Content-Type: text/html Broadening the Scope of the Newsgathering Privilege to Protect Nontraditional Journalists: A Definitional Dilemma Laurence B. Alexander Associate Professor of Journalism P.O. Box 118400 College of Journalism and Communications University of Florida Gainesville, FL 32611 Office: (352) 392-0448 FAX: (352) 846-2673 E-Mail:[log in to unmask] A Research Paper submitted to the Law Division of the Association for Education in Journalism and Mass Communication for presentation consideration at the Annual Convention in Phoenix, Arizona in August 2000 ABSTRACT Broadening the Scope of the Newsgathering Privilege to Protect Nontraditional Journalists: A Definitional Dilemma This paper explores the statutory and common law development of the journalist's privilege, giving special attention to the parameters drawn to limit protection only to those who work in traditional roles in traditional news organizations. It also examines the widely accepted "checking value" theory of Vincent Blasi on the role that news-source confidentiality plays in serving as an additional check on abuses of government power. This underlying theory is considered in determining whether the journalist's privilege should be expanded beyond its current scope. Broadening the Scope of the Newsgathering Privilege to Protect Nontraditional Journalists: A Definitional Dilemma Most U.S. journalists enjoy a privilege that protects them from being compelled to divulge confidential sources and information. Before they can use the privilege, however, they must satisfy the legal requirements for the types of persons or occupations that would be considered a journalist. It is obvious that those working for traditional news media are members of the journalism profession and should be able to claim the privilege. Beyond that, it is not clear how far the definition should extend for purposes of applying the privilege? Is "journalist" a job title reserved only for those who gather news fulltime? Does it apply to everyone who disseminates information? Through practice and experience, professionals and scholars have obtained a firm grasp of the concept, defining journalists according to their traditional newsroom responsibilities.[1] However, the determination of who is a privilege-protected journalist has legal consequences that reach far beyond the confines of the newsroom. As such, those who want to take advantage of the privilege when called to testify must meet the standards outlined in the state statutes, constitutions, and federal and state court decisions. Because the privilege can effectively exempt a person from testifying or revealing confidential information, the stakes are high. As a result, many communicators who work outside of the traditional newsrooms have attempted to assert the journalist's privilege to avoid or limit their testimony. In Pennsylvania, for example, wrestling commentator Mark Madden, who recorded announcements and discussed wrestlers' personal lives on a call-in telephone line, tried unsuccessfully to invoke the journalist's privilege. Although he acquired some of his information from confidential sources, he was denied the privilege in a libel suit against him because the primary goal of his communication was entertainment, not gathering and disseminating news and information.[2] But consider those like Madden who gather information and deliver it to the public through various media. Can they claim to be journalists for purposes of asserting the privilege? As a practical matter, a number of established journalists are prepared to open their arms to accept their new media counterparts into the profession.[3] The lack of certification or other uniformed entry-level requirements make it difficult to exclude anyone who has the desire and resources to join the working press. Thus, when the profession embraces those who traditionally have not been a part of the fold, it raises concerns that the journalist's privilege would be expanded to apply to nearly everyone who gathers information and disseminates it. A logical progression could have the profession anointing with journalist status many who simply post information on the Internet, for example. Already, various nontraditional journalists--newsletter editors, book authors and a talk show host--have gone to court to assert their claim to the privilege. This article reviews the rationale for using confidentiality in news gathering and its relationship to the widely accepted "checking value" theory of Vincent Blasi. In his view, journalists' confidentiality must be adequately protected to empower a vigorous, investigative press to serve as an additional check on abuses of government power. In light of Blasi's view of the press' role as the Fourth Estate, the article explores the statutory and common law development of the journalist's privilege, giving special attention to the parameters drawn to limit extension of the protection to nontraditional areas. Finally, this article suggests that courts in particular examine the total circumstances of the persons or entities claiming the privilege to determine if they share the needs of the traditional journalists in protecting sources who are fearful of retribution or reprisal. Background Proponents of confidential sources say they bring to light important stories that otherwise never would surface. Used carefully, unnamed sources can be a valuable tool, allowing reporters to delve into sensitive areas to find truth. Such use also helps journalists cultivate sources, build trust, and empower and encourage fearful sources.[4] Opponents of the practice argue, however, that information from unnamed providers further undermines journalism's sagging credibility and is simply not worth the price. [5] Despite the potential effect on credibility, editors continue to allow the practice out of concerns that without unnamed sources many good stories would be missed and whistleblowers would be reluctant to come forward, as would those whose safety or job may be jeopardized by speaking publicly to a reporter.[6] This great reliance on the privilege, especially for investigative reporters, is solidly supported by the First Amendment theory of Vincent Blasi. Blasi's "checking value" theory acknowledges the important role of First Amendment freedoms in checking the abuse of power by public officials. His theory interprets how the watchdog role of the press is relevant not only to confidential-source relationships that lead to an expose of wrongdoing but also for the more perceptive reporting of ordinary government operations that seeks to place an event or personality in context. The checking-value theory is grounded in political thought that addresses the tendency of officials to abuse their public trust. He noted that the colonial pamphleteers organized much of their political thought around the need they perceived to check the abuse of governmental power. Evidence of abuses of government power is often gathered by the newsgathering watchdogs and disseminated to audiences for their use in voting, public discussion and debate.[7] In the 1960s, a number of reporters began challenging subpoenas that were used to get them to talk about information they either obtained in confidence or wish to avoid disclosing. During that period, the government increased its surveillance of dissidents, and the press became more aggressive in its reporting on the individuals and activities that were the targets of law enforcement efforts. In turn, the government attempted to use the press as part of its efforts to gather information.[8] In many instances, journalists were subpoenaed to testify before grand juries about criminal activities they might have eyewitnessed. This increase in subpoenas met with an unprecedented number of journalists claiming that a constitutional privilege protected them from compelled disclosure.