —the right not to be compelled to testify or disclose sources and information in court — in each state andfederal circuit. The complete project can be viewed at www.rcfp.org/privilege Repor EFTA01205046 REPORTER'S PRIVILEGE COMPENDIUM TM CIR. Credits & Copyright This project was initially made possible by a generous grant from the Phillip L. Graham Fund. Published by The Reporters Committee for Freedom of the Press. Executive Director: Lucy A. Dalglish Editors: Gregg P. Leslie, Elizabeth Soja, Wendy Tannenbaum, Monica Dias, Dan Bischof Copyright 2002-2010 by The Reporters Committee for Freedom of the Press, 1101 Wilson Blvd., Suite 1100, Arlington, VA 22209. Phone: (703) 807-2100 Email: [email protected]. All rights reserved. Reproduction rights in individual state and federal circuit outlines are held jointly by the author of the outline and The Re- portersCommittee for Freedom of the Press. Rights for the collective work and other explanatory and introductory material are held by the Reporters Committee. Educational uses. Those wishing to reproduce parts of this work for educational and nonprofit uses can do so freely if they meet thefollowing conditions. Educational institutions: No charge is passed on to students, other than the direct cost of re- producing pages. Nonprofit groups: No fee is charged for the seminar or other meeting where this will be distributed, other than to cover direct expenses of the seminar. Distribution: This license is meant to cover distribution of printed copies of parts of this work. It should not be reproduced in another publication or posted to a Web site. Those needing to provide Web access can post links directly to the project on the Reporters Committee's site: http://www.rcfp.orglprivilege All oilier uses. Those wishing to reproduce materials from this work should contact the Reporters Committee to negotiate a reprint fee based on the amount of information and number of copies distributed. Reprints. This document will be available in various printed forms soon. Please check back for updates. or contact the Re- porters Committee for more information. Reporters Committee for Freedom of Mr Press Page EFTA01205047 REPORTER'S PRIVILEGE COMPENDIUM 7TH CIR. The Reporter's Privilege Compendium: An Introduction Since the first edition of this guide was published in 2002. it of the state, or supporters of criminal defendants, or as advocates would be difficult to say that things have gotten better for reporters for one side or the other in civil disputes. faced with subpoenas. Judith Miller spent 85 days in jail in 2005 Critics also contend that exempting journalists from the duty to for refusing to disclose her sources in the controversy over the out- testify will be detrimental to the administration of justice. and will ing of CIA operative Valerie Plame. Freelance videographer Josh result in criminals going free for a lack of evidence. But 35 states Wolf was released after 226 days in jail for refusing to testify about and the District of Columbia have shield laws, and the Department what he saw at a political protest. And at the time of this writing, of Justice imposes restrictions on federal agents and prosecutors former USA Today reporter Toni Locy is appealing her contempt who wish to subpoena journalists, and yet there has been no indica- conviction, which was set to cost her as much as $5.000 a day. for tion that the courts have stopped working or that justice has suf- not revealing her sources for a story on the anthrax investigations. fered. This recent round of controversies underscores a problem that Courts in Maryland. in fact. have managed to function with a journalists have faced for decades: give up your source or pay the reporter's shield law for more than a century. In 1896, after a re- price: either jail or heavy fines. Most states and federal circuits porter was jailed for refusing to disclose a source, a Baltimore have some sort of reporter's privilege —the right to refuse to testify journalists' club persuaded the General Assembly to enact legisla- —that allows journalists to keep their sources confidential. But in tion that would protect them from having to reveal sources' identi- every jurisdiction, the parameters of that right are different. Some- ties in court. The statute has been amended a few times —mainly to times. the privilege is based on a statute enacted by the legislature cover more types of information and include broadcast journalists —a shield law. In others. courts have found the privilege based on a once that medium was created. But the state has never had the need constitutional right. Some privileges cover non-confidential infor- to rescind the protection. mation. some don't. Freelancers are covered in some states. but not others. And the privilege made news internationally in December 2002 when the appeals court of the United Nations International Crimi- In addition. many reporters don't work with attorneys who are nal Tribunal decided