Kansas Legislature dodges vote to approve reporter’s shield law

From the Spring 2002 issue of The News Media & The Law, page 45.

Supporters of a proposed Kansas shield law that would protect reporters from forced disclosure of sources and notes will have to make their case to a group that advises the state Legislature.

After a state House committee declined to vote on the shield law proposal in February, it sent the bill to the Kansas Judicial Council for review instead. The council, which includes judges and attorneys, will conduct hearings and recommend whether the Legislature should consider the bill during next year’s legislative session.

“We’re not discouraged by what has happened,” said Jeff Burkhead, executive director of the Kansas Press Association. “We know this can be a long process, and we’re in it for the long haul.”

An endorsement by the influential judicial council would improve the bill’s chances of passing the Legislature, while a recommendation against such a law probably would kill the bill, said Harriet Lange, president of the Kansas Association of Broadcasters.

The Kansas Press Association and the Kansas Association of Broadcasters lobbied for the bill. As originally written, the legislation would have given journalists a qualified privilege against compelled disclosure of their sources or notes in any legal proceeding or to any investigative body.

The bill was amended to provide an absolute shield against disclosure of confidential sources and confidential information. A qualified privilege would apply to nonconfidential information. A party seeking a reporter’s nonconfidential sources or notes would have to establish that the information was relevant to the case, that it could not be obtained by alternative means and that the party had a compelling and overriding interest in disclosure.

The House Federal and State Affairs Committee gave the bill a fairly hostile reception when the panel held a hearing in February, said Rick Thames, editor of The Wichita Eagle.

Some lawmakers questioned the need for a shield law and suggested it would grant news organizations more power without requiring more responsibility in newsgathering, an Associated Press account of the hearing said.

If the Legislature eventually enacts the bill, Kansas would join the 31 states, along with the District of Columbia, that provide journalists with some form of protection against forced disclosure of their sources and notes.

A shield law was proposed in Kansas at least twice in the 1970s, but those bills never reached a floor vote, said Mike Kautsch, a professor at the University of Kansas law school who supervises the school’s Media Law Clinic.

Two events provided the impetus for the most recent effort: a subpoena fight involving The Wichita Eagle and a research project at the University of Kansas law school.

Wichita Eagle reporter Tim Potter received a subpoena in April 2000 from prosecutors for his notes from an interview with a murder suspect. When the newspaper refused, a judge found it in contempt and imposed a $500-a-day fine.

The newspaper responded by publishing the notes and a transcript of one taped interview on its Web site. The newspaper turned over the information to the district attorney 20 minutes after posting the notes on the Internet. By publishing the information, the newspaper was able to stick to its policy of not giving unpublished notes to government authorities.

“I realized in Kansas we were very vulnerable to this happening again,” Thames said.

After the Eagle‘s battle, the Media Law Clinic at the University of Kansas law school assessed shield laws in other states and gave the information to Kansas media. The project included a model shield law written by Ann Premer, a law student participating in the clinic. The model law became the basis for the bill that press groups proposed to the Legislature.

Thames believes a shield law would preserve the free flow of information to the public. Sources who are reluctant to talk to police are more likely to tell reporters information that is important to the public if they know that reporters will not be threatened with fines or jail, Thames told the committee.

A shield law would keep the Kansas press “independent, free and fully capable of reporting all of the news its citizens need to hear,” he told lawmakers. (H.B. 2798) — MD