Mass Media Law Tutorial
June 9, 2005
Research Paper #2 – Confidentiality and the Media
“Suppose a newsman or reporter should see the President of the United States or the
Governor of the Commonwealth assassinated upon the street; or see a bank robbery in
progress; or see a forcible rape committed. Under the construction of the statute sought
by the petitioner, such a reporter could not be compelled to identify the perpetrator of the
crime. We do not think the legislature ever intended such a result”
(Branzburg v. Pound, 461 S.W. 2d 345).
In the landmark case Branzburg v. Hayes, Louisville Courier-Journal reporter
Paul Branzburg used unnamed sources to describe a homemade hash lab in his Nov. 15,
1969 article “The Hash They Make Isn’t to Eat”. Local and federal narcotics agents
wanted to pursue the sources, in relation to their illegal drug practices. Branzburg was
subpoenaed before a grand jury, though he never showed. Instead, he moved to Michigan
out of the fear of prosecution. Kentucky’s reporter shield law says no journalist can be
forced to divulge to a grand jury the source of any information gathered for a news story.
The law enforcement officials, however, claimed the law should not protect reporters
who have observed people committing crimes. Both the Kentucky Appeals Court and the
U.S. Supreme Court maintained that reporters face the same duty as other citizens to help
a grand jury when asked about a criminal act. The First Amendment, in other words, does
not give newsmen any privilege against appearing before a grand jury and answering
questions as to either the identity of his sources or information he received in secret.
Journalists have no extra privilege to refuse to reveal the names of confidential sources or
other information when called upon to testify before a grand jury, according to the
Supreme Court. The three-part test provided by the dissenting justices, however, provides
the more-often used guidelines. They determined the government must be able to show:
there is probable cause to believe the reporter has information that is clearly relevant to a
specific violation of the law; the information sought cannot be obtained by alternative
means, and; the state has an overriding and compelling interest in the information (408
The shield law in Kentucky extends protection to newspaper, radio, and television
broadcasting employees from being forced to reveal a confidential source, by saying in
part, “No person shall be compelled to disclose in any legal proceeding… the source of
any information procured or obtained by him, and published in a newspaper or by a radio
or television broadcasting station by which he is engaged or employed…” (KRS §
421.100). While it safeguards reporters from disclosing the source of the information, it
does not grant any such privilege against divulging the information itself, exemplified in
the Branzburg cases.
The first case in Paul Branzburg’s rise to the Supreme Court, Branzburg v. Pound,
issued the decision later affirmed by all subsequent courts. J. Miles Pound, a judge at the
Jefferson County Circuit Court, summoned Branzburg to appear before a grand jury ten
days after his controversial article was published. After Branzburg refused to disclose the
identity of the men in his story, Pound ordered him to reappear before the grand jury, and
threatened with contempt penalties if he continued to refuse to answer the questions
given. The Kentucky Appeals court held that the state shield law granted a privilege from
disclosing the source of the information, but not the information itself. “In this case the
reporter learned that two men were engaged in the process of making hashish,” the court
record states. “Their identity, as well as the activity in which they were engaged, was a
part of the information obtained by him, but their identity was not the source of the
information. The actual source of the information was the reporter’s observation” (461
S.W. 2d 345). The court continued to reason that the informant who divulged to
Branzburg the time and place of the hashish making would be protected under the shield
statute. However, ruled the court, “this is a rare case where the informants actually
informed against themselves” (461 S.W. 2d 345).
Branzburg v. Meigs, the second case involving Paul Branzburg arose out of a
second story published Jan. 10, 1971. The article described in detail the drug use and
drug culture present in Frankfurt, Kentucky, again using unnamed sources. Branzurg
spent two weeks interviewing several dozen drug users, even observing some of them
smoking marijuana (408 U.S. 665). Subpoenaed to appear before a Franklin County
grand jury on Jan. 18, 1971, Branzburg moved to quash the summons. The motion was
denied, but the court issued an order protecting him from revealing the identities of his
sources. The order, however, insisted Branzburg answer all questions pertaining to any
criminal act he observed. Branzburg continued to insist his First Amendment rights were
being infringed upon. However, said the court “It is important to keep in mind that the
issue is not the protection of the petitioner’s [Branzburg’s] source of information, since
those sources are protected by KRS 421.100. The only question here is whether,
conceding the right to protect sources of information, petitioner can be required even to
appear before the grand jury” (503 S.W. 2d 748).