that a qualified reporter's privilege should be familiar with this topic. Even attorneys who handle a newspaper's applied to protect war correspondents from being forced to provide libel suits may not be familiar with the law on the reporter's privi- evidence in prosecutions before the tribunal. lege in the state. Because of these difficulties. reporters and their lawyers often don't have access to the best information on how to fight a subpoena. The Reporters Committee for Freedom of the The hows & whys of the reporter's privilege Press decided that something could be done about this. and thus this project was born. Compiled by lawyers who have handled these In the course of gathering news. journalists frequently rely on cases an d helped shape the law in their states and federal circuits, confidential sources. Many sources claim that they will be subject this guide is meant to help both journalists who want to know more to retribution for exposing matters of public importance to the press about the reporter's privilege and lawyers who need to know the ins unless their identity remains confidential. and outs of getting a subpoena quashed. Doctor-patient. lawyer-client and priest-penitent relationships Journalists should note that reading this guide is not meant as a have long been privileged, allowing recipients to withhold confi- substitute for working with a licensed attorney in your state when dential information learned in their professional capacity. However. you try to have a subpoena quashed. You should always consult an the reporter's privilege is much less developed, and journalists are attorney before trying to negotiate with a party who wants to obtain frequently asked to reveal confidential sources and information your testimony or when appearing in court to get a subpoena they have obtained during newsgathering to attorneys, the govern- quashed or testifying. If your news organization does not have an ment and courts. These 'requests" usually come from attorneys for attorney, or if you are not affiliated with an established organiza- the government or private litigants as demands called subpoenas. tion. the Reporters Committee can help you try to find an attorney In the most recent phase of a five-year study on the incidence of in your area. subpoenas served on the news media, Agents of Discovery. The Reporters Committee for Freedom of the Press reported that 1.326 subpoenas were served on 440 news organizations in 1999. For- Above the law? ty-six percent of all news media responding said they received at Outside of journalism circles, the reporter's privilege suffers least one subpoena during 1999. from an image problem. Critics often look at reporter's shield laws In criminal cases, prosecutors argue that reporters. like other and think that journalists are declaring that they are "above the citizens. are obligated to provide relevant evidence concerning the law." violating the understood standard that a court is entitled to commission of a crime. Criminal defendants argue that a journalist "every man's evidence." as courts themselves often say. has information that is essential to their defense. and that the Sixth But courts have always recognized the concept of 'privileges." Amendment right to a fair trial outweighs any First Amendment allowing certain individuals to refuse to testify, out of an acknowl- right that the reporter may have. Civil litigants may have no con- edgment that there are societal interests that can trump the demand stitutional interest to assert, but will argue that nevertheless they are for all evidence. Journalists need to emphasize to both the coons entitled to all evidence relevant to their case. and the public that they are not above the law, but that instead they When reporters challenge subpoenas. they argue that they must must be able to remain independent, so that they can maintain their be able to promise confidentiality in order to obtain information on traditional role as neutral watchdogs and objective observers. When matters of public importance. Forced disclosure of confidential or reporters are called into court to testify for or against a party. their unpublished sources and information will cause individuals to re- credibility is harmed. Potential sources come to see them as agents Reporters Committee for Freedom of the Press Page EFTA01205048 REPORTER'S PRIVILEGE COMPENDIUM 7TH CIR. fuse to talk to reporters. resulting in a - chilling effect" on the free sented from the Court's opinion and said that the First Amendment flow of information and the public's right to know. provided journalists with almost complete immunity from being compelled to testify before grand juries. gave the qualified privilege When asked to produce their notes. documents, or other un- issue a majority. Although the high court has not revisited the issue. published material obtained during news gathering. journalists ar- almost all the federal circuits and many state courts