[9] The resulting conflict ended up before the U.S. Supreme Court. In the landmark case of Branzburg v. Hayes,[10] Justice Byron White noted that recognizing the claim to a journalist's privilege would result in "practical and conceptual difficulties of a high order" when the issue turned to the beneficiaries of the privilege. He further stated: Sooner or later, it would become necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.[11] In Branzburg, the Court consolidated three separate cases in which reporters had been subpoenaed to identify their sources of information or disclose other confidences to grand juries.[12] The Court rejected the reporters' First Amendment claims while conceding that news gathering deserved some protection.[13] White wrote that the First Amendment did not invalidate any "incidental burdening" of the press caused by the enforcement of laws that apply to all citizens.[14] Courts, White wrote, consistently had found that the public "has a right to every man's evidence" except in those instances when a constitutional, common-law, or statutory privilege had been accorded to a possible witness.[15] While the Branzburg Court ruled against granting a privilege for journalists, Justice White left open the possibility that privileges could develop in state constitutions, the statutes, or the common law. Citing the 1938 High Court precedent in Lovell v. Griffin, Justice White noted that press freedom is a fundamental right that extends far beyond newspapers and other periodicals. "It necessarily embraces pamphlets and leaflets," he wrote. "The press in its historic connotation comprehends every sort of publication which affords a vehicle of information and opinion."[16] Such a broad reading of press freedom by Justice White made it difficult for him to distinguish in his dicta the information function served by journalists from those "performed by lecturers, political pollsters, novelists, academic researchers, and dramatists." Clearly, he was concerned that the privilege would allow anyone who is gathering information and disseminating it to claim that they were relying on confidential sources for their information, and those sources would dry up if the information gatherer were forced to divulge confidences in court. The restrictive view in the law toward creating privileges[17] has discouraged serious proposals for all authors or communicators to enjoy the exemption from testimony. Nevertheless, one commentator favors applying the journalist's privilege beyond the scope of the traditional press to recognize standing for those who work at small-circulation publications and private newsletters.[18] Some also have wondered whether the privilege would protect the citizen-critic when he or she acts in an occasional news gathering capacity in a traditional news organization.[19] Though not specifically addressing the topic of privilege, several commentators would like the profession to broaden its ranks to include those who disseminate public information outside of traditional media outlets. Andrew Bradford, a colonial American newspaperman, defined the nature of press freedom in the most expansive terms. "But by the Freedom of the Press, I mean a Liberty, within the bounds of Law, for any man to communicate to the Public_"[20] Another scholar suggested a move toward a functional definition of the press, going beyond the exclusive hold of journalists to include a wider, non-journalistic public.[21] He believes that broadening the definition of "the press" would increase opportunities for access and diversity.[22] Such access can give anyone with a modem the ability to deliver news to a global audience, thereby potentially enriching the World Wide Web with new sources of information, a diversity of views, and a variety of viewpoints.[23] One influential newspaper columnist advocated applying the legal rules of journalism to cyberspace. At the same time, he drew a sharp distinction between online writers Brock Meeks and Matt Drudge. He saw Meeks as a battle-tested experienced former newspaper journalist, and he saw Drudge as a gossip columnist who gained notoriety by relying on other media as sources. He refused to acknowledge Drudge's work as journalism. Because there is no certification for becoming a journalist, he would require that these self-anointed news gatherers earn the right to keep their places. "You work sources and get to know what you're talking about. That's the credential that counts."[24] In defining a journalist today, it is difficult to overlook the current business realities, including the blurring of the lines between news and entertainment and making a profit.[25] Some journalists who have opposed professionalization for the field contend that the nature of the practice as an exercise of free expression prohibits them from denying anyone entry to the occupation of journalism.[26] Grappling With A Definition In each of the 31 states with shield laws, legislatures identify journalists as the professionals who should be protected from testifying about their sources and information. Consequently, the states also have taken on the responsibility of clarifying how broadly that term can be used with respect to the categories of persons to be protected by the privilege. A review of the state statutes revealed that no two states used identical language to describe the persons protected, but most states adopted the approach of listing the occupations that were covered. The typical shield law text protects persons "connected with," "engaged in," or "employed by" certain specified media organizations. An example of a typical statutory description can be found in the North Dakota statute, which reads in pertinent part: No person shall be required in any proceeding or hearing to disclose any information or the source of any information procured while the person was engaged in gathering, writing, photographing, or editing news and was employed by or acting for any organization engaged in publishing or broadcasting news, unless directed by an order _ Many jurisdictions bolster their definitions of the class of protected persons by also listing the types of media with which the privilege user must be identified. These media include the obvious employers, such as newspapers, magazines, "other periodicals," wire or news services, news agencies, news and feature syndicates, press associations, radio and television broadcasters. Less noticeable forms of delivery included pamphlets, books, facsimiles, news reels or motion picture news, cable and community-antenna television. Much of the justification for a testimonial privilege rests with the needs of investigative reporters to be protected from the worry of subpoenas. None of the state statutory privileges, however, expressly protects investigative reporters. Nevertheless, each of the 31 state laws makes it possible for all traditional journalists--reporters (including so-called investigative reporters), editors and publishers--to keep secret the identities of the persons with whom they have communicated in confidence. Generally, statutes are silent on whether journalists who work part time would be protected.[27] Many are also silent on whether former journalists would be covered. Strong indications are that they would be.[28] At the same time, it would seem, those who work as journalists on a volunteer basis would be excluded because their work is not for gain or livelihood. But if volunteers were excluded, how would courts treat interns who work as apprentices for news organizations? Interns could be counted among the privileged, depending on their payroll status. Student journalists who perform the traditional job functions of their brethren who work outside of an academic setting would be deserving of the protection of the shield law based on the similarities between the newsgathering functions performed by both groups. In some cases student journalists are paid, but in many other cases, they are unpaid, like some interns, working to gain valuable experience that will aid them in launching a professional career.