The Kentucky Supreme Court case Lexington Herald-Leader v. Beard applies the
state shield law to a libel case. Flossie C. Beard and twelve other former employees of the
University of Kentucky’s Tobacco and Health Institute sued the Lexington newspaper,
claiming the Herald-Leader published a series of articles pertaining to the Institute that
contained false and defamatory statements. Shortly after they filed suit in June 1981,
Beard and her former co-workers served a subpoena on three reporters responsible for the
articles, ordering them to produce all notes and materials gathered in the course of
researching and interviewing for the story. After a period of time when Beard and her
followers unsuccessfully searched for other options, the trial court upheld the subpoena,
but with limitations. The Herald-Leader was allowed to delete specific portions of the
notes submitted to the court. The paper filed an appeal, wanting to keep all their notes in
their possession. In March 1984, however, the Court of Appeals affirmed the trial court’s
ruling. Nine months later, Kentucky’s Supreme Court affirmed the two prior rulings as
well: “There can be no question but that the requested material is ‘surely relevant’… The
information in the possession of the newspaper at the time of publication is critical to
these issues” (690 S.W. 2d 374). The desires of the Herald-Leader to hold their notes in
strict privacy were not supported in the courtrooms, shield law, or by the First
In Ohio, the shield law states that newspaper reporters are not required to reveal a
source of information. The scope of the protection granted is not as broad as in Kentucky,
where radio and television broadcasting station employees are given equal shelter. The
statute, however, asserts that the right to protect an informant’s identity is not absolute,
by saying: “Newspersons neither have an absolute First Amendment right nor an absolute
statutory right under the shield law, RC § 2739.12, to withhold the names of confidential
sources of information in criminal proceedings, whether before a grand jury, during pre-
trial discovery, or at trial. A newsperson’s right to protect the confidentiality of his
confidential sources is a qualified right” (RC § 2739.12). The statute further states that in
order to require a reporter to reveal his or her confidential information, the pursuer must
meet the three criteria presented in the Branzburg test: probable cause to believe the
reporter has information that is clearly relevant to a specific violation of the law; the
information sought cannot be obtained by alternative means, and; the state has an
overriding and compelling interest in the information.
After applying the state shield statute, Ohio courts determined that a reporter
could not be required to reveal the date on which he received his confidential information
if it leads in discovering the source. On Nov. 1, 1998 the Akron Beacon Journal
published an article by Jon Craig, which used confidential documents from the Belmont
County Department of Human Services. The article indicated that the state and federal
government officials were conducting investigations into allegations of improper
Medicaid payments to several individuals. The State of Ohio, acting through a special
prosecutor, issued a subpoena ordering Craig to appear before an April 7, 1999 grand
jury. Through RC § 5101.27 (A), handing the records over to Craig was in itself a
criminal act (140 Ohio App. 3d 755). At the grand jury, Craig complied in producing the
documents for which the subpoena asked. He, however, steadfastly refused to answer
when he received the documents, maintaining that such a disclosure would lead to his
informant’s identity. “While the record is not entirely clear on the matter,” says the
appeals court, “it appears that the parties reached an agreement prior to the grand jury
hearing whereby Appellant [Craig] would not be required to specifically identify his
confidential informant” (140 Ohio App. 3d 755). As a result of this refusal, the trial court
found Craig in contempt of court and sentenced him to jail time. The Court of Appeals,
however, reversed the conviction, invoking the shield statute on behalf of Craig and his
An appellate court in Ohio contrasted the shield law with the rights of a defendant
in a criminal proceeding. Cleveland Plain Dealer reporter Robert J. McAuley contended
he and his confidential sources were protected by Ohio’s shield statute, whereas John
Monica, a defendant in a criminal trial, maintained that the information was essential to
his testimony and right to a fair trial. A Cleveland gangster was shot and killed in Los
Angeles. His assailant admitted the killing and told law enforcement officials that he
acted on the orders of Monica. Nine years later, the Plain Dealer published a story that
stated the gangster’s killer had told law enforcement authorities in California that he was
hired to kill another gangster. McAuley wrote that Mafia chieftains – which Monica
maintained that he was not – ordered the gangster’s death (140 Ohio App. 3d 755). His
attorneys filed a request for McAuley to be named a material and necessary witness, thus
entitling Monica to the confidential information McAuley possessed. Monica asserted
that he did not order the killing of the Cleveland gangster, and was never a member of the
Mafia – the notes, names, and testimony McAuley could provide would be crucial in
proving his innocence. In September of 1978, a California judge granted the request.
