It is generally understood that journalists have some protection from being compelled (usually by a subpoena) to reveal their sources or from having to produce their notes and other work product. In Wisconsin, journalists have just that “qualified privilege based on Article I, section 3, of the Wisconsin Constitution not to disclose information gathered by them in the course of their journalistic endeavors.” Kurzynski v. Spaeth, 196 Wis.2d 182, 191, 538 N.W.2d 554 (Ct. App. 1995) (citing Green Bay Newspaper Co. v. Circuit Court, 113 Wis.2d 411, 419, 335 N.W.2d 367, 371-2 (1983)).
In civil litigation, “[a]pplication of a qualified journalist’s privilege…requires a balancing between, on the one hand, the need to insulate journalists from undue intrusion into their news-gathering activities and, on the other hand, litigants’ need for every person’s evidence.” Id. at 196 (citing Shoen v. Shoen, 48 F.3d 412, 415-6 (9th Cir. 1995)). The balancing of interests must be analyzed regardless of whether or not information was obtained under a promise of confidentiality, because the press has been acknowledged as a “vital source of public information” whose news gathering activities are, therefore, protected by the First Amendment. See id.
To determine whether the journalistic privilege will apply to prevent the compelled disclosure of information from a journalist, the Shoen Court used the following test:
[W]here information sought is not confidential, a civil litigant is entitled to requested discovery notwithstanding a valid assertion of the journalist’s privilege [that is, that the person asserting the privilege is a “journalist”] by a nonparty only upon a showing that the requested material is: (1) unavailable despite exhaustion of all reasonable alternative sources; (2) noncumunlative; and (3) clearly relevant to an important issue in the case. We note that there must be a showing of actual relevance; a showing of potential relevance will not suffice.
Kurzynski, 196 Wis.2d at 196-7; see also Riley v. City of Chester, 612 F.2d 708, 717 (3rd Cir. 1979) (holding that the information seeker must demonstrate both that she has “exhausted other means of obtaining the information,” and that the information sought “provide[s] a source of crucial information going to the heart of the (claim)”) (citation omitted).
As a result of the Wisconsin Constitution and the Kurzynski decision, journalists in Wisconsin enjoy a substantial amount of protection from intrusion into their journalistic endeavors by litigants. That protection is rooted in state law, and is not, therefore, necessarily applicable in Wisconsin’s federal courts.
Numerous federal courts similarly “recognize” journalistic privilege. See, e.g.,In re Madden, 151 F.3d 125, 128-29 (3d Cir.1998); United States v. Smith, 135 F.3d 963, 971 (5th Cir. 1998); Shoen v. Shoen, 5 F.3d 1289, 1292-93 (9th Cir.1993); In re Shain, 978 F.2d 850, 852 (4th Cir. 1992); United States v. LaRouche Campaign, 841 F.2d 1176, 1181-82 (1st Cir.1988); von Bulow v. von Bulow, 811 F.2d 136, 142 (2d Cir. 1987); United States v. Caporale, 806 F.2d 1487, 1504 (11th Cir. 1986). Generally speaking, these federal courts rely on the United States Supreme Court’s decision in Branzburg v. Hayes, 408 U.S. 665, 92 S.Ct. 2646 (1972), in their recognition of journalistic privilege.
The governing federal court for Wisconsin, however, the Seventh Circuit departed from the prevailing majority of federal circuits. The Seventh Circuit, in McKevitt v. Pallasch, 339 F.3d 530, 532 (7th Cir. 2003), chastised its counterparts as “ignor[ing]” the Branzburg decision or “audaciously declar[ing] that Branzburg actually created a reporter’s privilege.”
Branzburg clearly held that there was no reason that “reporters, any more than other citizens, should be excused from furnishing information that may help [a] grand jury in arriving at its initial determinations.” Branzburg, 408 U.S. at 702. However, the Branzburg court acknowledged the potential limitation of its decision, noting that “news gather is not without its First Amendment protections, and [that] grand jury investigations if instituted or conducted other than in good faith, would pose wholly different issues for resolution under the First Amendment.” Id. at 707.
The McKevitt Court strictly applied the decision of the Branzburg case (and not the acknowledgement of potential limitations of it) and concluded that it did “not see why there need[s] to be special criteria merely because the possessor of the documents or other evidence sought is a journalist.” Id. at 533 (citations omitted). By doing so, the Seventh Circuit McKevitt Court denied recognition of any journalistic privilege in the federal courts within its district, including those in Wisconsin.
As a result of all of the above, while journalists in Wisconsin enjoy journalistic privilege to be enforced by the state courts, there is no such similar protection in the federal courts. Accordingly, the availability of a journalistic privilege to reporters in Wisconsin will, strangely enough, be determined by the court in which they may find themselves.