The state of the shield
In the wake of reporters being ordered to reveal their confidential sources,several states consider enacting shield laws
From the Spring 2005 issue of The News Media & The Law, page 23.
By Grant Penrod
Recent attempts to force reporters to reveal their sources and turn over unpublished information to government and civil litigants have spurred efforts in a number of states to enact or amend shield laws.
Journalists in 31 states and Washington, D.C., are protected by press shield laws from attempts to reveal their sources, notes or other unpublished information. The scope of the laws varies greatly. Some protect only information gained under a promise of confidentiality, while others protect any sources or unpublished information, notes or outtakes, including some information held by third parties. Some shield laws provide an absolute privilege from turning over materials or revealing sources, while others provide a qualified privilege that may be overcome by a sufficient showing of need. Privileges may also apply differently in criminal and civil cases.
While most states without a shield law provide some protection through judicial decisions, a shield law gives journalists more definite protection and may provide more protection than is currently recognized in the courts. As the number of states with shield laws increases, the better the argument that the federal courts should recognize a reporters privilege under the common law. (See story, page 20) But journalists in some states don’t agree that a shield law is a good idea.
Reporter’s confinement hits close to home
The case of Rhode Island television reporter Jim Taricani has spurred efforts to enact shield laws in three New England states: Connecticut, Massachusetts and Vermont. Taricani, an investigative reporter at WJAR television in Providence, R.I., spent four months confined to his home earlier this year for refusing to disclose the confidential source of a leaked FBI videotape showing a government official taking a cash bribe. Rhode Island is the only New England state with a shield law, but because Taricani’s case arose in federal court, it did him no good.
In neighboring Connecticut, Rep. James Spallone (D-Essex) sponsored a bill in January to establish a shield law. Spallone said that the bill was a response to Taricani’s case, and the cases of reporters Matthew Cooper of Time magazine and Judith Miller of The New York Times, The (New London) Day reported. Miller and Cooper were ordered jailed and fined $1,000 a day for up to 18 months for refusing to reveal their confidential sources to a grand jury investigating the government leak of CIA agent Valerie Plame’s identity. Their sentences have been stayed pending appeals, and on May 9 and10 they asked the U.S. Supreme Court to review their case.
Spallone’s bill (H.B. 5385) would provide “professional journalists” — defined as those currently or previously employed in newsgathering and dissemination — an absolute protection from being held in contempt by any governmental entity for refusing to disclose confidential sources or information gained in confidence. The bill would provide a qualified protection for other sources or unpublished news. The qualified protection from contempt could be overcome by a showing that the requested information is “highly material and relevant,” “critical or necessary” to an element of a case, and “not obtainable from any alternative source.”
Since the bill would provide protection from contempt and not a privilege to prevent disclosure, it might not apply when information is sought from third-parties, such as telephone or Internet service providers, or when the journalist has been sued and the penalty is a default judgment rather than being held in contempt.
A public hearing on the bill, which was referred to the legislature’s Joint Committee on Judiciary, was conducted March 7.
Opposition to the bill came from a surprising source. Chris Powell, managing editor of the Manchester Journal Inquirer, testified against the bill at the hearing and wrote a column echoing those comments in the Providence (R.I.) Journal-Bulletin.
“Should Connecticut have a ‘shield law’ for journalists? Not if the state wants to remain a democracy,” he wrote in the March 15 column in which he instead suggested that the legislature strengthen the state’s open government laws.
The Taricani, Miller and Cooper cases “have little impact on press freedom, ” he continued, maintaining that a shield law would set up the press as a “privileged class.”
“Everyone has the right to say and publish whatever he wishes,” Powell wrote. “But everyone also has the obligation to give testimony relevant to the work of society’s democratic institutions.”
No other action has been taken on the bill.
Further north, a bill was introduced in the Vermont House of Representatives by Reps. Anne Donahue (R-Northfield), Stephen Green (D-Berlin), Carol Hosford (D-Waitsfield), Jim Hutchinson (D-Randolph) and Sue Minter (D-Waterbury). The bill, modeled after Washington, D.C.’s shield law, would provide an absolute privilege from disclosure of any source — confidential or not — and a qualified privilege from disclosure of unpublished news or information.
The qualified privilege could be overcome by showing “clear and convincing evidence” that the information is relevant to a significant legal issue, that the information “could not, with due diligence, be obtained by alternative means,” and that there is an overriding public interest in disclosure.
Green, a former journalist, said interest in the bill (H.379) is high because of a case currently before the Vermont Supreme Court. WCAX television is fighting a subpoena from prosecutors for unaired footage of a riot at the University of Vermont following the Boston Red Sox victory over the New York Yankees in the 2004 American League Championship.