McAuley was subpoenaed to appear before the Common Pleas Court of Cuyahoga
County, where he held that if he were required to divulge his sources, his career and the
public’s right to know would be utterly damaged. The trial court ruled that McAuley had
not been shown to be a material witness, and further, that he was entitled to the privilege
granted by shield laws in both California and Ohio. The Court of Appeals reaffirmed that
a newsperson does not have absolute right to protect their sources under either the First
Amendment or state shield laws; then similarly ruled that defendants do not have an
absolute right to obtain confidential information from a newsperson, affirming the trial
When faced with a situation where the reporter refused to answer any questions
posed to her, concerning only non-confidential material published and attributed to a
named source, the Ohio Court of Appeals for Trumbull County ruled that such a reporter
has no privilege under the shield law. Lisa Abraham, a reporter for the Tribune Chronicle
interviewed James P. Firenzo, the county engineer. Special Prosecutor Jonathan
Rosenbaum issued a subpoena for Abraham to testify before a grand jury as part of an
investigation of Firenzo. Abraham refused to answer any questions from Rosenbaum,
claiming she qualified for the protection granted by the state shield statute. She asserted
that Rosenbaum needed to meet the three-pronged test given in Branzburg. In November,
1993, the common pleas court determined that he did not have to meet the test, but “in
fairness and justice,” the court also ruled that the state did in fact meet all three criteria.
The court denied her request for a protective order, and found Abraham in contempt of
court. On appeal, the higher court affirmed the earlier ruling, maintaining that none of the
information being pursued was privileged or obtained from a source promised
confidentiality (92 Ohio App. 3d 186).
In another case involving a non-confidential source, Fawley v. Quirk, it was held
that failure to disclose such a source resulted in a contempt of court conviction. Robert
Quirk, mayor of Cuyahoga Falls, fired Police Chief Gene Fawley in January 1982. A few
before the charges were filed and before Fawley received notice, a city employee gave a
copy of the document to Mary Grace Poidomani, a reporter for the Akron Beacon Jounal.
Fawley then sued Quirk claiming, among other things, that Quirk and the city had
“defamed him and injured his professional reputation by publishing false charges
concerning his conduct as police chief” (1985 Ohio App. LEXIS 6806). Fawley
subpoenaed Poidomani to testify. After acknowledging that the protection of the shield
statute did not apply, she still asked for a constitutional privilege not to reveal her
source’s identity. A trial court denied that request, finding Poidomani in contempt of
court and fined her $100. Once brought before the appeals court, it was determined that
in order to make a complete ruling, Fawley had to be able to meet the three-prong test
originally given in Branzburg v. Hayes – which he did. The appellate court affirmed the
earlier ruling, holding Poidomani in contempt.
Like Kentucky, the state shield law in Michigan grants protection to both print
and broadcast journalists. Those reporters and employees “shall not be required to
disclose the identity of an informant, any unpublished information obtained from an
informant, or any unpublished matter or documentation, in whatever manner recorded…”
(MCL § 767.5a). The statute also carries a clause that declares communications between
attorneys and their clients, members of the clergy and members of their church, and
between physicians and their patients confidential and privileged.
