shield law

shield law, in the United States, any law that protects journalists against the compelled disclosure of confidential information, including the identities of their sources, or the forced surrender of unpublished written material collected during news gathering, such as notes.

There are two main justifications of shield laws. First, because individuals who might provide confidential or sensitive information to journalists are unlikely to do so unless their anonymity can be guaranteed, shield laws are essential to the practice of investigative journalism and thus to the existence of a free press, which is guaranteed by the First Amendment. Second, the obligation to respond to subpoenas demanding the surrender of confidential documents would interfere with the editorial process and in other ways infringe upon journalists’ freedom of speech, which is also protected by the First Amendment.

In Branzburg v. Hayes (1972), the U.S. Supreme Court ruled (5–4) that, although the First Amendment protects the professional activities of journalists, it does not grant them immunity from grand jury subpoenas seeking information relevant to a criminal or civil investigation. Such a privilege can be established only through legislation, the court held. Following the ruling, several states adopted shield laws (or modified existing shield laws) to enact in varying forms the qualified immunity endorsed by Justice Potter Stewart, whose dissent in Branzburg was joined by two other justices (a fourth justice, William O. Douglas, filed his own dissent). According to Stewart, it is legally appropriate to seek confidential information from journalists only if (1) the information is highly relevant to the investigation, (2) the government has a compelling and overriding interest in obtaining the information, and (3) the information cannot be obtained through other means. (In some states, approximately equivalent protections were adopted through case law.) Some state shield laws applied to both civil cases and criminal cases, whereas others applied only to civil cases.

Shield laws now exist in more than 30 states and in the District of Columbia. There is no corresponding federal statute, however, despite periodic attempts in Congress to pass one.