From the Spring 2008 issue of The News Media & The Law, page 24.
When his legislative assistant, a former reporter, first asked whether he might be interested in proposing a shield law for the state of Maine, Jon Hinck (D-Portland) immediately replied yes.
He knew the benefits of confidential sources, having used them himself several times while working for Greenpeace in the 1980s.
“Some of the best developments occurred because confidential sources came forward,” Hinck said, recalling one source who helped draw attention to citizens in Idaho who were not told by the government that they may face dire consequences after being exposed to nuclear materials. “All I know is that a lot of information would never reach the public unless sources could remain confidential.”
And so, it was with great pleasure that Hinck introduced the legislation.
In late April, Hinck realized the fruits of his labor when Gov. John Baldacci signed the state’s shield bill into law.
With Baldacci’s signature, Maine joined Utah in becoming the latest states to create legal privleges protecting journalists and the free flow of information from onerous subpoenas.
The states became the 34th and 35th to pass such laws, in addition to the District of Columbia, which offer varying levels of protection to journalists who face attempts to identify their sources and obtain their newsgathering materials. Hawaii stands poised to join Maine and Utah as the third state to pass a shield in 2008.
In Maine, the law that Baldacci signed was a watered-down version of the bill that Hinck offered before the state Senate Judiciary Committee, providing protections only for confidential sources, information received from confidential sources and information that would lead to discovering the identity of confidential sources.
Even though the law does not include any protections for non-confidential sources or newsgathering materials, including notes, outtakes, photographs or previous story drafts, journalists remain quite pleased with its passage.
“This provides us a really good starting point,” said Jeff Inglis, managing editor of the Portland Phoenix and president of the Maine chapter of the Society of Professional Journalists. “We wanted something to protect us and let us know where we stand. I am assured by all involved that we can revisit this if there are problems with its application.”
A judge will apply a balancing test whenever the privilege is invoked and quash any subpoena where the party seeking the journalist’s confidential information cannot show, by a preponderance of the evidence, that there is an overriding public interest in disclosure and that the identity of the source or the information is not obtainable from any alternative source and material, relevant and critical or necessary to a party’s claim or defense.
A golden rule
Utah took a slightly different path in enacting its privilege. After several attempts to introduce a legislation stalled in its early stages, the state Supreme Court took up the effort to protect the free flow of information through a rule of evidence for use in its court system.
Only New Mexico has followed a similar route in passing a rule, which applies in fewer situations than most legislative shield laws.
Jeffrey Hunt, an attorney who represented a coalition of newspapers, television stations and press associations in shaping the rule, said that ultimately the decision to pursue the rule through the court system was borne out of an interest in crafting a policy that best served the public.
“We thought the legislature would be more political and less policy driven,” Hunt said. “We thought the Supreme Court Rules Committee would be able to better reflect good public policy.”
Prior to passing the rule, Utah’s journalists were among the most exposed in the nation. It was one of only two states where the reporter’s privilege was not recognized through statute, court rule or state appellate court decision.
Now, Hunt said the rule places Utah at the forefront of jurisdictions protecting reporters’ sources and newsgathering materials.
The privilege grants near absolute protection for the name and any information that would lead to the disclosure of the identity of confidential sources.
Under the rule, a journalist will only have to identify a confidential source where there is clear and convincing evidence that the information is necessary to prevent substantial injury or death.
The rule also protects unpublished news information including notes, outtakes, photographs and tapes, though to a lesser extent than confidential sources.
Judges will apply a balancing test to determine whether such information should be disclosed, pitting the interest of a continued free flow of information to news reporters against the need for disclosure.
The test will feature a heightened standard for parties to overcome if the unpublished news information is from a confidential source, demanding that the need for disclosure “substantially” outweigh the interest in the continued free flow of information to news reporters.
Adding an additional line of defense, the rule requires a judge to review any information that otherwise passes the balancing tests. The judge would then make the final determination on disclosure only after examining the information.
The rule is not without its limits, however. Whereas a legislative shield law could have applied in administrative and legislative hearings as well, the court rule will only apply in judicial proceedings.
Ed Carter, a media lawyer and communications professor at Brigham Young University, said that the rule represents a great stride forward as Utah goes from being a state rife with inconsistent application of a reporter’s privilege to a state with some of the strongest protections for reporters in the nation.
“It was important to the judiciary to have a clear rule for trial judges to apply,” said Carter, who has represented subpoenaed reporters in court and written extensively on the state of the shield in Utah. “The legislature hadn’t provided any guidance to judges so the judiciary came along to ensure that the rule is applied clearly and uniformly throughout the state’s courts.”
It is that clarity, Hunt said, that may lead to one of the most significant windfalls from having a shield rule.