In 1986, however, Michigan’s shield law did not extend protection to broadcast
television journalists. The statute at the time of In re: Contempt of Stone read in part: “In
any inquiry authorized by this act, communication between reporter of newspapers or
other publications and their informants are hereby declared to be privileged and
confidential” (154 Mich. App. 121). At the time, a grand jury was investigating into the
shooting death of an off-duty state trooper in downtown Detroit. The trooper died
reaching for his own weapon when two teenage boys announced a holdup. The grand jury
served subpoenas to members of a television station, demanding production of all written,
filmed or recorded materials and notes relating to a series on Detroit area teen gangs.
Included in the order was all censored and edited portions and silhouette filmings
disclosing the identities of all people who appeared in the story. The station filed a
motion to quash. The trial court heard testimonies from a police detective and reporter
Bradley M. Stone in a closed session. Later, the trial court denied the motion to quash,
and declared Stone in contempt for refusing to surrender the tapes. The Court of Appeals
determined that the term “publication,” as used in the 1986 version of the shield statute,
meant printed materials for public dissemination. The court was quick to point out “the
statute itself makes no mention of television or radio reporters,” and concluded, “the
shield law applies only to the print media” (154 Mich. App. 121). Michigan courts later
pointed out in Mays v. Gillett Communications that the shield statute was later amended
in such a way that In re: Contempt of Stone would have currently been decided
Mays v. Gillett Communications continued the dispute between Stone and the
estate of another killed state police trooper. Plaintiff Doris Mays claimed that Stone and
his employers had a duty to comply with the grand jury subpoena covering the taped
interviews with gang members, as the same gang members subsequently shot her
decedent. According to Mays, the television studio’s failure to comply with the subpoena
resulted in the killers not being apprehended until after her decedent was killed. After
citing In re: Contempt of Stone several times, the Court of Appeals affirmed the ruling at
the trial court level, which decided in favor of Stone and Gillett Communications.
Besides maintaining that the broadcasting company had no responsibility to the decedent,
the appellate court also pointed out that the station had a legal right to pursue all legal
challenges to the subpoena, which had not been done at the time of the decedent’s death
(198 Mich. App. 223).
The Michigan press shield law provides a newspaper no protection in a civil case
for non-confidential materials, as an appellate court ruled in Marketos v. American
Employers Insurance. On Jan. 4, 1986, a fire of suspicious origin destroyed a business
owned by George J. Marketos in Ann Arbor. Marketos filed for insurance compensations
from American Employers Insurance, who in turn denied the claim using the defense of
arson. The local fire marshal took some photographs of the scene, but concluded that the
photos and investigation were inconclusive with regards to arson, and declared the cause
of the fire “undetermined.” The Ann Arbor News sent a photographer out to the scene as
well, and published a few of the pictures. Approximately 20 photos remained
unpublished (185 Mich. App. 179). In July, American served a subpoena on the
newspaper for the unpublished photographs. “There is no dispute,” wrote the court, “that
the photographs were taken at a public place in full public view. Confidentiality is not
claimed” (185 Mich. App. 179). Although the photos taken by the newspaper were likely
similar to those taken by the fire marshal, American asserted that a close inspection of the
pictures might reveal definitive evidence of arson. A local court denied the newspaper’s
motion to quash the subpoena, a ruling later affirmed by the Court of Appeals. The court
ruled it impossible for American to meet the proposed test that the materials were: highly
material; critical to the litigant’s claim, and; not otherwise available, without inspecting
the materials in the first place.
The Tennessee shield statute is very similar to all other states in the Sixth Circuit
– no one engaged in gathering information for publication or broadcast will be required to
disclose the identity of the source or any of the information provided (Tenn. Code Ann.