have acknowl- gue that these subpoenas intrude on the editorial process. and thus edged at least some form of a qualified constitutional privilege. violate their First Amendment right to speak without fear of state interference. Some litigants who request information from the me- However, some courts, including the federal appeals court in dia are simply lazy. Rather than investigating to find appropriate New Orleans (5th Cir.). have recently interpreted Bramhurg as witnesses. these litigants find it simpler and cheaper to compel holding that the First Amendment protects the media from subpoe- journalists to reveal their sources or to hand over information. nas only when the subpoenas are being used to harass the press. (United States v. Smith. 135 F.3d 963 (5th Cir. 1998)). But journalists also have legitimate reasons to oppose subpoenas over published. non-confidential information. Responding to such State constitutions, common law and court rules. Many states subpoenas consumes staff time and resources that should be used have recognized a reporter's privilege based on state law. For ex- for reporting and editing. ample. New York's highest court recognized a qualified reporter's privilege under its own state constitution, protecting both confiden- If a court challenge to a subpoena is not resolved in the report- tial and non-confidential materials. (O'Neill v. Oakgrove Construc- er's favor. he or she is caught between betraying a source or risking tion Inc•., 71 M.2d 521 (1988)). Others states base a reporter's a contempt of court citation, which most likely will include a fine privilege on common law. Before the state enacted a shield law in or jail time. 2007. the Supreme Court in Washington state recognized a quali- Most journalists feel an obligation to protect their confidential fied reporter's privilege in civil cases, later extending it to criminal sources even if threatened with jail time. When appeals have been trials. (Senear v. Daily Journal-American. 97 Wash.2d 148. 641 exhausted. the decision to reveal a source is a difficult question of P.2d 1180 (1982). on remand, 8 Media L. Rep. 2489 (Wash. Super. journalism ethics. further complicated by the possibility that a con- Ct. 1982)). And in a third option. courts can create their own rules fidential source whose identity is revealed may try to sue the re- of procedure. The Utah Supreme Court adopted a reporter's privi- porter and his or her news organization under a theory of promis- lege in its court rules in 2008. as did the New Mexico high court sory estoppel. similar to breach of contract. The U.S. Supreme years before. Court has held that such suits do not violate the First Amendment Even in the absence of an applicable shield law or rights of the media. (Cohen v. Cowles Media Co.. 501 U.S. 663 court-recognized privilege, journalists occasionally have been suc- (1991)) cessful in persuading courts to quash subpoenas based on general- ly-applicable protections such as state and federal rules of evidence. The sources of the reporter's privilege which allow the quashing of subpoenas for information that is not relevant or where the effort to produce it would be too cumber- First Amendment protection. The U.S. Supreme Court last con- some. sidered a constitutionally based reporter's privilege in 1972 in Branthurg v. Hayes. 408 U.S. 665 (1972). Justice Byron White. Statutory protection. In addition to case law. 35 states and the joined by three other justices. wrote the opinion for the Court. District of Columbia have enacted statutes —shield laws —that holding that the First Amendment does not protect a journalist who give journalists some form of privilege against compelled produc- has actually witnessed criminal activity from revealing his or her tion of confidential or unpublished information. The laws vary in information to a grand jury. However a concurring opinion by Jus- detail and scope from state to state. but generally give greater pro- tice Lewis Powell and a dissenting opinion by Justice Potter Stew- tection to journalists than the state or federal constitution. according art recognized a qualified privilege for reporters. The privilege as to many coups. described by Stewart weighs the First Amendment rights of report- However. shield laws usually have specific limits that exclude ers against the subpoenaing party's need for disclosure. When bal- some journalists or certain material from coverage. For instance. ancing these interests. courts should consider whether the infor- many of the statutes define "journalist" in a way that only protects mation is relevant and material to the party's case, whether there is those who work full-time for a newspaper or broadcast station. a compelling and overriding interest in obtaining the information. Freelance writers, book authors. Internet journalists. and many and whether the information could be obtained from any source others are left in the cold. and have to rely on the First Amendment