[1] Known as the Madden test, the Court said that an individuals claiming the protections of the journalist's privilege must demonstrate the concurrence of three elements, that they: (1) are engaged in investigative reporting; (2) are gathering news; and (3) possess the intent at the inception of the news-gathering process to disseminate the news to the public.

The Court said:It is clear from the record that Mr. Madden was not investigating “news,” even were we to apply a generous definition of the word.

I say things for satire value, I say things to be funny, and sometimes I will take something like that and use it for humor value.” Furthermore, the record indicates that WCW executives told Madden to “be a little crazy, say off the wall stuff, entertain, use a lot of humor, sort of work-sort of be like the bad guy in the literal sense, not in terms of what I say is always going to be false, but in terms of what I say is going to get people excited.” Even if Madden's efforts could be considered as “newsgathering,” his claim of privilege would still fail because, as an author of entertaining fiction, he lacked the intent at the beginning of the research process to disseminate information to the public.

He, like other creators of fictional works, intends at the beginning of the process to create a piece of art or entertainment.

Fiction or entertainment writers are permitted to view facts selectively, change the emphasis or chronology of events or even fill in factual gaps with fictitious events-license a journalist does not have.