§24-1-208). The law asserts that anyone involved in a pertinent legal proceeding has a
right to file a motion to divest the protection. The motion will be granted only if the
person seeking confidential information can clearly prove that the situation meets all thee
standards put forth in Branzburg. The shield statute warns that protection will not apply
with respect to the source of any allegedly defamatory information in a case where the
defendant creates a defense based on the source of the information.
In State of Tennessee v. Shaffer, Tennessee courts found that meeting two of the
three criteria in the proposed Branzburg test simply is not enough to compel the release
of unused video footage. Demetria Kalodimos, a reporter and anchor for a Nashville
television, conducted an interview with James M. Shaffer while he was in jail in
Kentucky for two counts of first-degree murder. The station later broadcasted portions of
that interview. State law enforcement officials filed a subpoena requesting the unused
footage, and a divestment of the protection afforded under the shield law. The ten
minutes aired on the television station were edited from more than two hours of tape.
The state maintained the extensive interview by Kalodimos would help in identification
of the two murder victims, who were identified at the time merely by “Sheila” and “Little
Bit” (1990 Tenn. App. LEXIS 21). The state also claimed that the unused segments
would help evaluate Shaffer’s insanity defense and the possible investigation into other
crimes Shaffer committed. Kalodimos asserted that if compelled to disclose the
unbroadcast portions, it would create the “perception, if not the reality, that both she and
WSMV-TV are an investigative arm of the District Attorney General’s Office or of the
judicial system” (1990 Tenn. App. LEXIS 21). The trial court found that while two of the
three prerequisites had been adequately met, the court could not determine whether the
information can be obtained by alternative means, since neither the State nor the court
knew what was contained in the material. The trial court, however, ordered the station to
supply the unused footage to allow them to determine if the knowledge can be obtained
by other means. The Court of Appeals agreed with the first decision, but declared the trial
court acted in violation of the shield statute when demanding the disclosure of the unused
footage. “It is not the function of the court under the statute to act as an arm of the State,”
wrote the appellate court (1990 Tenn. App. LEXIS 21). The court reversed the earlier
ruling, and remanded it back to the trial court.
As part of a wrongful death suit, the parents of William J. Austin, Jr. filed
subpoenas to Memphis’ four television stations and two newspapers, seeking materials in
their files relating to the bridge collapse that killed their son. The television stations
complied with the subpoena – the newspapers did not. The trial judge originally ruled to
quash the subpoenas, saying that the shield statute gave “an absolute shield to newspapers
which protects them against being compelled to disclose any information in their files”
(621 S.W. 2d 397). The Austins moved the court to reconsider its ruling, and the trial
judge later reversed himself. This time the judge ruled that the shield statute did not
apply. The appeals court declared all the trial court’s rulings null, void, and of no effect,
concluding the court lacked subject matter jurisdiction in applying the shield law to the
tort lawsuit. The case was then remanded back to the trial court to determine if the
information sought was confidential or not.
Two years later, Austin v. Memphis Publishing Co. made its way to the Supreme
Court of Tennessee. The Austins acknowledged they could not meet all of the
requirements needed through the shield statute for divestiture, but held that the statute
was not intended to apply to civil cases or non-confidential information. The high court
determined the shield law uses “clear and unambiguous” language that a newsman should
not be required to disclose “‘any information or the source of information’ ” (655 S.W.
2d 146). The court pointed out the legislature did not qualify “any information” or the
“source of any information” with the word “confidential,” and that there was no language
in the statute limiting the privilege. The Tennessee Supreme Court held that the appeals
court erred in trying to limit the scope of the shield law with the term “confidential,” and
since the Austins acknowledged they could not meet the requirements outlined in the
statute, their order for divestiture was dismissed (655 S.W. 2d 146).
In another Tennessee Supreme Court case, State ex rel. Gerbitz v. Curriden,
courts instituted the shield law in protection of radio broadcaster Mark Curriden.
