You kept material off-the-record, but a subpoena demands it anyway.

In 1972, the U.S. Supreme Court ruled in Branzburg v. Hayes that the First Amendment does not protect journalists from a court order to testify or disclose information when served with a criminal subpoena.

Branzburg, a newspaper reporter, was called twice to testify before state grand juries that were investigating drug crimes. He refused to testify and potentially disclose the identities of his confidential sources.

The Supreme Court ruled that when reporters receive information from sources in confidence, there is no privilege that allows them to withhold that information during a government investigation and that requiring reporters to disclose confidential information to grand juries served a “compelling” and “paramount” state interest.

Although the court found no privilege in a criminal investigation, the Ninth Circuit and other federal and state courts have recognized a limited privilege that protects journalists from disclosing information in a civil case.

• In Shoen v. Shoen, the U.S. Court of Appeals for the Ninth Circuit found that society’s interest in protecting the integrity of the newsgathering process and ensuring the free flow of information to the public is an important enough interest to justify some “incidental sacrifices of sources of facts.”
• As the U.S. Court of Appeals for the Second Circuit explained in Gonzalez v. National Broadcasting Co.: “If the parties to any lawsuit were free to subpoena the press at will, it would likely become standard operating procedure for those litigating against an entity that had been the subject of press attention to sift through press files in search of information supporting their claims. The resulting wholesale exposure of press files to litigant scrutiny would burden the press with heavy costs of subpoena compliance and could otherwise impair its ability to perform its duties — particularly if potential sources were deterred from speaking to the press, or insisted on remaining anonymous, because of the likelihood that they would be sucked into litigation.”
• The privilege recognized in Shoen is not limited to traditional “news” reporters but extends to all journalists engaged in gathering information for dissemination to the public.

The test for whether a person can invoke the privilege is whether he or she intended to use the material to disseminate to the public and the person had that intent at the start of the newsgathering process.

For instance, in In re Madden, the U.S. Court of Appeals for the Third Circuit held that the reporter’s privilege did not protect an employee of World Championship Wrestling (“WCW”) against compelled disclosure of sources’ identities. The WCW employee had admitted he was “an entertainer, not a reporter.” During a deposition in an unfair business practices lawsuit, Madden refused to identify the sources of allegedly false and misleading statements by claiming that his sources were confidential and protected by the reporter’s privilege.

The court disagreed, saying that Madden’s activities were not reporting. Rather “Madden’s work amounts to little more than creative fiction about admittedly fictional wrestling characters who have dramatic and ferocious-sounding names like ‘Razor Ramon’ and ‘Diesel.’”

Even if a journalist can claim the privilege, it is not absolute.

While the federal privilege may protect some journalists, others may be able to invoke their own state constitutions (for example, Washington and New York) or state statutes known as journalist shield laws. There is no federal shield law, despite efforts to have one passed.