[29] Other evidence of a legislative tilt toward the large, established commercial press can be found in the language addressing the protected institutions. Newspapers were listed in the protected sphere in all state statutes but only defined in a few. While New Jersey protects newspaper and magazine employees, it restricts the kinds of publications that would benefit.[30] A qualifying newspaper in that state must appear at least once a week and contain items of current interest, such as news articles, opinions, editorials, features and advertising. In addition, newspapers and magazines[31] are required to have a paid circulation and entry at a U.S. Post Office as second-class matter.[32] Such a limited definition effectively could omit publications that are distributed free of charge.[33] Many college and university newspapers would fall into this category, although some that are funded in part by student fees arguably have an indirect paid circulation. Alternative newspapers often are distributed at no direct cost to the consumer, even though their employees are performing the same tasks and services as news entities with a paid circulation. Also frustrating for First Amendment and fairness purposes is a provision in the New York law requiring magazines to have been published for at least one year before being included.[34] In essence, newer publishers, one-time publishers and the occasional pamphleteers might have a difficult time bringing themselves and their employees within the strictures of that privilege statute.[35] A few states have made the additional requirement for newspapers and "other periodicals" that they have a "general circulation."[36] While "general circulation" is a phrase that has a specific meaning with legal effect, state legislatures have not taken upon themselves the role of defining it. Therefore the task has been left to state courts, which have described such newspapers as those devoted to the interests of a particular class of persons and specializing in news and intelligence ordinarily of interest to that class.[37] Such newspapers also are expected to publish items of a general interest, such as news of political, religious, commercial or social affairs and circulate this news among the general public.[38] In addition to states that provide umbrella protection for journalists working in any media organization, there are indications that lawmakers would be willing to extend the protection to traditional journalists who communicate through newer technologies. Research for this study found pockets of explicit protection for journalists appearing on cable television.[39] Similarly, there was protection for those who disseminate news via community-antenna television.[40] Alaska's shield law includes protection for sources of news transmitted by facsimile,[41] and New Mexico's law makes two references to news sources who are protected for an electronically delivered product. [42] But no states, however, were Internet-specific in their determinations. Federal Court Influences In addition to the protections found in state statutes and case law, a separate strand of the journalist's privilege has emerged and developed in the federal courts. As such, it has contributed significantly to the definition of the class of persons protected by the journalist's privilege. In von Bulow v. von Bulow,[43] the U.S. Second Circuit Court of Appeals refused to extend the privilege to someone who gathered information initially for a nonjournalistic endeavor and who later decided to author a book using that information. Andrea Reynolds, a third-party witness in a civil lawsuit appealed the order holding her in contempt for refusing to comply with subpoenas seeking investigative reports she commissioned, notes she took while observing the trial and the manuscript of an unpublished book. The court held that she was not a member of the class that could assert the journalist's privilege. The court found no such privilege in federal law or the New York shield law. The court found that at the time she sought the investigative information, she did not intend to use the reports to disseminate the information to the public; that her note-taking did not constitute gathering and dissemination of news; and that her memories were not privileged merely because, at a later date, she would commit those memories to writing. In denying Reynolds the privilege, the court reiterated a Second Circuit 1972 privilege precedent that requires the person seeking the journalist's privilege to demonstrate the intent to use the material sought to disseminate information to the public and to show that such intent existed at the inception of the newsgathering process.[44] Following the reasoning in the von Bulow case, the Ninth Circuit in Shoen v. Shoen,[45] granted the protections of the journalist's privilege to Ronald Watkins, an investigative author of books on topical and controversial subjects. Watkins, who was working on a book on the Shoen family fued over control of the U-Haul Company, was subpoenaed to testify and turn over all materials related to Eva Berg Shoen's death.[46] The court found that the journalist's privilege was designed to protect investigative reporting irrespective of the medium. Noting the vital historical role that book authors have played in exposing corruption and abuse in American life, the court then put investigative book authors on the same footing as investigative reporters on the issue of privilege. "[W]e see no principled basis for denying the protection of the journalist's privilege to investigative book authors while granting it to more traditional print and broadcast journalists. What makes journalism journalism is not its form, but its content."[47] The court found that Watkins undertook his research with the intention of writing a book about the Shoen family, thereby satisfying the von Bulow requirements that authors intend to disseminate the information they gather and that such intent exist at the inception of the newsgathering process. The court held that plaintiffs had failed to demonstrate a sufficiently compelling need for the information to overcome Watkins' assertions of the journalist's privilege.[48] In Lowe v. S.E.C., the U.S. Supreme Court raised the issue of whether newsletters would be considered in the same vein as traditional newsgathering organizations, but it provided no answer. A majority of the court held that an investment newsletter was not subject to regulation by the Securities and Exchange Commission under the Investment Advisor's Act of 1940, effectively avoiding the issue of whether the newsletter falls within the First Amendment's definition of press. Since Lowe, a number of federal courts have applied the journalist's privilege to employees who work for newsletters targeted to specific audiences.