Curriden interviewed an alleged murderer during the week of June 23, 1986. Promos for
the segment aired the day before announced “tomorrow, Mark will talk with a man who
committed a murder and has never been arrested” (738 S.W. 2d 192). Curriden also said
that area police considered the murderer dangerous, and at the time of the murder, the
person was on parole for assault and battery. In his testimony, Curriden denied knowing
the murderer’s true identity, and could provide only a general description of him. Shortly
after the broadcast, Curriden was subpoenaed to appear before a Hamilton County grand
jury. There was no explanation to the type of information the grand jury hoped to obtain,
or what other efforts law enforcement officials had made to determine the identity of the
criminal offense or the offender himself. There was no evidence that the crime even
occurred under Hamilton County’s jurisdiction. Nor was there any investigation or
inquiry by Hamilton County officials to surrounding areas. For those reasons, the Court
of Appeals held that the State had not offered convincing evidence that the information
sought could be obtained through alternative methods, and decided to dismiss the
subpoena. “If appropriate law enforcement authorities make a further investigation into
this alleged offense, the matter might be resubmitted to the Court of Appeals,” the
Supreme Court wrote in its affirming decision (738 S.W. 2d 192). As the evidence stood
at the current time, however, the State could not compel Curriden to testify.
“In the constant tug of war between newspapers, defense lawyers, law
enforcement officials and courts, newspersons contend that they are entitled to a free
press; defendants argue that they are entitled to a fair trial; law enforcement officials
assert that they are entitled to all relevant evidence from whatever source; and courts
want to maintain their integrity by enforcing their orders”
(In re: McAuley, 63 Ohio App. 2d 5).
1.) Austin v. Memphis Publishing Co., 321 S.W. 2d 397, 1981 Tenn. App. LEXIS
525, 7 Media L. Rep. 1986 (1981)
2.) Austin v. Memphis Publishing Co., 655 S.W. 2d 146, 1983 Tenn. LEXIS 786, 9
Media L. Rep. 2070 (1983).
3.) Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972).
4.) Branzburg v. Pound, 461 S.W. 2d 345, 1970 Ky. LEXIS 614 (1970).
5.) Branzburg v. Meigs, 503 S.W. 2d 748, 1971 Ky. LEXIS 50 (1971).
6.) Fawley v. Quirk and In re: Contempt Conviction of Poidomani, 1985 Ohio App.
LEXIS 6806, 11 Media L. Rep. 2336 (1985).
7.) In re: April 7, 1999 Grand Jury Proceedings, 140 Ohio App. 3d 755, 2000 Ohio
2552, 749 N.E. 2d 325 (2000).
8.) In re: Contempt of Stone, 154 Mich. App. 121, 397 N.W. 2d 244, 1986 Mich
App. LEXIS 2843 (1986).
9.) In re: Grand Jury Witness Subpoena of Abraham, 92 Ohio App. 3d 186, 634 N.E.
2d 667, 1993 Ohio App. LEXIS 5754 (1993).
10.) In re: McAuley, 63 Ohio App. 2d 5, 408 N.E. 2d 697, 1979 Ohio App. LEXIS
11.) Kentucky Revised Statutes Annotated, § 421.100 (2004).
12.) Lexington Herald-Leader v. Beard, 690 S.W. 2d 374, 1984 Ky. LEXIS 281, 11
Media L. Rep. 1376 (1984).
13.) Marketos v. American Employers Insurance, 185 Mich. App 179, 460 N.W. 2d
272, 1990 Mich. App. LEXIS 341 (1990).
14.) Mays v. Gillett Communications, 198 Mich. App. 223, 497 N.W. 2d 218, 1993
Mich. App. LEXIS 57 (1993).
15.) Michigan Compiled Laws Service, § 767.5a (2005).
16.) Ohio Revised Code Annotated, § 2739.12 (2005).
17.) State of Tennessee v. Curriden, 738 S.W. 2d 192, 1987 Tenn. LEXIS 987, 14
Media L. Rep. 1797 (1987).
18.) State of Tennessee ex rel. Gerbitz v. Shaffer, 1990 Tenn. App. LEXIS 21, 17
Media L. Rep. 1489 (1990).
19.) Tennessee Code Annotated, § 24-1-208 (2004).