California Shield Law

Last updated
California law
Great Seal of California.svg
Great Seal of California
Constitution
Codes
Note: There are 29 California codes.
Courts of record
Areas
Civil procedural law
Tort law
Civil rights law
Criminal law
Laws concerning political subdivisions of the state
Environmental law
Labor law
Family law
Consumer protection law and building codes
Education law
Miscellaneous
Historical laws

The California Shield Law provides statutory and constitutional protections to journalists seeking to maintain the confidentiality of an unnamed source or unpublished information obtained during newsgathering. The shield law is currently codified in Article I, section 2(b) of the California Constitution and section 1070 of the Evidence Code. [1] Section 1986.1 of the California Code of Civil Procedure (CCP) supplements these principal shield law provisions by providing additional safeguards to a reporter whose records are being subpoenaed. [2]

Contents

Provisions

The statutory and constitutional provisions provide virtually identical protections against contempt citations for journalists who refuse to disclose the identity of their sources or unpublished information acquired or prepared in the scope of their employment. [3] [4] Journalists covered by the shield law include not only newspaper reporters, but also those who work in other forms of press media including magazines, television, and radio. [5] [6] Unpublished information is defined as "information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated." [7] [8]

Section 1986.1 adds to the existing shield law framework by explaining that a journalist who testifies or provides other evidence in a civil or criminal proceeding does not waive the rights guaranteed by Article 1, section 2(b) of the California Constitution. [9] The law also mandates the following requirements on the part of the party issuing the subpoena:

Legislative history

California passed its first shield law in 1935, where it was codified in section 1881(6) of the CCP. [11] In its original iteration, the shield law protections only applied to newspaper publishers, editors, and reporters who refused to reveal their sources. [12] The law's scope was extended in 1961 with an amendment to include radio, television station, press associations, and wire services employees. [13]

In 1965, the shield law provisions were moved to section 1070 of the Evidence Code. [14] Section 1070 has been amended three times in 1971, 1972, and 1974. [15] One of the more consequential amendments was in 1974, when the statute was revised to also cover the disclosure of unpublished information in addition to sources. [16]

Proposition 5

On June 3, 1980, California voters approved the passage of Proposition 5, which incorporated the language of the existing shield law provision into the state constitution. [17] The impetus for this constitutional amendment stemmed from concerns about how the shield law was being applied in practice, particularly in light of court opinions concluding that the provisions were incompatible under both the state and federal Constitution. [18]

AB 1860

Section 1986.1 of the CCP was introduced by Assembly member Carole Migden as AB 1860 during the 1999-2000 legislative session. [19] According to Assembly member Migden, the intent of the bill was to clarify the existing statutory and constitutional safeguards guaranteed to journalists under the shield law. [20] The bill was enrolled on August 29, 2000, and approved by the Governor on September 8, 2000. [21]

SB 558

During the 2013-2014 legislative session, state senator Ted Lieu introduced SB 558 to amend section 1986.1 of the CCP. [22] Among the amendments made include the addition of subsection b(2), which mandated that in the case of a third party subpoena notice must be given to the journalist and the publisher at least five days prior to issuing the subpoena. According to senator Lieu, his intent was to ensure that parties could not take advantage of gaps or loopholes in the existing law to undermine journalists' rights. [23] He also noted as a cautionary tale the 2013 scandal involving the United States Department of Justice secretly obtaining the records of the Associated Press without the organization's knowledge. [24] [25]

SB 558 was enrolled on September 10, 2013, and was approved by the Governor on October 3, 2013. [26]

Notable cases

Delaney v. Superior Court

The California Supreme Court held that the shield law's protection of unpublished information included reporters’ unpublished, nonconfidential eyewitness observations in a public place. [27] However, the court went on to explain that the shield law immunity cannot be sustained if refusal to disclose information that is likely to be helpful to a criminal defendant would unduly infringe on that defendant's federal constitutional right to a fair trial. [28]

Apple v. Does (O’Grady v. Superior Court)

Apple issued civil subpoenas to the publishers of online news sites that had published leaked information concerning Apple's secret plans for its new product. [29] Here, the court concluded that the shield law protections did not differentiate between newsgathering for print or online media, thereby holding that the online publishers could not be held in contempt for refusing to divulge the identity of the sources who provided them with confidential information. [30]

See also

Related Research Articles

A subpoena duces tecum, or subpoena for production of evidence, is a court summons ordering the recipient to appear before the court and produce documents or other tangible evidence for use at a hearing or trial. In some jurisdictions, it can also be issued by legislative bodies such as county boards of supervisors.

A shield law is legislation designed to protect reporters' privilege. This privilege involves the right of news reporters to refuse to testify as to the information and/or sources of information obtained during the news gathering and dissemination process. Currently, the U.S. federal government has not enacted any national shield laws, but most of the 50 states do have shield laws or other protections for reporters in place.

