No. Because the shield statute creates a qualified privilege, not an absolute one, a court can compel a reporter to testify or produce documents if the party seeking the testimony or documents can demonstrate that: (1) the information or material sought is “relevant and material” to the legal proceedings concerned; (2) the information or material sought cannot be obtained from alternate sources; and (3) the information or material sought is essential to the maintenance of the subpoenaing party’s claim or defense.
Suppose, for example, that an accident or other event covered by a newspaper engenders a civil lawsuit and one of the parties subpoenas a reporter to testify about whether individuals quoted by name in a story actually made the published comments. The reporter’s qualified privilege under the shield statute would apply, and the reporter would not be compelled to testify unless the attorney for the civil litigant demonstrated to the court: (1) that the information was relevant and material to the proceedings; (2) that there were no alternate sources for the information; and (3) that the information sought was essential to the subpoenaing party’s case. In this case, the court should first determine whether the information sought is essential to the case, and if so, then require the subpoenaing party to attempt to obtain the information directly from the persons quoted in the story or witnesses to such statements – not from the reporter.
A journalist does not, however, have a privilege against disclosure of any information, document or item obtained as a result of the journalist’s eyewitness observations of criminal or tortious conduct. Tortious conduct is that which can result in civil liability and thus a civil lawsuit. A reporter who witnesses criminal or tortious activity, or a photographer who photographs or videotapes such activity, has no qualified privilege to withhold such information if subpoenaed to produce it.