[49] In In Re: Scott Paper Co., a federal district court applied the press privilege to information used by Standard & Poor's in rating and commenting on the creditworthiness of public companies and disseminating that information to the public through its periodicals. Plaintiffs sought to use the information from S&P in a class action against Scott Paper Co. for securities fraud. While S&P is not a traditional newsgathering organization, the court pulled it under the umbrella of the press privilege because of the company's attributes that are indicative of the press: it publishes periodicals with a regular circulation to a general population; though issuers pay for the service, they do not get to advertise; instead, S&P maintains complete editorial control over the form and content of its publications; and it publishes the information for the benefit of the general public. The court relied in part on its interpretation of Lowe. Though the Lowe court did not reach this precise issue, this court noted that the three concurring justices would have reached the constitutional issue and declared that such a newsletter was protected by the free press clause. Given the efforts taken by both the majority and concurring justices in Lowe to distinguish between investment newsletters for public dissemination and those for private use, the court in In Re: Scott Paper Co. believed that newsletters would be within the protection. Applying the qualified privilege of its own circuit,[50] the court concluded that the plaintiffs had not met their burden of demonstrating that they have exhausted other means of obtaining the information and that the material sought is crucial to the case such that compelling First Amendment interests should be overcome. Likewise in Apicella v. McNeil Laboratories, Inc., [51] the court held that the editor of a medical trade magazine was entitled to First Amendment protection from disclosure of confidential information regarding reports on various drugs sought by the plaintiff in a malpractice action.[52] Specifically, the federal district court in Apicella allowed the editor of a bi-monthly medical newsletter to use the journalist's privilege to protect the identity of a physician who prepared the preliminary draft of the article and the consultants who had responded to it. Dr. Mark Abramowicz, the newsletter's chief executive officer, was sought for deposition because the newsletter had published information on the dangers of the drug innovar, which was at issue in the underlying lawsuit. In shielding the newsletter from discovery, the court expressed concern about the possible chilling effects disclosure would have on the ability of the newsletter to obtain services of consulting physicians in the future. In addition the party requesting disclosure had not demonstrated a need for the information or an inability to obtain the information from an alternate source. Therefore, the court held that the newsletter should not at this time be forced to reveal the author or the consultants on the article. While the court in Apicella applied the privilege analysis to see if the facts met the legal requirements, that practice is not followed in all tribunals where writers and editors want to mask their identities. [53] Only recently have scholars begun to make inroads under the protective shield of the journalist's privilege.[54] In 1998, the First U.S. Circuit Court of Appeals protected two business school professors who were then co-authors of a forthcoming book recounting Microsoft's and Netscape's battle for supremacy in the Internet software marketplace.[55] In preparing its defense of a federal antitrust action, Microsoft subpoenaed materials gathered by the professors. Noting the similarities between the work of academic researchers and news professionals, the appellate court posited that "academicians engaged in pre-publication research should be accorded protection commensurate to that which the law provides to journalists."[56] Academicians, like journalists, are concerned about the "chilling effect" that a lack of source protection would have on speech. "Just as a journalist, stripped of sources, would write fewer, less incisive articles, an academician, stripped of sources, would be able to provide fewer, less cogent analyses."[57] It is interesting that in Cukier v. The American Medical Association, the court held an editor of a scholarly journal, The Journal of the American Medical Association, within the definition of a "reporter" under the Reporter's Privilege Act in Illinois.[58] Jean Cukier and his co-authors submitted a manuscript to the scientific periodical JAMA for publication consideration, and Cukier included a statement that he had no financial interest in the publication of the manuscript. A JAMA editor sent Cukier and a co-author a letter informing him that it has come to his attention Cukier had a financial interest in the publication of the manuscript, and he asked Cukier for a full disclosure of his financial interest in the publication. After Cukier denied such an interest and his submission was declined, he filed a pre-suit discovery to learn the identity of the person who had called into question his professional honesty and integrity. The JAMA, like other scholarly publications that use a blind-refereed manuscript review process, guarantees the confidentiality of its peer reviewers and others who may provide information to it in the course of the editorial process. While the editor learned of a possible financial interest while evaluating Cukier's manuscript, the court found that such a discovery does not preclude the possibility that it all occurred during the newsgathering process. Therefore, the pre-suit discovery was not allowed. Limitations on the Privileged Class While the privilege historically has been linked to investigative reporting and the watchdog function of the press, many others who are trusted with confidences have sought the protective coverage of the journalist's privilege.[59] Many have claimed to be journalists, and in doing so, opened questions of the application of the journalist's privilege to a number of professional and amateur communicators, with varying degrees of success. The areas involved include Internet journalists (including sole-proprietors of news on the Internet), entertainers and citizen-critics. One of the most interesting and complex questions of privilege application involves whether to extend the protection to include Internet journalists. It is noteworthy that three circuits have held that the medium that an individual uses to disseminate the news does not make a difference in the degree of protection accorded to the work.[60] Indications are that some Internet journalists would have an easy time persuading the court they were deserving of the protection of the privilege. In one case, Dan Goodin, a reporter for the San Francisco-based online news provider CNet, escaped forced disclosure of documents that were subpoenaed by Microsoft Corp. to aid the software giant in its defense of a lawsuit by Sun Microsystems Inc. Because the documents did not likely come from someone bound by the court's protective order in the lawsuit, a federal magistrate ruled that requiring disclosure may reveal an unwarranted confidential source.[61] As a practical matter, it would seem appropriate to include an online news reporter in the privileged class. After all, the duties and functions mimic those of traditional journalists, and they hold the same job titles and classifications. [62] But how should courts address non-traditional journalists like Matt Drudge, proprietor of the Drudge Report? Should those news and information disseminators who have no institutional backing, credentials or credibility be afforded the same protections as those who work for newspapers, magazines and broadcast stations? Judging by the texts of the shield laws and the evolution of the common law, they would be excluded because of the tendency of the law to require a linkage between a newsgathering person and an established medium of communication. It would take a much broader reading of the current law to include everyone on the Internet who purports to supply news, information and commentary. Before dismissing the claim, a court deciding the issue should necessarily have to study the facts and circumstances of each case to determine if the communicator was engaged in traditional newsgathering functions, with an eye toward publishing or disseminating the information. At least by providing for a factual review of each case, courts could move away from a strict test that accommodates only traditional journalists and consider including solo-operated news gatherers performing a traditional journalistic role requiring the protection of a privilege. Moreover, courts have been particularly vigilant in sorting through cases in which entertainers who emulate journalists in some respects try to wrap themselves in the protection of the privilege. This is a particularly interesting problem because of the blurring of the lines between news and entertainment.