Branzburg v. Hayes, 408 U.S. 665 (1972), was a landmark decision of the US Supreme Court invalidating the use of the First Amendment as a defense for reporters summoned to testify before a grand jury. The case was argued February 23, 1972, and decided June 29 of the same year. The reporters lost their case by a vote of 5–4. This case is cited for the rule that in federal courts, a reporter may not generally avoid testifying in a criminal grand jury, and is one of a limited number of cases in which the U.S. Supreme Court has considered the use of reporters' privilege.

<span class="mw-page-title-main">2004 California Proposition 59</span> Amendment of the Constitution of California

Proposition 59 was an amendment of the Constitution of California that introduced freedom of information or "sunshine" provisions. It was proposed by the California Legislature and overwhelmingly approved by the voters in an initiative held as part of the November 2004 elections.

<span class="mw-page-title-main">Privacy laws of the United States</span>

Privacy laws of the United States deal with several different legal concepts. One is the invasion of privacy, a tort based in common law allowing an aggrieved party to bring a lawsuit against an individual who unlawfully intrudes into their private affairs, discloses their private information, publicizes them in a false light, or appropriates their name for personal gain.

<i>Apple v. Does</i> California Courts of Appeal case

Apple v. Does was a high-profile legal proceeding in United States of America notable for bringing into question the breadth of the shield law protecting journalists from being forced to reveal their sources, and whether that law applied to online news journalists writing about corporate trade secrets. The case was also notable for the large collection of amici curiae who joined in the matter.

A California domestic partnership is a legal relationship, analogous to marriage, created in 1999 to extend the rights and benefits of marriage to same-sex couples. It was extended to all opposite-sex couples as of January 1, 2016 and by January 1, 2020 to include new votes that updated SB-30 with more benefits and rights to California couples choosing domestic partnership before their wedding. California Governor Newsom signed into law on July 30, 2019.

Reporter's privilege in the United States, is a "reporter's protection under constitutional or statutory law, from being compelled to testify about confidential information or sources." It may be described in the US as the qualified (limited) First Amendment or statutory right many jurisdictions have given to journalists in protecting their confidential sources from discovery.

The Federal Republic of Germany guarantees freedom of speech, expression, and opinion to its citizens as per Article 5 of the constitution. Despite this, censorship of various materials has taken place since the Allied occupation after World War II and continues to take place in Germany in various forms due to a limiting provision in Article 5, Paragraph 2 of the constitution. In 2014 the Reporters Without Borders Press Freedom Index ranked Germany as 14th in the world in terms of press freedom. During the Allied occupation of Germany, the media was controlled by the occupying forces. The policy rationales differed among the occupying powers, but there was resentment in literary and journalistic circles in many parts of the country. Undesired publishing efforts were unilaterally blocked by the occupying forces.

<span class="mw-page-title-main">1996 California Proposition 218</span> Adopted initiative constitutional amendment

Proposition 218 is an adopted initiative constitutional amendment which revolutionized local and regional government finance and taxation in California. Named the "Right to Vote on Taxes Act," it was sponsored by the Howard Jarvis Taxpayers Association as a constitutional follow-up to the landmark property tax reduction initiative constitutional amendment, Proposition 13, approved in June 1978. Proposition 218 was approved and adopted by California voters during the November 5, 1996, statewide general election.

<span class="mw-page-title-main">Law of California</span> Overview of the law of the U.S. state of California

The law of California consists of several levels, including constitutional, statutory, and regulatory law, as well as case law. The California Codes form the general statutory law, and most state agency regulations are available in the California Code of Regulations.

The Free Flow of Information Act is a bill intended to provide a news reporter with the right to refuse to testify as to information or sources of information obtained during the newsgathering and dissemination process.

<span class="mw-page-title-main">Stored Communications Act</span>

The Stored Communications Act is a law that addresses voluntary and compelled disclosure of "stored wire and electronic communications and transactional records" held by third-party Internet service providers (ISPs). It was enacted as Title II of the Electronic Communications Privacy Act of 1986 (ECPA).

A Doe subpoena is a subpoena that seeks the identity of an unknown defendant to a lawsuit. Most jurisdictions permit a plaintiff who does not yet know a defendant's identity to file suit against John Doe and then use the tools of the discovery process to seek the defendant's true name. A Doe subpoena is often served on an online service provider or ISP for the purpose of identifying the author of an anonymous post.

<span class="mw-page-title-main">California Public Records Act</span> Freedom-of-information law in California, US

The California Public Records Act was a law passed by the California State Legislature and signed by governor Ronald Reagan in 1968 requiring inspection or disclosure of governmental records to the public upon request, unless exempted by law.

<span class="mw-page-title-main">California Code of Civil Procedure</span> Codification of the law of civil procedure in the U.S. state of California

The California Code of Civil Procedure is a California code enacted by the California State Legislature in March 1872 as the general codification of the law of civil procedure in the U.S. state of California, along with the three other original Codes. It contains most California statutes that govern the filing and litigation of lawsuits in the Superior Courts of California, as well as legal notices that must be given in a variety of circumstances. It also includes statutes of limitations that control the period of time during which a lawsuit may be commenced. The Code originally governed the legal profession, but those were later moved to the Business and Professions Code.