other than the media. In some cases, courts require that a journalist for protection. Broad exceptions for eyewitness testimony or for show that he or she promised a source confidentiality. libel defendants also can remove protection from journalists, even Two other justices joined Justice Stewan's dissent. These four though these situations often show the greatest need for a reporter's justices together with Justice William O. Douglas. who also dis- privilege. Reporters Committee for Freedom of Mr Press Page EFTA01205049 REPORTER'S PRIVILEGE COMPENDIUM MI CIR. The Reporter's Privilege Compendium: Questions and Answers What is a subpoena? tional privilege that will protect you. Each state is different, and many courts do not recognize the privilege in certain situations. A subpoena is a notice that you have been called to appear at a trial, deposition or other coup proceeding to answer questions or to Whether or not a statutory or other privilege protects you in a supply specified documents. A coup may later order you to do so particular situation may depend on a number of factors. For exam- and impose a sanction if you fail to comply. ple. some shield laws provide absolute protection in some circum- stances, but most offer only a qualified privilege. A qualified priv- Do I have to respond to a subpoena? ilege generally creates a presumption that you will not have to In a word. yes. comply with a subpoena. but it can be overcome if the subpoenaing Ignoring a subpoena is a bad idea. Failure to respond can lead party can show that information in your possession is essential to to charges of contempt of court. fines, and in some cases. jail time. the case, goes to the heart of the matter before the court, and can- Even a court in another state may. under some circumstances, have not be obtained from an alternative, non-journalist source. authority to order you to comply with a subpoena. Some shield laws protect only journalists who work full-time What are my options? for a newspaper. news magazine, broadcaster or cablecaster. Free- lancers, book authors, scholarly researchers and other Your first response to a subpoena should be to discuss it with "non-professional" journalists may not be covered by some stat- an attorney if at all possible. Under no circumstances should you utes. comply with a subpoena without first consulting a lawyer. It is imperative that your editor or your news organization's legal Other factors that may determine the scope of the privilege in- counsel be advised as soon as you have been served. clude whether the underlying proceeding is criminal or civil. whether the identity of a confidential source or other confidential Sometimes the person who subpoenaed you can be persuaded information is involved, and whether you or your employer is al- to withdraw it. Some attorneys use subpoenas to conduct "fishing ready a party to the underlying case, such as a defendant in a libel expeditions." broad nets cast out just to see if anything comes suit. back. When they learn that they will have to fight a motion to quash their subpoenas. lawyers sometimes drop their demands The decision to fight may not be yours alone. The lawyer may altogether or agree to settle for less than what they originally asked have to consider your news organization's policy for complying for, such as an affidavit attesting to the accuracy of a story rather with subpoenas and for revealing unpublished information or than in-court testimony. source names. If a subpoena requests only published or broadcast material. your newspaper or station may elect to turn over copies Sonic news organizations. particularly broadcasters whose aired of these materials without dispute. If the materials sought are un- videotape is subpoenaed. have deflected burdensome demands by published. such as notes or outtakes. or concern confidential agreeing to comply. but charging the subpoenaing party an appro- sources, it is unlikely that your employer has a policy to turn over priate fee for research time, tape duplication and the like. these materials —at least without first contesting the subpoena. If the person who subpoenaed you won't withdraw it, you may Every journalist should be familiar with his or her news organ- have to fight the subpoena in court. Your lawyer will file a motion ization's policy on retaining notes. tapes and drafts of articles. You to quash. which asks the judge to rule that you don't have to com- should follow the ivies and do so consistently. If your news organ- ply with the subpoena. ization has no formal policy, talk to your editors about establishing If the court grants your motion. you're off the hook —unless one. Never destroy notes. tapes. drafts or other documents once that order is itself appealed. If your motion isn't granted. the court you have been served with a subpoena. will usually order you to comply. or at the very least to disclose the In some situations, your news organization may not agree that