[63] In In Re Madden,[64] the court used the experiences of other federal circuits in denying the journalist's privilege to wrestling commentator Mark Madden. His commentaries promoted upcoming World Championship Wrestling events and pay-per-view television programs, announced the results of wrestling matches and discussed wrestlers' personal lives and careers. Although he acquired some of his hotline information from confidential sources, Madden admitted that his announcements were as much entertainment as journalism. He was called to testify by Turner Broadcasting, owner of the World Wrestling Federation, in a lawsuit that pitted the WWF against Titan Sports, owner of the WCW.[65] He invoked the journalist's privilege and the protection of the Pennsylvania Journalist's Shield Law, refusing to identify the sources of certain of his allegedly false and misleading statements recorded for the WCW's 900-number hotline. While the district court concluded that Madden was a "journalist" with standing to assert the privilege because he intended to disseminate information to third parties, the Third Circuit reversed. It formulated a three-part test for determining whether an individual can claim the protections of the journalist's privilege. To do so, the claimant must (1) be engaged in investigative reporting; (2) be engaged in gathering news; and (3) possess the intent at the inception of the news-gathering process to disseminate this news to the public. The court found that Madden was lacking in all three areas. His production "amounts to little more than creative fiction about admittedly fictional wrestling characters," Judge Nygaard wrote. Madden's primary goal was to advertise and entertain, not to gather news or disseminate information, according to the court. In a separate case involving an entertainer's claim to the journalist's privilege, Denver talk-radio host Peter Boyles was fined $20,000 by Denver District Judge Herbert Stern when Boyles refused to disclose the sources for his report about a 1997 brawl involving a Denver police officer. Officer Bryan Gordon sued Boyles and his broadcast station for defamation, claiming the reports of his involvement in the fight were false. Boyles tried to claim the protection of the state's shield statute, but Stern ruled that Gordon's constitutional rights outweighed Boyles' First Amendment protections. While Stern acknowledged he understood what Boyles was doing by not revealing his sources, the judge said he needed to protect the sanctity of the court system.[66] Therefore, read together, these cases from different tiers and court systems have identified a clear line of demarcation that would include bonafide, well-defined journalists who are entitled to the privilege and exclude communicators whose purposes are primarily entertainment in nature. The Third Circuit test for determining who can use the privilege is even clearer and more direct. Its three-part standard seeks to limit the privilege to those who are performing functions ascribed to traditional journalists and other nonfiction writers. Not so clear is the privilege status of communicators who ostensibly serve as news or information gatherers but present their findings in a format that is most entertaining. Continuation of the blurring lines between news and entertainment could make it most difficult for courts and legislatures to determine who is a privilege-protected journalist. Gilbert Cranberg examined this issue of broadening the privilege beyond the professional journalistic realm when the Internet was little more than a pipedream. A former editorial-page editor, Cranberg favored giving ordinary citizens commenting on public issues the same First Amendment protection as journalists. He appreciated laws that protected journalists "from being used as pawns in litigation." [67] At the same time, though, he felt the citizen-journalist deserved status equal to that of the professional journalist, especially at a time when desktop publishing had significantly increased the potential for citizens who wanted to be investigative reporter-publishers.[68] Cranberg questioned whether courts would give the same kind of protection to a citizen activist who regularly contributed editorials to a major daily newspaper. Though the court did not address that issue, Cranberg seemed to doubt whether citizens would be afforded protection in a similar circumstance. "It is no sure thing that John Q. Citizen would be as protected from harassment by subpoena as John Q. Journalist."[69] While citizen-critics do receive some constitutional privilege protection against libel judgments for their criticism of public officials and public figures,[70] there is no concomitant need for a privilege to protect confidential sources and information. An exception can be made, however, for those citizens who perform in roles as traditional journalists. Expanding the privilege beyond those limits would diminish its value to traditional news gatherers, possibly rendering it useless. In this nation of critics, few would be required to testify if all non-traditional disseminators of information and opinion were allowed to claim the journalist's privilege. Discussion The journalist's privilege, as defined by the state legislatures and interpreted by the courts, effectively conveys the strong public policy recognizing the importance of confidentiality in the newsgathering and disseminating processes. One fundamental aspect of granting or allowing a privilege for journalists concerns the decision of which persons would be included in the class of persons protected from disclosure. So daunting was the task of determining the sphere of protection that the Branzburg court gave it no attention. Nevertheless, lawmakers serious about shielding the news media from the consequences of violating confidentiality undertook this task in 31 states. The definitions they settled on blended into a common refrain for identifying newsroom personnel who would be protected. The wording of most of these laws is broad enough to include everyone employed in the editorial chain at traditional news organizations. State shield laws even describe in great detail the types of media outlets with which the privileged employees must be associated. These statutes tend to be rigidly fixed on protecting sources and information communicated to journalists in traditional media, seemingly keeping out journalists or other communicators who might practice their trade through non-traditional means. Noticeably absent from the statutes and court opinions are various Internet-based media outlets. Even newer statutes, enacted in Florida and North Carolina after the Internet became commonplace, make no specific provisions for including these non-traditional journalists. Instead, they follow the conventions of the other states by defining the protected class in terms of the working press. However, given the strong news industry voices urging acceptance of Internet journalists, the sentiment for giving these newcomers' equal rights will not linger far behind. The federal court journalist's privilege, which has evolved independently of the state-granted protections, has been reserved mostly, but not solely, for investigative reporters. Though protection for investigative journalists seems to be a major thrust of federal policy, the determination is not quite so