Second, the concern arises that investigative and legal considerations will penetrate the processes of collecting and editing journalistic information, in a way that will harm the important role of the press in bringing information to the public. For example, a source may consider what he is revealing to the journalist, knowing that even content that is left on the floor of the editing room may easily become evidence that will be used in a legal proceeding. Third, requiring a journalist to sort and provide raw materials, which sometimes include hours and hours of information, may impose a heavy burden on the journalist's time and resources, in a way that can in itself harm his work (see the United States:United States v. La Rouche Campaign, 841 F.2d 1176,1182 (1st Cir. 1988) (hereinafter: Matter La Rouche)). and a fourth, requiring the journalist to disclose the raw materials may create a negative incentive with regard to the preservation of journalistic raw material that does not enter the finished product, for example, due to a desire to avoid the necessary burden of delivering them when the time comes (see the United States: Gonzales v. NBC, 194 F.3d 29,35 (2nd Cir. 1998)).
- When we refer to case law in the United States, we note that some American courts have recognized relative journalistic privilege even with respect to raw materials that remain on the floor of the editing room (for a review of the various approaches in case law in the United States, see:Olivia S. Hiltbrand, Protecting Promises: Shielding Journalists against Compelled Disclosure, 11-18 (Ohio State Legal Stud. Rsch. Paper No. 940,2025); Anthony L. Fargo, Reconsidering the Federal Journalist's Privilege for Non-Confidential Information: Gonzales v. NBC, 19 Cardozo Arts & Ent. L.J.. 355,370-387 (2001)). The courts that recognized such privilege, both in civil and criminal proceedings, warned against making the disclosure of journalistic raw materials the default, and discussed various policy considerations that support the expansion of the privilege - considerations that I have already discussed above (see, for example: the case La Rouche, at p. 1182; Shoen v. Shoen, 5 F.3d 1289,1295-1296 (9th Cir. 1993); United States v. Cuthbertson, 630 F.2d 139,147 (3rd Cir. 1980)).
With regard to the removal of journalistic privilege, a number of courts in the United States have determined that the threshold for the removal of confidentiality may be affected by the fact that it is non-confidential material, and have formulated case law tests that - as is the trend in Israel - focus mainly on the relevance and necessity of the requested raw material (see, for example: Sokolow v. PLO, No. 04 Civ.397 (GBD) (RLE), 2012 U.S. Dist. LEXIS 127040, at *10-11 (S.D.N.Y. Sept. 6,2012); Mark v. Shoen, 48 F.3d 412,416 (9th Cir. 1995)). It is interesting to note that in one of the cases heard in a federal court, in connection with a criminal proceeding, the court criticized a general and vague claim of relevance raised by the applicant in relation to some of the materials requested, and held that journalistic confidentiality does not allow for a "fishing trip" even when it comes to non-confidential materials (Williams v. NBC Universal Media LLC, No. 25-mc-00122 (LJL), 2025 U.S. Dist. LEXIS 165078, at *20-21 (S.D.N.Y. Aug. 25,2025)) (hereinafter: Matter Williams)).
- And to be precise: This is not any raw materialOtherwise, we find that the scope of the privilege is expanded beyond recognition. As mentioned above, the recognition of journalistic privilege is based on the assumption that the public has an interest in preserving the institution of journalism as a professional and effective institution. To this end, we must maintain one of the few tools available to the journalist to carry out his work - the relationship of trust that is forged between him and his sources. Relations of trust establish justification for protecting raw materials under the wings of confidentiality, and in order to determine the boundaries of journalistic privilege, we must once again ask ourselves what is the nature of the relationship of trust by virtue of which the journalistic material was born into the world. It is clear that not all journalistic raw material is the product of the special relationship of trust that we seek to protect. For example, raw materials collected in the framework of casual street interviews are not similar to raw materials collected in the framework of an in-depth interview conducted over a period of several months. Similarly, the raw materials of a quality interview that the journalist worked on while investing his best energy to obtain the materials are not similar to raw materials that were placed at the door of the journalist as they are, without investing any effort to obtain them. It should be clarified that the aforesaid does not set any precedents - for the tribe or for the sake of kindness - regarding the entire possible range of raw materials that may be in the hands of a journalist. Naturally, the decision in each case depends on the concrete circumstances, including the circumstances in which the material reached the journalist, and I do not necessarily rule out the possibility that the privilege will also apply in relation to other types of raw materials if there is appropriate justification.
Therefore, when determining whether the journalistic privilege applies to raw materials wherever they are, even those for which they have not been determined to be "not for citation", the court must examine, inter alia, the The nature and duration of the relationship between the journalist and the source; the The Degree of the Relationship of Trust that yielded the requested material; the Scope of reliance The source is about the journalist.
- [As an aside, it is worth mentioning another approach that was brought in case law according to which a distinction must be made Between "Source" and "Interviewee":
"For the purpose of outlining the image of the journalistic source, I am of the opinion that it is possible to use two sub-tests, which, if met, will protect the journalistic source's name, protect information that will lead to its identification, and examine the possibility of imposing confidentiality on other information that it has provided, even if it has no potential to lead to its identification.