demanded materials to the court so the judge may inspect them and sources or materials should be withheld, and may try to persuade determine whether any of the materials must be disclosed to the you to reveal the information. If the interests of the organization party seeking them. That order can itself be appealed to a higher differ from yours. it may be appropriate for you to seek separate court. If all appeals are unsuccessful, you could face sanctions if counsel. you continue to defy the court's order. Sanctions may include fines imposed on your station or newspaper or on you personally. or Can a judge examine the Information before ordering me to imprisonment. comply with a subpoena? In many cases a party may subpoena you only to intimidate Some states require or at least allow judges to order journalists you. or gamble that you will not exercise your rights. By consult- to disclose subpoenaed information to them before revealing it to ing a lawyer and your editors, you can decide whether to seek to the subpoenaing party. This process. called in camera review, al- quash the subpoena or to comply with it. This decision should be lows a judge to examine all the material requested and determine made with full knowledge of your rights under the First Amend- whether it is sufficiently important to the case to justify compelled ment. common law, state constitution or statute. production. The state outlines will discuss what is required or al- lowed in your state. They won't drop IL I want to fight it. Do I have a chance? Does federal or state law apply to my case? This is a complicated question. A majority of the subpoenas served on reporters arise in state If your state has a shield law, your lawyer must determine cases, with only eight percent coming in federal cases, according to whether it will apply to you. to the information sought and to the the Reporters Committee's 1999 subpoena survey. Agents of Dis- type of proceeding involved. Even if your state does not have a corny. shield law, or if your situation seems to fall outside its scope. the state's courts may have recognized some common law or constitu- Reporters Committee for Freedom of the Press Page EFTA01205050 REPORTER'S PRIVILEGE COMPENDIUM 7TH CIR. State trial courts follow the interpretation of state constitutional. Do the news media have any protection against search war- statutory or common law from the state's highest court to address rants? the issue. When applying a First Amendment privilege, state courts Subpoenas are not the only tool used to obtain information from may rely on the rulings of the United States Supreme Court as well the news media. Sometimes police and prosecutors use search as the state's highest court. warrants, allowing investigators to enter newsrooms and search for Subpoenas in cases brought in federal courts present more evidence directly rather than merely demanding that journalists complicated questions. Each state has at least one federal court. release it. When a federal district court is asked to quash a subpoena. it may The U.S. Supreme Court held that such searches do not violate apply federal law, the law of the state in which the federal court the First Amendment. Zurcher v. Stanford Daily. 436 U.S. 547 sits, or even the law of another state. For example. if a journalist (1978). Congress responded by passing the federal Privacy Protec- from one state is subpoenaed to testify in a court in another state. tion Act in 1980. (42 U.S.C. 2000aa) the enforcing court will apply the state's "choice of law' rules to decide which law applies. In general. the Act prohibits both federal and state officers and employees from searching or seizing journalists' "work product" or Federal precedent includes First Amendment or federal com- "documentary materials" in their possession. The Act provides mon law protection as interpreted by the United States Supreme limited exceptions that allow the government to search for certain Court. rulings of the federal circuit court of appeals for the district types of national security infomtation. child pornography. evidence court's circuit, or earlier decisions by that same district court. that the journalists themselves have committed a crime, or materi- There is no federal shield law, although as of May 2008 a bill had als that must be immediately seized to prevent death or serious passed the House and was moving to the Senate floor. bodily injury. "Documentary materials" may also be seized if there The federal district court will apply the state courts' interpreta- is reason to believe that they would be destroyed in the time it took tion of state law in most circumstances. In the absence of precedent to obtain them using a subpoena. or if a court has ordered disclo- from the state's courts, the federal district court will follow prior sure. the news organization has refused and all other remedies have federal court interpretations of the state's law. In actions involving been