Subpoena Protections and the Press

Subpoena Protections and the Press: Do Journalists Have to Reveal Sources Pursuant to a Civil Subpoena?

A reporter’s best secret is the information left unpublished: sources, documents, or unreleased details from a story. When a subpoena is served on a journalist, two federal and two state laws protect them from being compelled to disclose what they learned in the newsgathering process.

Please note that, while this article accurately describes applicable law on the subject covered at the time of its writing, the law continues to develop with the passage of time. Accordingly, before relying upon this article, care should be taken to verify that the law described herein has not changed.

Federal Protection

A reporter’s privilege under federal law presents itself in two forms: The United States Constitution and the Privacy Protection Act of 1980.

Constitution. A leading case discussing a journalist’s protection is Branzburg v. Hayes, 408 U.S. 665 (1972), in which the U.S. Supreme Court “engaged in a balancing of competing notions of social justice, determining that it was more important to protect the social good in law and order than to preserve the social good in the free flow of information.”[1]  Ultimately, the Court held that, in order for the journalist to claim First Amendment protection, the journalist must have a confidential relationship with the source, and by enforcing the subpoena, the civil or criminal court would seriously interfere with the newsgathering process.

Privacy Protection Act (PPA). Enacted in 1980, the PPA protects from searches and seizures the product of the newsgathering process. 42 U.S.C. §2000. The PPA is meant to protect journalists working on controversial or high-profile reports.

State Protection

Through its statutes, Arizona has long been considered lenient toward the media. In Branzburg, the U.S. Supreme Court listed Arizona as one of the 17 progressive states that protects the newsgathering rights of the press. Two statutes are available for the media to use as protection from disclosing their sources or responding to a subpoena: The Arizona Press Shield Law, and the Arizona Media Subpoena Law.

Press Shield Law. A.R.S. §12-2237 states:
“A person engaged in newspaper, radio, television or reportorial work, or connected with or employed by a newspaper, radio or television station, shall not be compelled to testify or disclose in a legal proceeding or trial or any proceeding whatever, or before any jury, inquisitorial body or commission, or before a committee of the legislature, or elsewhere, the source of information procured or obtained by him for publication in a newspaper or for broadcasting over a radio or television station with which he was associated or by which he is employed.”
This statute is narrowly tailored to those persons whose occupation is reporting the “news” – defined by Webster as “a report of recent events; material reported in a newspaper or news periodical or on a newscast; matter that is newsworthy.” Thus, the Arizona Press Shield Law protects the more traditional journalist “from being compelled to testify about or otherwise disclose confidential sources.” Matera v. Superior Court, 170 Ariz. 446, 450 (1992). In Matera, the Court entertained the idea of expanding the statute to apply to “anyone engaged in gathering and publishing information which is of topical and widespread interest” to the public, but it ultimately rejected the idea. Although it did recognize that there are times when a non-traditional journalist has been covered by the privilege (Bulow, 811 F.2d at 143), and the privilege may protect non-confidential information (Silkwood, 563 F.2d at 437), the Court refused an overall expansion of the statute’s applicability.

Media Subpoena Law. Unlike the Press Shield Law, the Media Subpoena Law is meant to protect the journalist, not the information gathered for journalistic purposes. Similar to the prior statute though, A.R.S. §12-2214 pertains to a “person engaged in gathering, reporting, writing, editing, publishing or broadcasting news to the public,” or someone involved in the more traditional form of journalism.

Pursuant to the statute, the journalist will have to comply with the subpoena if the six requirements for subpoena of media witnesses are met:
  1. Each item of documentary and evidentiary information sought from the person subpoenaed
  2. That the affiant or his representative has attempted to obtain each item of information from all other available sources, specifying which items the affiant has been unable to obtain.
  3. The identity of the other sources from which the affiant or his representative has attempted to obtain the information
  4. That the information sought is relevant and material to the affiant’s cause of action of defense.
  5. That the information sought is not protected by any lawful privilege.
  6. That the subpoena is not intended to interfere with the gathering, writing, editing, publishing, broadcasting and disseminating of news to the public as protected by the First Amendment.
If the subpoena is served without an attached affidavit, the subpoena has no effect. A.R.S. §12-2214(b). In Phoenix Newspapers, Inc. v. Reinstein, 240 Ariz. 442, 445 (2016), the Court explained that the affidavit “avows that the affiant has tried to obtain the information from all other available sources and that the information is not lawfully privileged.”

A.R.S. §§ 12-2214(c) and (d) explain, respectively, what to do if a motion to quash the subpoena is filed by the person subpoenaed, and the scope of limitation that this statute does not apply to the “attendance of a witness or the production of documentary evidence issued by or behalf of a grand jury or a magistrate during an investigative criminal proceeding.”
[1] “Smoke Screen: Are State Shield Laws Really Protecting Speech or Simply Providing Cover for Criminals Like the Serial Arsonist?” 33 Ariz. St. L.J. 909, 919 (2001).
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