simple. Note that from von bulow to Madden, the test for journalist's status has come down to three requirements. The claimant must (1) be engaged in investigative reporting; (2) be engaged in gathering news; and (3) possess the intent at the inception of the news-gathering process to disseminate this news to the public. Some of the courts' insistence on investigative purpose rightly recognizes one type of reporting that is in need of the privilege. In fact the underlying rationale for the privilege as discussed by Blasi rests in the investigative arena. But while investigative reporters are essential partakers of the privilege, they are by no means the only needy group. All journalists, especially those charged with gathering the news, benefit from the use of the privilege at one time or another in acquiring vital information that may not be obtained elsewhere and that may be valuable to news consumers. Some courts, however, may have gone farther than necessary in extending the press' privilege to include newsletters, which serve as important vehicles of communication but do not encompass many of the journalistic functions that would invoke the protection of the privilege. The legal statutory and common-law definitions of journalists are highly protective of traditional news persons. Limiting the privilege to traditional journalists in this manner could help preserve the shield laws in their current state. Moreover, a more narrowly scoped privilege would accommodate the law practitioners' concerns about privilege expansion and ward off potential constitutional attacks for being overinclusive. On the other hand, the definitions could exclude those engaged in news gathering activities that are protected by the First Amendment but are shelved on a lower tier. What are the alternatives? Any suggestion that journalists justify their privileged placement through certification or licensing like other professions-public relations, accounting, law and medicine-is likely to gain little, if any, support. It is also possible to revise shield laws to include other non-traditional news gatherers who need to use the privilege. Short of repealing the statutes, courts facing these dilemmas could themselves expand the definition of journalists to include some new methods of communication. By exercising their authority to determine which persons qualify for the privilege, judges could employ a totality test, using a combination of statutory and court factors and allow a privilege for non-traditional news gatherers who need it. A test that takes into account the total circumstances of the claimant's activities could be broad enough to include not only investigative reporters but other journalists as well. A careful balance must be made, however, to guard against a devolution that embraces the concept of Everyman as a journalist. A total-circumstances approach would allow court examination of these privilege seekers on a case-by-case basis, shielding those who have a true journalistic purpose for protection. This could enable a variety of disseminators, including new Internet publishers, to make use of the privilege. Attempting to draft a bright-line test that exceeds the definitions in state statutes and cases might not be practical. The experience of a century of shield laws, the post-Branzburg formulation of the journalist's privilege and the recurring concerns expressed by Justice White over the definition of the protected class have some bearing on who gets the benefit of the privilege. Various communicators have sought an extension of the privilege, capitalizing on the lack of codified standards for entry into the profession. However, the intervening years since Branzburg have brought the experience of legislative draftsmanship and the wisdom of judicial precedent to bear on the question of the journalist's status, with satisfactory results. Following the dicta in Branzburg would provide no safeguards against everyone theoretically claiming the journalist's privilege. But, practically, it makes for unsound policy. Privilege should be reserved for those who have a substantial need. In other words, it should be limited to the class or classes of persons that the statutes and common law are intended to protect. [1] David H. Weaver and G. Cleveland Wilhoit, The American Journalist in the 1990s: U.S. News People at the End of an Era, (Mahwah, NJ: Lawrence Erlbaum Associates Publishers, 1996), 248. Having studied the makeup of journalists over the years, the authors defined them as persons who were responsible for preparing and transmitting news articles and other information--fulltime reporters, writers, correspondents, columnists, photojournalists and editors. [2] In Re: Mark Madden; Titan Sports v. Turner Broadcasting Systems, 151 F.3d 125 (3d Cir. 1998). [3] See Lawrence K. Grossman, "From Marconi to Murrow to--Drudge?" Columbia Journalism Review, 38 (July/August 1999): 17-18; Mike Godwin, "Who's a Journalist?--II: Welcome the New Journalists on the Internet" Media Studies Journal 13 (Spring/Summer 1999): 38-42; J.D. Lasica, "Citizens and Budding Writers and Editors," American Journalism Review, (July/August 1999): 92. Not everyone, however, is ready to accept these non-traditional journalists. See Ted Gup, "Who's A Journalist?--I: The Answer Lies in Training, Character and Attitude," Media Studies Journal 13 (Spring/Summer 1999): 34-37. Another commentator refuses to accept the paparazzi as journalists, referring to them instead as freelancers who are blurring news, entertainment and gossip. Tara Sonenshine, "Is Everyone A Journalist?" American Journalism Review (October 1997): 11-12. [4] Laurence B. Alexander and Leah Cooper, "Words That Shield: A Textual Analysis of the Journalist's Statutory Privilege," Newspaper Research Journal 18 (Winter/Spring 1997): 51-71; Laurence B. Alexander and Ellen M. Bush, "Shield Laws on Trial: State Court Interpretation of the Journalist's Statutory Privilege, Notre Dame Journal of Legislation 23 (1997): 215-230; Carl C. Monk, "Evidentiary Privilege for Journalists' Sources: Theory and Statutory Protection," Missouri Law Review 51 (Winter 1986): 3-9, arguing that the privilege is based on utilitarian theory. Nonconfidential sources, which are important to journalists' news gathering, also get much-needed protection. Anthony L. Fargo, "The Journalist's Privilege for Nonconfidential Information in States with Shield Laws," Communication Law & Policy 4 (Summer 1999): 325-354. [5] Alicia C. Shepard, "Anonymous Sources," American Journalism Review (Dec. 1994): 18-25. [6] Shepard, "Anonymous Sources," American Journalism Review (Dec. 1994): 18-25. [7] Vincent Blasi, "The Checking Value in First Amendment Theory," American Bar Association Research Journal 1977 (1977): 521-649. [8] Patrick M. Garry, Scrambling for Protection: The New Media and the First Amendment (Pittsburgh: University of Pittsburgh Press, 1994), 76. [9] John E. Osborn, "The Reporter's Confidentiality Privilege: Updating the Empirical Evidence After A Decade of Subpoenas,"* Columbia Human Rights Law Review 17 (1985): 57, 62, n.24 at 62, n. 24. [10] 408 U.S. 665 (1972). [11] 408 U.S. at 704. [12] Louisville Courier-Journal reporter Paul Branzburg was asked to identify two young people he observed synthesizing hashish from marijuana and testify about his observations of the sale and use of drugs after his report on drug use. A Massachusetts television station reporter, Paul Pappas, and The New York TimesEarl Caldwell, were called before separate grand juries to testify about their observations of the Black Panthers when they spent time with the group. [13] Branzburg, 408 U.S. at 681 (1972). [14] Branzburg, 408 U.S. at 682-683. [15] Branzburg, 408 U.S. at 686-688 (citing U.S. v. Bryan, 339 U.S. 323 (1950)). [16] Branzburg, 408 U.S. at 705 (citing Lovell v. Griffin, 303 U.S. 444, 