Q: What is the law that protects confidential sources, and what does it mean for journalists in our newsroom?
A: Pennsylvania’s Shield Law offers robust protection against compelled disclosure of confidential source information, and federal law offers more limited protections based on a qualified right under the First Amendment.
The Pennsylvania Shield Law, states:
No person engaged in, connected with, or employed by any newspaper of general circulation or any press association or any radio or television station, or any magazine of general circulation, for the purpose of gathering, procuring, compiling, editing or publishing news, shall be required to disclose the source of any information procured or obtained by such person, in any legal proceeding, trial or investigation before any government unit.
This law provides journalists with an absolute privilege against the compelled disclosure of confidential sources of information. The Shield Law has been interpreted by the courts to include not only the names of reporters' confidential informants, but also documents, unpublished materials, inanimate objects, and all sources of information obtained by reporters that would disclose a confidential source. In cases where Pennsylvania law applies, reporters cannot be required to produce the names or identities of their informants, documents that would disclose their informants (such as invoices or letters), or other sources of information, even if they are subpoenaed to do so.
There are a few points about the Shield Law that journalists must understand. First, only confidential source information is protected. Once the source or the information is no longer confidential, such as once it is published or revealed to others, the protection ceases as to that information. Second, unpublished documentary information (including a reporter's notes) has been found discoverable by a plaintiff in a libel action where the documentary evidence did not reveal the identity of a confidential source. Journalists can redact any such evidentiary documents to eliminate confidential sources of information.
There is no federal Shield Law, but reporters have successfully argued in federal courts against compelled disclosure of confidential information based on a qualified First Amendment privilege. Courts in the Third Circuit analyze this qualified right by balancing the need for confidentiality versus the interest in disclosure. In a criminal matter, a party seeking information from a reporter must: 1) show efforts to obtain information from other sources; 2) show that the information can only be obtained from the journalist; and 3) show that the information is crucial to the claim. See US. v. Criden, 633 F.2d 346 (3d Cir. 1980). Journalists involved in state civil and criminal proceedings where the Shield Law is not applicable can raise First Amendment privilege defenses, but journalists should be aware that state courts typically follow Third Circuit precedent holding the constitutional privilege is slightly weaker in criminal cases because of the competing constitutional rights such as the right to fair trial and the need to address criminal activity. See Commonwealth v. Bowden, 838 A.2d 740 (Pa. 2003).
You can learn more about the Pennsylvania Shield Law in the PNA Newspaper Handbook and from the Reporters Committee for Freedom of the Press.
As always, this is not intended to be, nor should it be construed as, legal advice. Please contact the PNA Legal Hotline at (717) 703-3080 or your organization’s corporate counsel if a journalist receives a subpoena seeking confidential information.