From the Fall 2008 issue of The News Media & The Law, page 37.
Every time media lawyers argue for a federal court to recognize a “common law” reporter’s privilege, one thing stands out — the lack of good law in Wyoming.
The problem has taken on a disproportionate significance, because of the nature of federal privileges. When you want to argue that a constitutional right protects a reporter, you are simply saying that the right is based on some part of that constitution, be it state or federal, or has been interpreted to do so by the courts.
But a common law right is different. This is the law that is not found in a constitution or a book of statutes; instead, it has been developed, in many cases over centuries, by courts alone. When American state courts were created, they adopted much of the common law of England. Those same standards continue to apply today, although they’ve been subject to years and years of changes.
The federal courts did not adopt the common law in the same way. Federal courts have limited jurisdiction, and are only supposed to be interpreting federal statutes or applying state law to “diversity” cases — those between citizens of different states. But the federal courts needed rules to govern issues like testimonial privileges. And so Congress created a rule of evidence that allowed federal courts to recognize such privileges based on “the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience.”
So, in arguing for a reporter’s privilege in the federal courts, lawyers have to argue that the “experience” of the many courts has been to recognize such a privilege. In the 1996 U.S. Supreme Court case that upheld this procedure, Jaffee v. Redmond, in which the court was asked to recognize a psychotherapist-patient privilege, it found that the “experience” of the state courts was unanimous — all 50 states had recognized such a privilege.
The Jaffee court never said that all 50 states had to recognize a privilege before the federal courts would, but that unanimous verdict certainly helps seal the deal.
That brings us back to Wyoming and the reporter’s privilege. Thirty-six states plus the District of Columbia have a privilege in their laws or rules (two of these — Utah and New Mexico — have recognized the privilege through court-adopted rules, not legislative acts). All of the other states — except Wyoming — have court decisions recognizing some level of a reporter’s privilege.
So why hasn’t the privilege been recognized in Wyoming?
“I’m asked that question all the time,” says Jim Angell, Executive Director of the Wyoming Press Association. “To the best of my knowledge, there has never been an attempt to pass a shield law in this state. Our legislature is very conservative, and I don’t see them giving what they consider special privileges to reporters, especially when they’re busy sealing their own records. . . . It took us two years to get some teeth in the open records law.”
One of Wyoming’s few — if not only — media attorneys, Bruce Moats, is a little more optimistic. “I believe the Legislature would pass a shield law, but the amount of protection it would provide is an open question,” Moats says. “Just look at the battle over the federal shield law.”
Moats notes that there was one effort to get a shield bill off the ground years ago, but “the move lost steam when the editor who was pushing the idea left the state.”
“There is concern among the media that because we do not have a great problem with subpoenas that we might make the situation worse by passing a statute,” Moats added. “Legislation can take unforeseen turns. If the matter comes before the courts and we get an adverse decision, then the push for a shield law may be renewed.”
And the reason the courts have not recognized a privilege may have more to do with the size of the state, rather than any steadfast opposition to protection of the newsgathering process.
“Our population is smaller than Denver, and we have about a dozen murders a year statewide,” Angell says. The state population was just under a half million in the 2000 census. In other words, courts haven’t had to deal with these issues all that often.
“No one’s gone to jail over a subpoena here,” according to Angell.
And when a prosecutor or defense attorney does issue a subpoena, it’s usually a case of “some yahoo who is too lazy to do his own work, and the judges won’t let them get away with it,” Angell says.
In a somewhat more diplomatic way, Moats agrees. “Attorneys in the state, including prosecutors, have been respectful of the role of the press and have been frugal with their issuance of subpoenas in Wyoming. These attorneys usually know their local publisher or editor personally. The subpoenas issued to the media usually seek to authenticate newspaper photographs and articles. An affidavit from the reporter or photographer usually satisfies the need and the news person does not have to appear in court.”
The only case Moats or Angell can remember going before a judge on a motion to quash was in a civil case, where a photographer had taken photos at the site of an oil spill and a civil litigant who wanted to prove an oil company was negligent subpoenaed all the photographer’s photos. A federal judge applied the balancing test of the qualified privilege and ordered disclosure, because no confidentiality was involved, even though many of the photos were unpublished.
Such recognition doesn’t necessarily surprise Moats, who said he believes the state Supreme Court “would recognize a qualified reporter’s privilege given the appropriate case.”
Thus, even with no clear protection, journalists may fare well in Wyoming. It may take one of those unfortunate cases where the balancing goes against the reporter to force the high court to respond or to spur the legislature into action. And while the ordeal is not something I would wish on any reporter, it might finally get us to that unanimous support for a common law privilege.