450, 452 (1938)). [17] John Henry Wigmore, Evidence in Trials at Common Law 8 (McNaughton Rev. 1961): 527. Wigmore established prerequisites for a privilege that essentially restricts the expansion of privileges beyond those recognized at common law. [18] Kraig L. Baker, "Are Oliver Stone and Tom Clancy Journalists? Determining Who Has Standing to Claim the Journalist's Privilege, " Washington Law Review 69 (1994): 739-764. [19] Gilbert Cranberg, "A Downside to Shield Laws," Columbia Journalism Review 29 (March/April 1991): 48. [20] Andrew Bradford, "Sentiments on the Liberty of the Press," in Leonard Levy, Freedom of the Press from Zenger to Jefferson, (Durham, N.C.: Carolina Academic Press, 1996) 41. [21] Garry, Scrambling for Protection. [22] Garry, Scrambling for Protection, 159-160. [23] Grossman, "From Marconi to Murrow to--Drudge?" Columbia Journalism Review, 38 (July/August 1999): 18. [24] John Schwartz, "Journalism's Old Rules Should Apply to Cyber-Libel," The Washington Post, 26 January 1998, p. F20. [25] Clay Calvert, "And You Call Yourself A Journalist?: Wrestling With a Definition of 'Journalist' in the Law," Dickinson Law Review 103 (Winter 1999): 411-451. [26] Matthew F. Jacobs, "Professionalism in Journalism," in History of the Mass Media in the United States: An Encyclopedia, ed. Margaret A. Blanchard (Chicago and London: Fitzroy Dearborn Publishers, 1998), 537-538. [27] Exceptions are found in Illinois and Delaware, where elaborate provisions include limitations on numbers of hours and weeks employed. Similarly, freelancers and stringers are generally not singled out for coverage by statutes. However, the language of nearly all state statutes allows an argument to be made for covering these news gatherers based on a lack of distinction between their duties and those of the daily working reporters and editors. [28] Cranberg, "A Downside to Shield Laws," Columbia Journalism Review 29 (March/April 1991): 48. States like Illinois includes in the privileged class "any person who was a reporter at the time the information sought was procured or obtained." 735 ILCS 5/8-902 (1999). [29] Campus Communications, Inc., v. Freedman. 374 So.2d 1169 (Fla. Dist. Ct. App. 1979) (per curiam) (A state appellate court gave its tacit approval to applying the privilege to student journalists). In accord with this state court's approval is a New York federal district court determination in 1993 that a volunteer student reporter for a law school newspaper could invoke the federal constitutional privilege. Blum v. Schlegel, 150 F.R.D. 42, 45 (W.D.N.Y. 1993). The court said it was irrelevant whether a person was a paid, professional journalist as long as that person gathered the information sought for the purpose of disseminating it to the public. [30] For example, a "newspaper" was defined for legal and public policy purposes in New Jersey as "a paper that is printed and distributed ordinarily not less frequently than once a week and that contains news, articles of opinion, editorials, features, advertising, or other matter regarded as of current interest, has a paid circulation and has been entered at a United States post office as second class matter." N.J. Stat. Ann.  2A:84A-21a (West 1999). [31] Magazines or "other periodicals" were named or referenced in 23 of the state statutes. But only 13 of the shield states mentioned magazines specifically by name. Perhaps because of the variety of magazines "or other periodicals" on the market, fewer states chose to include them by reference. Other statutes define newspaper in terms similar to those of New Jersey. See N.Y. C.L.S. Civil Rights Law  79-h (Law Co-op 1999) and N.M. Stat. Ann.  11-514 (Michie 1999). In addition to the New Jersey strictures, New York requires that newspapers and magazines be circulating for at least a year before the privilege attaches. [32] N.J. Stat. Ann.  2A:84A-21a (West 1999). The postal requirement appears to be an additional , albeit official, check on the status of the entity employing the person claiming the privilege. U.S. Post Office regulations restrict second-class mailing privileges to publishers and registered news agents approved for mailing periodicals at a special rate. U.S. Postal Service, Publication 201 Consumer's Guide to Postal Services and Products. For a discussion of the origins and development of the policy governing periodicals, see Richard B. Kielbowicz, "Postal Subsidies for the Press and the Business of Mass Culture, 1880-1920," Business History Review 64 (Sept. 22, 1990): 451-488. [33] New Mexico, N.M. Stat. Ann.  11-514 (Michie 1999), and Rhode Island, R.I. Gen. Laws  9-19.1-1 (1998), exclude the paid circulation requirement. [34] N.Y. C.L.S. Civil Rights Law  79-h(a)(2) (Law Co-op 1999) reads: "Magazine" shall mean a publication containing news which is published and distributed periodically, and has done so for at least one year, has a paid circulation and has been entered at a United States post-office as second-class matter. [35] Cranberg, "A Downside to Shield Laws," Columbia Journalism Review 29 (March/April 1991): 48. [36] Alaska Stat.  09.25.390(1)(A)(I)(1999); Ind. Code Ann.  34-46-4-1(1)(A)(Burns 1998); La. Rev. Stat. Ann.  45: 1451(a) (West 1999). [37] Dale R. Agthe, "What Constitutes Newspaper of "General Circulation" Within Meaning of State Statutes Requiring Publication of Official Notices and the Like in Such Newspaper," ALR 4th 24 (1996) :822-864. [38] Agthe, "What Constitutes Newspaper of 'General Circulation,'" ALR 4th 24 (1996) :822-864. [39] Colo. Rev. Stat.  13-90-119 (1998); Neb. Rev. Stat.  20-144 (1999); Okla. Stat.  2506 (1998) and Or. Rev. Stat.  44.510 (1997). [40] Ill. Ann. Stat. ch.735,  5/8-902 (1999) and Mont. Code Ann.  26-1-902 (1998). [41] Alaska Stat.  09.25.390 (1999). [42] N.M. Stat. Ann.  11-514 (1999). [43] Von Bulow v. von Bulow, 811 F.2d 136 (2d Cir. 1987). [44] See Baker v. F&F Investment, 470 F.2d 778 (2d Cir. 1972). [45] Shoen v. Shoen, 5 F.3d 1289 (9th Cir. 1993). [46] Watkins' primary source for the book was family patriarch and U-Haul founder Leonard Shoen, who implicated his sons, Mark and Edward, in the death of their sister-in-law, Eva Berg Shoen. The subpoena issued to Watkins grew out of a lawsuit filed by the two sons against their father for damage to their reputations. [47] Shoen v. Shoen, 5 F.3d 1289, 1293 (9th Cir. 1993). [48] At a minimum, the court concluded, the plaintiffs should depose Leonard Shoen before seeking Watkins' tapes and notes. See Shoen v. Shoen, 5 F.3d 1289, 1293, 1296-1298 (9th Cir. 1993). Before the decision was announced, however, the plaintiffs deposed Shoen and attempted to give the impression that they had exhausted all reasonable alternative sources. Once again, they demanded Watkins' tapes and notes. When Watkins refused, he was held in contempt by the district court and ordered incarcerated until he complied. However, the U.S. Court of Appeals for the Ninth Circuit stayed the incarceration order and found that the plaintiffs had failed to overcome the Watkins' assertion of the journalist's privilege by showing that the material is (1) unavailable despite exhaustion of all reasonable alternative sources; (2) noncumulative; and (3) clearly relevant to an important issue in the case. Shoen v. Shoen, 48 F.3d 412 (9th Cir. 1995). Book authors are expressly protected by shield laws in several states. Ga. Code. Ann.  24-9-30 (Michie 1999); Nebraska, Neb. Rev. Stat.  20-145 (1999); Okla. Stat.  2506 (1998); Or. Rev. Stat.  44.510 (1997); and S.C. Code Ann.  19-11-100 (1998). In Illinois and Louisiana, however, statutes do not mention book authors. Nevertheless the privilege has been interpreted by the courts to extend to book writers in those states. See Desai v. Hersh, 954 F.2d 1408 (7th Cir.), cert. denied, 506 U.S. 865, 113 S.Ct. 190. 