Note: This page covers information specific to Indiana. See the section on Protecting Sources and Source Material for more general information.

Indiana has a shield law that may protect you from having to reveal the identity of your sources. However, the scope of the shield law is quite narrow: it applies only to sources, not documents and information collected during newsgathering, and it appears to cover only a small class of professional journalists working in traditional media. If the shield law applies to you, it provides an absolute privilege -- a court may not legally order you to reveal the identity of your source(s).

The Indiana Supreme Court has ruled that neither the U.S. Constitution nor the Indiana Constitution creates a reporter's privilege when a reporter is subpoenaed for information in a criminal case. A previous Indiana case had ruled that a qualified "reporter's privilege" applied in civil cases, but the continued validity of this case is now in question.

Historically, federal courts in the Seventh Circuit, which encompasses Indiana, recognized a qualified reporter's privilege based on the First Amendment to the U.S. Constitution. However, a recent case casts serious doubt on the continued validity of a federal reporter's privilege in Indiana.

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.

Indiana does not recognize any common law privilege for newsgatherers.

Shield Law

Source and Statutory Text

Indiana's shield law, located at Ind. Code § 34-46-1, -2, states:

Applicability of chapter

Sec. 1. This chapter applies to the following persons:

(1) any person connected with, or any person who has been connected with or employed by:

(A) a newspaper or other periodical issued at regular intervals and having a general circulation; or

(B) a recognized press association or wire service;

as a bona fide owner, editorial or reportorial employee, who receives or has received income from legitimate gathering, writing, editing and interpretation of news; and

(2) any person connected with a licensed radio or television station as owner, official, or as an editorial or reportorial employee who receives or has received income from legitimate gathering, writing, editing, interpreting, announcing or broadcasting of news.

Privilege against disclosure of source of information

Sec. 2. A person described in section 1 of this chapter shall not be compelled to disclose in any legal proceedings or elsewhere the source of any information procured or obtained in the course of the person's employment or representation of a newspaper, periodical, press association, radio station, television station, or wire service, whether:

(1) published or not published:

(A) in the newspaper or periodical; or

(B) by the press association or wire service; or

(2) broadcast or not broadcast by the radio station or television station;

by which the person is employed.

Who is Covered?

The Indiana shield law only covers employees and owners of newspapers, periodicals, recognized press associations, and wire services, and owners, officials, and employees of licensed radio and television stations. The statute imposes an additional requirement that the person invoking the shield receive income in connection with his or her news-related activities. These limitations appear to exclude from the shield's coverage amateur journalists and professional journalists working in media others than the traditional forms listed in the statute. That said, the CMLP is not aware of any Indiana cases interpreting this language in an online context, and it is possible that a court could construe this language to include websites and other online platforms for publishing information and commentary. See, e.g., O'Grady v. Superior Court, 139 Cal. App.4th 1423 (Cal. Ct. App. 2006) (interpreting similar statutory language in California shield law as covering online news website). For audio and video content creators, the statutory language limiting protection to an employee, official, or owner of "a licensed radio or television station" may constitute a significant barrier to coverage. The "income" requirement would create a significant barrier for all kinds of amateur journalists and other online publishers who do not make money from their activities.

What Information is Protected?

Indiana's shield law protects only the identity of a source. This protection applies whether information from the source is published or unpublished. The law is not clear on whether you must promise confidentiality to a source in order to obtain the protection of the shield law.

How Strong is the Protection?

When the shield law covers you, its protection is absolute. In such a situation, a court or other legal body cannot force you to reveal the identity of your source. The shield applies equally in both civil and criminal cases, and at least one Indiana court has applied the shield when the person invoking the shield was a party to the lawsuit. See Jamerson v. Anderson Newspapers, Inc., 469 N.E.2d 1243 (Ind. App. 1984) (applying the shield to a reporter sued for libel).

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

Constitutional Reporter's Privilege in Indiana State Courts

Indiana's shield law is not the only possible source of protection for your sources and newsgathering material. Courts in some states have interpreted the First Amendment to the U.S. Constitution and similar clauses in their state constitutions as creating a qualified privilege for reporters. The Indiana Supreme Court has ruled, however, that neither the U.S. Constitution nor the Indiana Constitution creates a reporter's privilege when a reporter is subpoenaed for information in a criminal case. In re WTHR-TV, 693 N.E.2d 1 (Ind. 1998). A previous Indiana case had ruled that a qualified reporter's privilege based on the First Amendment to the U.S. Constitution applied in a civil case when unpublished source material was sought from a non-party reporter. In re Stearns, 489 N.E.2d 146, 149-51 (Ind. Ct. App. 1986). The court held that the person seeking source material had to establish three elements in order to overcome the privilege:

(a) the material sought is highly relevant;

(b) there is a compelling need for the information sufficient to override the First Amendment privilege; and

(c) the party has been unsuccessful in securing the information from other sources.

In light of the WTHR-TV case, however, the continued validity of the Stearns case, and the continued existence of a federal reporter's privilege in Indiana state courts, is in doubt. Therefore, at least in Indiana state court, you may not want to put much reliance on a constitutional reporter's privilege for sources or source material.

Constitutional Privilege in Indiana Federal Courts

Until recently, it appeared that federal courts in the Seventh Circuit, which encompasses Indiana, recognized a qualified privilege based on the First Amendment to the U.S. Constitution. The courts recognizing this privilege applied it to both the identity of confidential sources and unpublished information (whether confidential or non-confidential) collected or prepared during newsgathering. Before ordering disclosure of covered information, the courts applied a balancing test considering the media's interests in protecting the information, the relevance of the material sought, and whether the source was confidential.

A significant recent case, McKevitt v. Pallasch, 339 F.3d 530 (7th Cir. 2003), casts serious doubt on the continued validity of the federal reporter's privilege in the Seventh Circuit. Unfortunately, the decision was written in an enigmatic style that makes it difficult to know for sure whether future attempts to invoke the federal reporter's privilege are foreclosed in Illinois. Therefore, you cannot rely on their being a constitutional reporter's privilege for your sources or source material in Indiana federal courts.

For additional information on the federal reporter's privilege in the Seventh Circuit before the McKevitt case, see the Reporters Committee for Freedom of the Press's Privilege Compendium: 7th 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.