Does Federal or State Law Apply to My Case?
A majority of the subpoenas served on reporters arise in state cases, with only ten percent coming from federal cases, according to the 1995 version of the Reporters Committee's ongoing subpoena survey, Agents of Discovery.
State trial courts follow the interpretation of state constitutional, statutory or common law from the state's highest court to address the issue. When applying a First Amendment privilege, state courts may rely on the rulings of the United States Supreme Court as well as the state's highest court.
Subpoenas in cases brought in federal courts present more complicated questions.
Each state has at least one federal court. When a federal district court is asked to quash a subpoena, it may apply federal law, the law of the state in which the federal court sits, or even the law of another state. For example, if a journalist from one state is subpoenaed to testify in a court in another state, the enforcing court will apply the state's "choice of law" rules to decide which law applies.
Federal precedent includes First Amendment or federal common law protection as interpreted by the United States Supreme Court, rulings of the federal circuit court of appeals for the district court's circuit, or earlier decisions by that same district court. There is no federal shield law.
The federal district court will apply the state courts' interpretation of state law in most circumstances. In the absence of precedent from the state's courts, the federal district court will follow prior federal court interpretations of the state's law. In actions involving both federal and state law, courts differ on whether federal or state law will apply.
Twelve federal circuits cover the United States. Each circuit has one circuit (appellate) court, and a number of district (trial) courts. The circuit courts must follow precedent established by the U.S. Supreme Court, but are not bound by other circuits' decisions. What follows is a general summary of how each of those circuits has interpreted the scope of a reporter's privilege under the First Amendment.
First Circuit (Maine, Massachusetts, New Hampshire and Rhode Island): Although the court has not articulated a specific standard, it nonetheless recognizes the need for balance between the interests of the news media and the right of criminal defendants to a fair trial. In a case that did not involve confidential information, the court held that, though the news media's concern about the burden of complying with subpoenas was legitimate, criminal defendants' need for information that might be used to impeach a key government witness outweighed the journalists' First Amendment interest in non-disclosure. (United States v. LaRouche Campaign)
Second Circuit (Connecticut, New York and Vermont): In civil cases, anyone seeking to enforce a subpoena against the news media must show that the material sought is "highly material and relevant," "necessary or critical to the maintenance of the claim," and "not obtainable from other available sources." (Baker v. F eEr F Investment) The same standard applies in criminal cases. (United States v. Burke)
Third Circuit(Delaware, New Jersey and Pennsylvania): The court recognizes a qualified common law privilege protecting reporters. In civil cases, courts must consider whether the information sought is material, relevant, necessary to the case and unavailable from other sources. (Riley v. City of Chester) The same standard applies in criminal cases. (United States v. Cuthbertson)
Fourth Circuit (Maryland, North Carolina, South Carolina, Virginia and West Virginia): The First Amendment protects journalists from being compelled to reveal the identities of confidential sources unless the information sought was relevant, unavailable from other sources, and there was a compelling interest in disclosure. (LaRouche v. NBC) The same standard applies to non-confidential information in civil cases where the news media is not a party. …