121 L. Ed. 2d 133 (1992) and State v. Fontanille, 1994 La. App. LEXIS 191. Contra Matera v. Superior Court, 825 P.2d 971 (Ariz. Ct. App. 1992)( author was denied use of journalist's privilege after a subpoena issued for his notes and documents he collected in preparation of the book on a legislator who was a key figure in the government's sting operation. Apparently, the author had not claimed that the subpoena would cause him to reveal confidential sources and information, the only situations protected by that state's privilege) and People v. Le Grand, 67 A.D.2d 446, (1979 2d Dept.)(court denied the author use of the journalist's privilege to shield him from an order to disclose notes of an interview for an upcoming book about an alleged crime family, ruling that the privilege was for professionals journalists only and should not "be deemed to encompass those engaged in a different field of writing and research"). As with magazines and other media, those who capture non-fiction in book form also could argue for some protection in the catch-all language of sone state statutes. One state that probably would not stand for that argument is Florida, which specifically wrote book authors out of the law. Omitting all book authors could create problems for non-fiction writers who may choose to consolidate their daily or weekly reports into a work that is book length. Such a policy would leave out two of the most prominent journalists of the 20th century--Seymour Hersh and Bob Woodward. See Steve Weinberg, "From Watergate to Monicagate," The IRE Journal 23 (January/February 2000): 12-16 (identifying more than 100 investigative books written by journalists in 1999). [49] But see. Contra. Deltec Inc. v. Dun & Bradstreet, Inc., 187 F. Supp. 788 (N.D. Ohio 1960) (In that case the court refused to extend the state statutory journalist's privilege to apply to a bimonthly newsletter report on the financial status of companies and individuals). State courts, too, have interpreted the privilege to apply to newsetter staffs. See King v. Photo Marketing Ass'n Inter., 327 NW 2d 515 (Mich. Ct. App. 1982) (court recognized a privilege for a publication of an association of photodealers and photofinishers that published information on members' activities in trade newsletters and a monthly magazine) and Burnett v. Merrill Lynch, 635 A.2d 1019 (N.J. Super. 1993) (found an annual insurance rating report qualified as a "news medium," thus protecting those who publish it from producing documents upon which the ratings are based). [50] In Riley v. City of Chester, 612 F.2d 708 (3d Cir. 1979), the court held that the privilege could be overcome but only on a showing by the party seeking discovery that he or she has "exhausted other means of obtaining the information" and that the material sought provides crucial information that goes to the heart of the claim. [51] Apicella v. McNeil Laboratories, Inc, 66 F.R.D. 78 (E.D.N.Y. 1975). [52] Similarly, a federal court protected a newsletter editor from compelled disclosures of the names of confidential sources in an antitrust suit. Citicorp v. Interbank Card Association, 4 Med. L. Rptr. 1429 (S.D.N.Y. 1978). [53] Occasionally, government employees who publish newsletters have claimed the journalist's privilege to mask the identities of the responsible parties in an attempt to escape disciplinary efforts. S. K. Bardwell, "Officer Under Probe for Article Cites First Amendment," The Houston Chronicle, 5 May 1995, A26 (police officer claimed personal knowledge of wrongdoings in the union's monthly newspaper but refused to give more information to internal affairs division investigators.); Frank Klimko, "National City's Council Rejects Firefighter's Appeal of Demotion," The San Diego Union-Tribune, 30 November 1995, B14 (fire fighter refused to name the authors of articles in a union newsletter that contained sexually graphic language.) [54] For a discussion of the researcher's privilege, see Louis A. Day, "In Search of A Scholar's Privilege," Communications and the Law, 5 (Spring 1983) :3-21 and the authorities cited therein. Day favored a scholar's privilege based on academic freedom, the right of privacy, freedom of expression, or an extension of the reporter's privilege. Even as recently as 1993, doctoral candidate Rik Scarce was jailed for five months by U.S. District Judge W. Fremming Nielson for refusing to testify before a grand jury concerning his interviews with an animal rights activists suspected of participating in a raid on a university laboratory. See Victoria Slind-Flor, "Jailed Researcher Claims Shield," The National Law Journal, 9 August 1993, 3; Nicole Peradotto, "Scarce Freed: Judge Releases WSU Grad Student Jailed for Refusing to Divulge Names of those Suspected in Research Raid," Lewiston Morning Tribune, 21 October 21, 1993, 1A. [55] In Re Cusumano v. Microsoft Corp., 162 F.3d 708 (1st Cir. 1998). [56] In Re Cusumano v. Microsoft Corp., 162 F.3d 708, 714 (1st Cir. 1998). [57] In Re Cusumano v. Microsoft Corp., 162 F.3d 708, 714 (1st Cir. 1998). [58] Cukier v. The American Medical Association, 630 N.E. 2d 1198 (Ill. App. 1994). [59] Priscilla Coit Murphy, "Who Belongs to the Privileged Class? Journalistic Privilege for Non-Traditional Journalists," (paper presented to the Southeast Colloquium of the Association for Education in Journalism and Mass Communications, Gainesville, FL, March 1995). Without addressing new technologists specifically, the study found that non-traditional journalists had a decreasing likelihood of protection as the restrictions increased. [60] See In re Madden, 151 F.3d 125, 128-131 (3d Cir. 1998); Shoen v. Shoen, 5 F. 3d 1289, 1293-94 (9th Cir. 1993); von Bulow v. von Bulow, 811 F.2d 136, 142-44 (2d Cir. 1987). [61] David Noack, "Microsoft Won't Get Reporter's Notes: Judge rules against software giant's pursuit of CNet reporter," Editor & Publisher, 27 March 1999, 14. [62] Schwartz, "Journalism's Old Rules Should Apply to Cyber-Libel," The Washington Post, 26 January 1998, p. F20. [63] Samuel P. Winch, Mapping the Cultural Space of Journalism: How Journalists Distinguish News From Entertainment, (Westport, CT, Praeger Publishers 1997). [64] In Re: Mark Madden; Titan Sports v. Turner Broadcasting Systems, 151 F.3d 125 (3d Cir. 1998). [65] Madden's subpoena grew out of a lawsuit by the WCW against the WWF alleging unfair trade practices, copyright infringement and other state law claims stemming from charges that it refused to allow its wrestlers to engage in promotional competitions with WCW. [66] Howard Pankratz, "Boyles Fined for Hiding Sources," The Denver Post, 11 September 1998, B-01. [67] Cranberg, "A Downside to Shield Laws," Columbia Journalism Review 29 (March/April 1991): 48. [68] Cranberg, "A Downside to Shield Laws," Columbia Journalism Review 29 (March/April 1991): 48. Can investigators at a nonprofit center be considered journalists and make use of the privilege afforded them? Although there is no case law in this area, one commentator has raised this (specter) possibility in the context of the Center for Public Integrity, a Washington-based special-interest group that broke the stories of the White House as a bed-and-breakfast stopover for campaign contributors and the monied interests behind the campaigns to pass the NAFTA bill and defeat the Clinton universal health care plan. With a staff of 15-20 investigators, many of them former journalists, the center focuses on three or four projects a year, using journalism students and interns to build the computer data bases on which most of its reports are based. Thus, while there is an absence of case law, there appears to be sufficient journalistic contacts to make the argument for applying the privilege to such a center. Richard Harwood, "Hot Source for the Cyber-Age Media," The Washington Post 20 October 1997, A23 [69] Id. [70] New York Times v. Sullivan, 376 U.S. 254 (1964).