exhausted. both federal and state law, courts differ on whether federal or state Even though the Privacy Protection Act applies to state law en- law will apply. forcement officers as well as federal authorities, many states, in- Twelve federal circuits cover the United States. Each circuit has cluding California. Connecticut. Illinois. Nebraska, New Jersey. one circuit (appellate) court, and a number of district (trial) courts. Oregon. Texas and Washington. have their own statutes providing The circuit courts must follow precedent established by the U.S. similar or even greater protection. (See section IX.A. in the state Supreme Court. but are not bound by other circuits' decisions. outlines.) Other states. such as Wisconsin. require that search war- rants for documents be directed only at parties suspected of being Are there any limits on subpoenas from federal agents or "concerned in the commission" of a crime. which generally ex- prosecutors? empts journalists. Ever since 1973. the Attorney General of the United States has If law enforcement officers appear with a warrant and threaten followed a set of guidelines limiting the circumstances in which to search your newsroom unless you hand over specific materials any agents or employees of the Department of Justice, including to them, contact your organization's attorney immediately. Ask the federal prosecutors and FBI agents. may issue subpoenas to mem- officers to delay the search until you have had an opportunity to bers of the news media or subpoena journalists' telephone records confer with your lawyer. If the search proceeds. staff photogra- from third parties. (28 C.F.R. 50.10) phers or a camera crew should record it. Under the guidelines, prosecutors and agents must obtain per- Although the news organization staff may not impede the mission from the Attorney General before subpoenaing a member search. they are not required to assist with it. But keep in mind that of the news media. Generally. they must exhaust alternative the warrant will probably list specific items to be seized. and you sources for information before doing so. The guidelines encourage may decide it is preferable to turn over a particular item rather than negotiation with the news media to avoid unnecessary conflicts. to allow police to ransack desks and file cabinets or seize comput- and specify that subpoenas should not be used to obtain "peripher- ers. al. nonessential or speculative" information. After the search is over, immediately consult your attorney In addition, journalists should not be questioned or arrested by about filing a suit in either federal or state court. It is important to Justice employees without the prior approval of the Attorney Gen- move quickly. because you may be able to obtain emergency re- eral (unless "exigent circumstances preclude prior approval") and view by a judge in a matter of hours. This could result in your agents are not allowed to seek an arrest warrant against a journalist seized materials being taken from the law enforcement officials or present evidence to a grand jury against a journalist without the and kept under seal until the dispute is resolved. same approval. Another option allows you to assert your claim in an adminis- Employees who violate these guidelines may receive an admin- trative proceeding. which may eventually lead to sanctions against istrative reprimand, but violation does not automatically render the the official who violated the act. You would not receive damages. subpoena invalid or give a journalist the right to sue the Justice however. Your attorney can help you decide which forum will Department. offer the best remedy in your situation. The guidelines do not apply to government agencies that are not Whichever option you choose, a full hearing will vindicate your part of the federal Department of Justice. Thus agencies like the rights in nearly every case, and you will be entitled to get your National Labor Relations Board are not required to obtain the At- materials back and in some cases. monetary damages including torney General's permission before serving a subpoena upon a your attorney's fees. member of the news media. Reporters Committee for Freedom of the Press Page EFTA01205051 REPORTER'S PRIVILEGE COMPENDIUM 7TH CIR. The Reporter's Privilege Compendium: A User's Guide This project is the most detailed examination available of the porting the statement and provides a shorthand method of identi- reporter's privilege in every state and federal circuit. It is presented fying that authority, should you need to locate it. primarily as an Internet document (found at Legal citation form also indicates where the law can be found www.rcfp.org/privilege) for greater flexibility in how it can be in official reporters or other legal digests. Typically. a cite to a used. Printouts of individual state and circuit chapters are made court case will be followed by the volume and page numbers of a available for