However, a lack of interest by state newspapers and state healthcare reform legislation have turned attention away from the shield bill for now. “If I don’t get it through this session, it’ll be a high priority for me” in the next session in January, Green said.
In Massachusetts, a committee of journalists and news executives has been put together to draft a bill, with input from legislators and the public. Although the committee meets for the first time in May, New England Cable News Vice President Charles Kravetz organized a statewide media open house in March, and response was positive.
“Unlike 1984, which was the last time there was such an effort in Massachusetts, this year there is near unanimity about the need for a shield law,” he said. “As more journalists across the country are confronted with punitive courts, it’s imperative that we pass a shield law now to protect journalists in the future.”
Kravetz anticipates pushing for an absolute privilege, at least for confidential sources.
It may be too late in the current session to pass a bill, so one may not be introduced until fall. “Ironically, if Miller and Cooper get sent to jail, I think it will help our case and bring focus to the issue nationally and locally,” he said. “Of course, I don’t wish that for either of them.”
Texas tackles a shield
Taricani’s case also has been cited as far away as Texas as impetus for a shield law.
In the Texas Legislature, Rep. Aaron Peña (D-Edinburg) and Sen. Rodney Ellis (D-Houston) introduced identical bills(H.B. 188, S.B. 604) that would provide an absolute privilege for sources, and a qualified privilege for information, documents or other materials. The qualified privilege could be overcome by demonstrating “by a preponderance of the evidence” that the information sought is relevant and material to the proceeding, essential to a claim or defense, and cannot be obtained from alternate sources.
The bills also contain an “eyewitness” exception that provides that no privilege would apply where a journalist observes criminal or tortious conduct.
“I think the climate out there is ripe to have some sort of protection put in place for whistleblowers. That’s essentially what this is because what a reporter’s privilege or a shield law does is it actually encourages people to come forward when they have concerns or comments to make about the government or public health and safety issues,” said Laura Stapleton, a media lawyer with Jackson Walker in Austin and member of the Texas Association of Broadcasters’ Open Government Task Force.
Citing the Taricani case, she noted that “people are realizing there really is no protection for whistleblowers anymore, at least not any constitutional protection.” Peña also cited the Taricani case as a reason why Texas needs a shield law, the San Antonio Express-News reported.
Stapleton emphasized that it is important for the bills to pass now, because the Texas legislature meets for only five months every other year. The current session ends May 31.
The House bill was referred to the Committee on Judiciary, which held a public hearing on April 18. No further action has been taken.
The Senate bill was referred to the Committee on Jurisprudence where Ellis amended the eyewitness exception so that it would apply only to observation of criminal, and not tortious conduct. The committee held public hearings in March and April, and on April 11 the committee approved a weaker version of the bill.
The new version would provide only a qualified privilege that could be overcome by demonstrating “by a preponderance of the evidence” that the information sought is relevant and material to the proceeding and is essential to a claim or defense.
The new version does not require that information cannot be obtained from alternate sources. The substitute also expanded the original eyewitness exception to encompass criminal or tortious conduct observed or participated in by a journalist.
Stapleton said the substitute “essentially took all of the teeth out of any sort of a privilege.
“It is a very middle-of-the-road approach, and one in which prosecutors will still be able to get what they need to prosecute crimes,” she said before the bill was weakened in committee. “It won’t prevent them from getting what they need, but what it will do is prevent the media from being the first source of information and possibly the only information that D.A.s use to prosecute crimes.”
Ellis will attempt to restore the bill on the Senate floor or he will withdraw it, he told the Express-News.
“If I cannot strengthen this bill to make it a true shield for sources and information — and not a sieve, I will thank the members for the use of the hall and spend the next two years convincing my colleagues why it is important to do this right,” he said.
Stapleton expects the restored version to provide the qualified privilege of the original bill, and the eyewitness exception as amended by Ellis in committee.
Weblogs lose in Maryland
In Maryland, home of the nation’s oldest reporter’s shield law, an amendment to the statute to adapt to evolving technology has been proposed and apparently rejected.
A bill, introduced by Dels. Sandy Rosenberg (D-Baltimore City) and Neil Quinter (D-Howard County), would have extended the current shield law’s absolute privilege for sources and qualified privilege for unpublished news or information to people who gather or disseminate news or information through a Weblog.
However, in addition to newspapers, broadcasters, and other traditional news disseminators, the current law also defines covered news media as “any printed, photographic, mechanical, or electronic means of disseminating news and information to the public.”
“Weblog” is defined in the bill as “an Internet Web site that uses a dated log format that is updated on a daily or very frequent basis with information about a particular subject or range of subjects.” The protection would not apply to the Weblog of a public official.
The bill (H.B. 1140) received an unfavorable report from the House Judiciary Committee March 14 and has not been acted on further.