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Example scenario

If I am a reporter and I write an article from a source who did not want to disclose his identity and I signed a contract to never disclose his identity. But the court now demands that I release the identity of this source. Which must I follow? The contract or the subpoena?

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Even within the United States, this would depend upon the jurisdiction involved. Some jurisdictions recognize a legal privilege of a journalist to keep confidential sources secret (also called a "reporter's privilege"), while others do not.

There is a split of authority on the question within the various circuits of the U.S. federal court system, and there is also a split of authority between different U.S. states.

The First, Second, Third, Fifth, Eighth, Ninth, Tenth, Eleventh, and D.C. Circuits have all held that a qualified reporter's privilege exists. In the recent case of U.S. v. Sterling, the Fourth expressly denied a reporter's privilege exists. Furthermore, forty states and the District of Columbia have enacted statutes called shield laws protecting journalists' anonymous sources.

Three U.S. Court of Appeals circuits, the 6th, the 7th and the Federal Circuit, do not have any controlling case law on the subject. Ten U.S. states do not have shield laws protecting journalists' anonymous sources.

The U.S. Department of Justice, as a matter of policy, seeks to compel journalists to disclose their anonymous sources only under specified conditions where the need is great, but this policy is not a defense available to a journalist in a case brought by the U.S. government.

In the absence of a legal privilege, the journalist could be incarcerated until the information is disclosed or the need for the information is moot, for contempt of court. Quite a few journalists in the United States, faced with that choice, have opted to be incarcerated rather than to reveal a source.

If the subpoena is upheld, even if the face of a good faith effort of the journalist to quash the subpoena on the basis of a legal privilege or other grounds, if the journalist does comply with the subpoena, the breach of the non-disclosure contract is legally excused and cannot be a ground for the journalist to be legally liable to the informant.

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    A good answer. I'd only add the following: (1) a subpoena is typically not a court order (i.e., an order from a judge); it moves the court closer to issuing an order, but it might better be though of as a demand to either comply or explain why you shouldn't have to; and (2) when there is a court order, the answer to "Which takes precedence, the court order or X?" is basically always the court order. – bdb484 Aug 9 '18 at 10:19
  • @bdb484 In the jurisdictions where I practice, an arrest warrant issues as a matter of course if someone fails to appear at a court hearing, and if a subpoena is to a deposition or documents from a non-party to the action, one could move immediately to hold someone in contempt of court without an intermediate court order. – ohwilleke Aug 10 '18 at 16:41
  • The same is generally true here, but I imagine that anyone served a subpoena would have the right to move to quash it before complying, no? I think I wasn't being as precise as I could have been, but that's what I was talking about in terms of explaining why you shouldn't have to comply. – bdb484 Aug 10 '18 at 18:54
  • @bdb484 A motion to quash (a.k.a. a motion for a protective order) has to be filed before or contemporaneously with the time that performance is due on the subpoena (and in some cases sooner). The filing of a motion to quash automatically stays the obligation to comply with the subpoena until the motion to quash is resolved in the federal system and most state systems. – ohwilleke Aug 10 '18 at 20:55

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