readers' convenience. legal reporter. Most state cases will be found in the state reporter. a Every state and federal section is based on the same standard larger regional reporter, or both. A case cite reading 123 F.2d 456 outline. The outline starts with the basics of the privilege, then the means the case could be found in the Federal Reports, second se- procedure and law for quashing a subpoena. and concludes with ries. volume 123. starting at page 456. In most states, the cites will appeals and a handful of other issues. be to the official reporter of state court decisions or to the West Publishers regional reporter that covers that state. There will be some variations on the standard outline from state to state. Some contributors added items within the outline, or Note that the complete citation for a case is often given only omitted subpoints found in the complete outline which were not once, and subsequent cites look like this: "Jackson at 321." This relevant to that state's law. Each change was made to fit the needs means that the author is referring you to page 321 of a case cited of a particular state's laws and practices. earlier that includes the name Jackson. Because this outlines were written for each state, yet searches and comparisons result in vari- For our many readers who are not lawyers. This project is pri- ous states and sections being taken out of the sequence in which marily here to allow lawyers to fight subpoenas issued to journal- they were written, it may not always be clear what these second ists, but it is also designed to help journalists understand the re- references refer to. Authors may also use the words supra or infra porter's privilege. (Journalists should not assume that use of this to refer to a discussion of a case appearing earlier or later in the book will take the place of consulting an attorney before dealing outline, respectively. You may have to work backwards through with a subpoena. You should contact a lawyer if you have been that state's outline to find the first reference in some cases. served with a subpoena.) Although the guides were written by lawyers. we hope they are useful to and readable by nonlawyers as We have encouraged the authors to avoid "legalese" to make well. However, some of the elements of legal writing may be un- this guide more accessible to everyone. But many of the issues are familiar to lay readers. A quick overview of some of these customs necessarily technical and procedural, and removing all the legalese should suffice to help you over any hurdles. would make the guides less useful to lawyers who are trying to get subpoenas quashed. Lawyers are trained to give a legal citation for most statements of law. The name of a court case or number of a statute may there- Updates. This project was first posted to the Web in December fore be tacked on to the end of a sentence. This may look like a 2002. The last major update of all chapters was completed in Sep- sentence fragment. or may leave you wondering if some infor- tember 2007. As the outlines are updated. the copyright notice on mation about that case was omitted. Nothing was left out: inclusion the bottom of the page will reflect the date of the update. All out- of a legal citation provides a reference to the case or statute sup- lines will not be updated on the same schedule. Reporters Committee for Freedom of Mr Press Page EFTA01205052 REPORTER'S PRIVILEGE COMPENDIUM 7TH CIR. REPORTER'S PRIVILEGE COMPENDIUM 7TH CIR. Prepared by: Kenneth E. Kraus Schopf & Weiss, LLP One South Wacker Drive 28th Floor Chicago, IL 60606-4617 (312) 701-9300 I. Introduction: History & Background 2 V. Procedures for issuing and contesting subpoenas 7 II. Authority for and source of the right 2 A. What subpoena server must do 7 A. Shield law statute Error! Bookmark not defined. B. How to Quash 7 B. State constitutional provision Error! Bookmark not VI. Substantive law on contesting subpoenas 9 defined. A. Burden, standard of proof 9 C. Federal constitutional provision Error! Bookmark not B. Elements 9 defined. C. Waiver or limits to testimony II D. Other sources Error! Bookmark not defined. VII. What constitutes compliance9 12 III. Scope of protection 2 A. Newspaper articles 12 A. Generally 2 B. Broadcast materials 12 B. Absolute or qualified privilege 2 C. Testimony vs. affidavits 12 C. Type of case 2 D. Non-compliance remedies 12 D. Information and/or identity of source 3 VIII. Appealing 13 E. Confidential and/or non-confidential information 3 A. Timing 13 F. Published and/or non-published material 4 B. Procedure 13 G. Reporter's personal observations 5 IX. Other issues 14 H. Media as a party 5 A. Newsroom searches 14 I. Defamation actions 5 B. Separation orders 14 IV. Who is covered 6 C. Third-party subpoenas 14 A. Statutory and case law definitions 6 D. The source's rights and interests 15 B. Whose privilege is it? 7 Reporters Committee for Freedom of Mr Press Page EFTA01205053 REPORTER'S PRIVILEGE COMPENDIUM