http://www.ohioattorneygeneral.gov/YellowBook

Ohio Protections for Sources and Source Material

http://www.dmlp.org/legal-guide/ohio/ohio-protections-sources-and-source-material

Ohio has a shield law that may protect you from having to reveal the identity of your sources. However, the shield law only appears to cover those working for newspapers, press associations, and traditional radio and television broadcast stations. Ohio state courts do not recognize a “reporter’s privilege” based on the U.S. Constitution or the Ohio Constitution. Nor do they recognize a common law privilege for reporters.

Federal courts in the Sixth Circuit Court of Appeals, which encompasses Ohio, recognize a qualified “reporter’s privilege” based on the First Amendment to the U.S. Constitution. However, the scope of this privilege is uncertain because courts in the Sixth Circuit have only addressed the reporter’s privilege in two cases.

The Privacy Protection Act may protect you against the search and/or seizure, in connection with a criminal investigation or prosecution, of materials you possess in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. This federal statutory protection applies regardless of the state in which you live.

 

Ohio’s shield law is made up of two provisions — Ohio Rev. Code § 2739.04 (broadcast) and Ohio Rev. Code § 2739.12 (newspapers).

Who is Covered?

Ohio’s shield law applies to

• anyone “engaged in the work of, or connected with, or employed by any newspaper or any press association for the purpose of gathering, procuring, compiling, editing, disseminating, or publishing news” (Ohio Rev. Code § 2739.12); or
• anyone “engaged in the work of, or connected with, or employed by any noncommercial educational or commercial radio broadcasting station, or any noncommercial educational or commercial television broadcasting station, or network of such stations, for the purpose of gathering, procuring, compiling, editing, disseminating, publishing, or broadcasting news.” (Ohio Rev. Code § 2739.04).

The shield law provisions also specify that the person seeking to protect the identity of a source must have obtained information from the source “in the course of . . . employment.”

The statutory language is broad enough to cover owners, employees, and freelancers working for newspapers, press associations, and broadcasting stations in any news-related capacity, but does not appear to cover individuals working in other media. One federal court applying Ohio law found that Dunn Bradstreet, a provider of business information, could not take advantage of the shield because it did not fit into the category of “newspaper or . . . press association.” Deltec, Inc. v. Dunn & Bradstreet, 187 F. Supp. 768 (N.D. Ohio 1960). The CMLP is not aware of any cases interpreting this statutory language in an online or non-traditional journalism context. A court could give this language an expansive interpretation, but, for now at least, online publishers should not expect to be covered by the Ohio shield law.

What Information is Protected?

The Ohio shield law protects the identity of sources only. It does not protect any other information obtained during the newsgathering process. The identity of your source need not be confidential for you to be protected by the shield.

How Strong is the Protection?

Ohio’s shield law provides absolute protection in most cases. This means that, if you are covered by the shield law, a court generally cannot order you to reveal the identity of a source regardless of the need of the party requesting it. The protection may be weaker when a criminal defendant seeks information from you, because courts must protect the defendant’s constitutional right to a fair trial (including, the ability to mount a defense). In addition, some Ohoi courts have denied protection altogether when the person invoking the shield was a defendant in a libel case.

For more detailed information about the Ohio shield law, see the Reporters Committee for Freedom of the Press’s Privilege Compendium: Ohio.

Constitutional Protection in Federal Court

Federal courts in the Sixth Circuit, which encompasses Ohio, have recognized a qualified reporter’s privilege based on the First Amendment to the U.S. Constitution. To date, courts have applied it to the identity of confidential sources only.

Who is Covered?

The scope of the federal reporter’s privilege is uncertain in federal court in Ohio. Some lower federal courts in the Sixth Circuit have applied the privilege to individuals outside the traditional press, such as writers of a non-profit organization’s newsletter and a freelance writer. These cases do not have weight as precedent, so it is uncertain whether other courts would follow them.

What Information is Protected?

The Sixth Circuit Court of Appeals has held that the reporter’s privilege protects the identity of confidential sources. The Court of Appeals and lower courts have not yet decided whether the privilege protects other information or non-confidential sources.

How Strong is the Protection?

The federal reporter’s privilege is qualified. That means that, even if you are protected by the privilege, a court or other legal body may order disclosure of the information in question upon a strong showing of need by the party seeking the information.

Federal courts in the Sixth Circuit have not determined whether the reporter’s privilege applies in cases where a criminal defendant or prosecutor in a criminal case is seeking information from a reporter. It does not apply when a grand jury issues a subpoena requesting information.

For additional information, see the Reporters Committee for Freedom of the Press’s Privilege Compendium: 6th Circuit.

Privacy Protection Act

The Privacy Protection Act (PPA) makes it unlawful for government officials to search for or seize work product or documentary materials possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication. 42 U.S.C. § 2000aa(a),(b). If you are covered by the PPA, it can protect you from both state and federal officials, regardless of what state you live in. To learn more about the PPA, see General: Legal Protections for Confidential Sources and Source Material.