<span class="mw-page-title-main">Grand juries in the United States</span> Groups of citizens empowered by United States federal or state law to conduct legal proceedings

Grand juries in the United States are groups of citizens empowered by United States federal or state law to conduct legal proceedings, chiefly investigating potential criminal conduct and determining whether criminal charges should be brought. The grand jury originated under the law of England and spread through colonization to other jurisdictions as part of the common law. Today, however, the United States is one of only two jurisdictions, along with Liberia, that continues to use the grand jury to screen criminal indictments.

<span class="mw-page-title-main">1996 California Proposition 218 (Local Initiative Power)</span> Adopted initiative constitutional amendment

Proposition 218 is an adopted initiative constitutional amendment in the state of California that appeared on the November 5, 1996, statewide election ballot. Proposition 218 revolutionized local and regional government finance in California. Called the “Right to Vote on Taxes Act,” Proposition 218 was sponsored by the Howard Jarvis Taxpayers Association as a constitutional follow-up to the landmark Proposition 13 property tax revolt initiative constitutional amendment approved by California voters on June 6, 1978. Proposition 218 was drafted by constitutional attorneys Jonathan Coupal and Jack Cohen.

<span class="mw-page-title-main">Special motion to strike</span> Legal motion intended to stop SLAPP lawsuits

The special motion to strike is a motion authorized by the California Code of Civil Procedure intended to stop strategic lawsuits against public participation (SLAPPs). They were created in 1992 with the purpose of encouraging participation in matters of public significance. The motion allows a litigant to strike a complaint when it arises from conduct in furtherance of the moving party's rights to petition or free speech in connection with a public issue. If the moving party prevails, they are entitled to attorney's fees by right. The motion is codified in section 425.16 of the Code. More than 300 published court opinions have interpreted and applied California's anti-SLAPP law. Because the right to file a special motion to strike is substantive immunity to suit, rather than a merely procedural right, federal courts apply the law to state law claims they hear under diversity jurisdiction.

References

  1. ↑ 31A California Jurisprudence 3d (2019) Protection of a newsperson’s immunity as to unpublished information, § 588.
  2. ↑ Douglas, Devina (January 1, 2014). "Chapter 519: Fortifying California's Reporters' Shield". McGeorge Law Review. 45 (3): 467. Retrieved May 13, 2019.
  3. ↑ Cal. Const. art. 1, § 2(b).
  4. ↑ "California Evidence Code § 1070". Archived from the original on 2021-05-12. Retrieved May 13, 2019.
  5. ↑ Cal. Const. art. 1, § 2(b).
  6. ↑ "California Evidence Code § 1070(b)". Archived from the original on 2021-05-12. Retrieved May 13, 2019.
  7. ↑ Cal. Const. art. 1, § 2(b).
  8. ↑ "California Evidence Code § 1070(c)". Archived from the original on 2021-05-12. Retrieved May 13, 2019.
  9. ↑ "California Code of Civil Procedure § 1986.1" . Retrieved May 13, 2019.{{cite web}}: CS1 maint: url-status (link)
  10. ↑ Id.
  11. ↑ Alger, Timothy (November 1, 1991). "Promises Not to be Kept: The Illusory Newsgatherer's Privilege in California". Loyola of Los Angeles Law Review. 25 (155): 178. Retrieved May 20, 2019.
  12. ↑ Id.
  13. ↑ Id.
  14. ↑ Id.
  15. ↑ Id. at 179.
  16. ↑ Id. at 179-80.
  17. ↑ "Voter Information Guide for 1980, Primary" (PDF).
  18. ↑ Id.
  19. ↑ "Assembly Bill No. 1860". Archived from the original on 2019-06-01. Retrieved May 1, 2019.
  20. ↑ "May 16, 2000 Hearing, Assembly Committee on Judiciary". Archived from the original on 2019-06-01. Retrieved May 1, 2019.
  21. ↑ "AB 1860 History". Archived from the original on 2019-06-01. Retrieved May 1, 2019.
  22. ↑ "Senate Bill No. 558". Archived from the original on 2016-08-03. Retrieved May 1, 2019.
  23. ↑ "June 25, 2013 Hearing, Assembly Committee on Judiciary". Archived from the original on 2019-06-01. Retrieved May 1, 2019.
  24. ↑ Id.
  25. ↑ Horwitz, Sara. "Under sweeping subpoenas, Justice Department obtained AP phone records in leak investigation". The Washington Post. Retrieved May 31, 2019.
  26. ↑ "SB 558 History". Archived from the original on 2019-05-16. Retrieved May 1, 2019.
  27. ↑ Delaney v. Superior Court, 50 Cal.3d 785, 805 (1990).
  28. ↑ Id. at 814.
  29. ↑ O'Grady v. Superior Court, 139 Cal.App.4th 1423, 1431 (6th Dist. 2006).
  30. ↑ Id. at 1466.


This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.