New Shield Law Prohibits Most Subpoenas to Reporters
| Publication year | 1991 |
| Pages | 891 |
1991, May, Pg. 891. New Shield Law Prohibits Most Subpoenas to Reporters
A new Colorado law prohibits litigants from subpoenaing news reporters except under limited circumstances. The reporters shield law(fn1) codifies a privilege that already existed under the case law outside Colorado, which interpreted the First Amendment of the U.S. Constitution.
The new Colorado law provides that in most cases, reporters can be subpoenaed to testify or to produce documents or other materials only in cases where the party issuing the subpoena demonstrates by a preponderance of the evidence that (1) the information sought from the reporter is "directly relevant to a substantial issue involved in the proceeding," (2) the information "cannot be obtained through any other reasonable means," and (3) a strong interest of the party issuing the subpoena outweighs the interests under the First Amendment of the reporter and the public.(fn2)
Lawyers who wish to obtain information from reporters can save time and money if they have a basic understanding of how the reporters shield law works and why it was enacted. This article briefly discusses the background of the shield law, summarizes the key provisions and provides some practical suggestions for its application.
Before the enactment of the shield law, case law in the federal courts and in many other states recognized that re-porters have a qualified privilege against subpoenas. However, no statutes or appellate decisions in Colorado explicitly recognized this privilege. The shield law was enacted to recognize that reporters do have a qualified privilege against subpoenas in most situations and to eliminate unnecessary litigation.
Reporters maintain that they need special protection from subpoenas, partly because they are subpoenaed to testify far more often than other citizens. A reporter's job is to record and report accurately on events that frequently lead to litigation. As a result, before enactment of the shield law, some reporters were subpoenaed as many as twenty or thirty times per year.(fn3)
Reporters also maintain that being subpoenaed causes them to suffer more serious consequences than do other persons who are subpoenaed. Subpoenaing reporters tends to inhibit enterprising reporting and discourage potential sources from talking openly with reporters.
The reporters shield law prevents wasteful litigation by codifying the existing common law under the First Amendment. This, in turn, avoids unnecessary disputes about what that law is. The codification also allows the parties to focus their attention on how to apply the qualified reporters' privilege in their particular cases.
The source of the new Colorado shield law is the qualified privilege recognized in numerous court decisions. The leading U.S. Supreme Court case is Branzburg v. Hayes.(fn4) In Branzburg, a reporter was subpoenaed to testify before a federal grand jury. Although the Court ruled that the reporter was required to comply with the subpoena, five justices recognized that the First Amendment interests must be balanced in each case.
The Branzburg decision spawned numerous opinions by state and federal courts adopting a qualified reporters' privilege. In fact, every federal circuit court to address the issue has endorsed a qualified reporters' privilege.(fn5) Twenty-five states have done the same.(fn6)
The common law reporters' privilege contains essentially the same elements as the new Colorado shield law. The information sought must be (1) centrally important to the case, (2) unavailable from alternative sources and (3) needed such that the need outweighs the First Amendment interests at stake.(fn7) The qualified privilege has been applied in civil(fn8) and criminal cases.(fn9) It protects both confidential and nonconfidential sources.(fn10)
Many Colorado trial courts have adopted the qualified reporters' privilege.(fn11) However, the Colorado appellate courts have...
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