Chapter 15: Oregon’s Shield Law

Oregon’s shield law, ORS 44.510 through ORS 44.540, provides broad protection for reporters and others against compelled testimony, production of evidence and searches.

This law protects people connected with, employed by or engaged in a medium of public communication, including print and broadcast media, books, periodicals, pamphlets, wire services or feature syndicates. The protection extends beyond information related to news and includes unpublished notes, out-takes, photographs, tapes or other information, regardless of whether it is related to published information.

The statutes protect reporters from being compelled to disclose: (1) a source of information obtained in the course of work, regardless of whether the information has been published; and (2) unpublished information obtained or gathered in the course of work. Reporters also are protected from searches of their papers, effects or work premises, unless there is probable cause to believe the reporter has committed, is committing or is about to commit a crime.

The protection is not limited to situations where a relationship or pledge of confidentiality exists. The protection is not lost if the reporter: (1) disclosed the information, source or related information elsewhere; or (2) ceases to be connected with, employed by or engaged in a medium of public communication.

Statutory exceptions:

There are exceptions and limitations in the statute. It does not apply to: (1) utterances by a government official or employee within the scope of his or her governmental function; (2) political publications subject to certain Oregon laws regulating political advertising and publications; or (3) the content or source of allegedly defamatory information, in a civil action for defamation where the defendant bases a defense on the content or source of the information.

Informant’s consent:

If the source of the information offers himself or herself as a witness, it is deemed to be a consent to the examination of a reporter or other protected person on the same subject. This provision has not been interpreted or explained in a published Oregon court decision. But it seems obvious that the provision should not affect the shield on anything other than the informant’s communication with the reporter or other protected person. The reporter or other protected person could argue this provision does not dissolve the reporter’s right to refuse to disclose (even as to the informant’s communication with the reporter), because the shield law is a right, not merely a privilege, for confidential communication. In raising this argument, the reporter may argue for state and federal constitutional protection for freedom on the press and against nonessential compelled disclosure.

Protection other than Oregon’s shield law:

The Oregon shield law protects against Oregon state legislative, executive or judicial officers or bodies. It may govern in federal court if the pending case or proceeding is a civil action and the evidence pertains to an element of a claim or defense to which Oregon law controls. (See rule 501 of the Federal Rules of Evidence.)

However, the Oregon statute will not control in some federal proceedings and usually will not apply at all to proceedings in other states. There is no broad federal shield law for reporters. Some states do not have a shield law either.

An important case development is the recognition by many courts that reporters have a “qualified privilege” against being compelled to give evidence, unless the party seeking the evidence proves that compelling disclosure is essential to the case and the information cannot be obtained elsewhere. Most of these courts base the privilege in the First Amendment of the United States Constitution or in state constitutional protections for freedom of the press and the free flow of information, which would be impaired by forcing reporters to become witnesses or require them to reveal unpublished information.

The Washington Supreme Court adopted a common law qualified privilege to preserve confidential news sources or confidential information, unless the party seeking the information shows that his or her claim is meritorious, the information sought is necessary or critical to the suit or defense, and a reasonable effort has been made to obtain the information elsewhere. In Washington state courts, this doctrine applies in civil and criminal cases. A reporter who is not a party to the action will receive the greatest protection under the privilege. A reporter who is a defendant in the action will receive less protection. A reporter who is a plaintiff will receive little or no protection. (Clampitt v Thurston county, 98 Wn2d 638,658 P2d 641 (1983); state v Rinaldo, 102 Wn2d 749, 689 P2d 392 (1984).

Elsewhere, several states and federal courts approved the reporter’s qualified privilege in civil cases; some approved it in criminal cases; and some approved it for “qualified” protection of not only information received in confidence but also non-confidential, unpublished information.

In criminal cases, the defendant’s constitutional right to a fair trial may overcome the shield law and qualified privilege.

While there is no broad federal shield law for reporters, there is a federal statute forbidding government offices or employees investigating or prosecuting a crime to search for or seize any work product of someone “reasonably believed to have a purpose to disseminate to the public a newspaper, book, broadcast or other similar form of public communications in or affecting interstate or foreign commerce.” The statutes has exceptions and forbids only searches, not subpoenas. (Privacy Protection Act of 1980, P.L. 96-440, 42 U.S.C. sections 2000aa et seq.).

In addition, the U.S. Department of Justice has published a formal policy to minimize Justice Department subpoenas or interrogation, indictment or arrest of news media members or subpoenas of their telephone toll records. These guidelines are not law but demonstrate an intent by the Justice Department to discourage investigative and prosecutorial activities against the news media. Administrative disciplinary action may be taken if the guidelines are violated. (42 U.S.C. section 2000aa-12; Code of Federal Regulations, Title 28, section 50.10).