“One of the benefits of having the privilege is that it discourages subpoenas for reporters,” Hunt said. “Prosecutors and other attorneys know what they can and cannot get from reporters ahead of time now, and this rule offers a very robust protection for news reporters.”
State Attorney General Mark Shurtleff, who joined other state attorney generals in signing an amicus brief in support of Judith Miller during her battle against a subpoena in the Valerie Plame investigation, praised the rule, saying that it would “ensure the free flow of information which is so essential to open government and a democratic society,” adding that the rule “gives reporters and potential sources the confidence that their communications will be protected.”
Ben Winslow, the president of the state chapter of the Society of Professional Journalists, echoed those sentiments, highlighting that the true beneficiary of the rule is the citizens of Utah.
“First and foremost, this is about the public and the public’s right to know. It is about sources feeling comfortable coming to a reporter with important information without having to fear reprisal,” said Winslow, who faced a subpoena himself just last year.
Hawaii inches closer
Hawaii now stands on the threshold of protecting its journalists as well with a shield law awaiting the signature of Gov. Linda Lingle.
The state House and Senate unanimously approved the measure in late April before recessing for the summer. Lingle now has until July 8 to sign, veto or allow the measure to become a law without her signature.
The bill provides equivalent protections for both confidential sources and newsgathering materials, offering an absolute privilege for the covered materials in most situations. The proposed law is, however, not without exceptions.
In felony prosecutions and civil defamation actions, the measure will only offer a qualified privilege for confidential sources and newsgathering materials.
In such circumstances the privilege would not apply if the information sought was otherwise unavailable, noncumulative and necessary and relevant to the charge, claim or defense asserted.
The shield would not provide protections at all in other circumstances. If the person claiming the privilege has committed, is committing or is about to commit a crime, the privilege would not apply.
Likewise, the privilege would not apply if the person claiming it observed the alleged commission of a crime unless the interests in maintaining the privilege outweigh the interest in disclosure and the crime in question was not the disclosure of the information at issue.
The privilege also would not apply where the information sought would be “critical to prevent serious harm to life or public safety.”
Who’s who in state shield laws
Maine, Utah and Hawaii took much different approaches to addressing who ought to be able to claim protections under a state shield law.
Many states restrict the protections of their shield laws to specific media formats or to career journalists, but do not account for technological advances that can later leave state legislatures scrambling to keep up with the times.
Alabama is currently considering revising its shield law after courts refused to apply the law to a magazine reporter who used anonymous sources in a story exposing a night of debauchery involving the University of Alabama’s then-head football coach Mike Price.
The state shield law specifically limits its protections to journalists working for a “newspaper, radio broadcasting station, or television station.”
Other states face similar problems as the Internet revolutionizes communication.
“Within the field of journalism, we have been redefining what journalism is for at least the last 10 years,” Inglis said. “The Internet has given citizen journalists and bloggers a forum to perform the function of a journalist. What is a journalist — what is journalism — is becoming more broadly understood.”
Recognizing that any new rule needed to “accommodate the ever-changing methods of expression and publication,” the Utah state Supreme Court extended the protections of the law to any “publisher, editor, reporter or other similar person gathering information for the primary purpose of disseminating news to the public.”
Although Hawaii only extends its shield law to journalists who are or were employed by newspapers, magazines and radio and television stations, the measure also contemplates other members of its protected class by allowing a judge to consider extending its application to other would-be journalists on a case-by-case basis.
Non-traditional journalists such as bloggers could fall within the shield law’s purview upon showing that they regularly participate in the reporting of information of public interest, are in a position materially similar to that of a journalist and maintain materially similar interests to journalists in protecting their sources and newsgathering materials.
The Maine legislature sidestepped the issue, deciding to leave out any definition of a journalist altogether and leaving it up to a judge to determine who ought to be able to claim its protections.
After initially considering broad language that extended the law’s scope to “any person or entity professionally or regularly engaged” in the gathering and disseminating of news, the legislature left out any mention of a protected class.
Instead, as the amendment eliminating it explains, the courts may “determine on a case-by-case basis whether a person claiming the protection from compelled disclosure is eligible for such protection.”
“This opens the door for someone who is a part time watchdog blogger to get protection under the bill, no matter what their day job might be,” Inglis said. “It significantly broadens who can call on this without restricting who can claim it at all and I think a judge viewing the history of the bill would understand that who is a journalist is an ever-changing concept that should be interpreted it broadly.”
Hinck cautions that that flexibility also raises some concerns as well.
“The potential difficulty is that the people who should have the protection may not know that they have it,” said Hinck, who has already fielded questions from college journalists who were unsure whether they could call on the shield’s protections.
Ultimately, though, Hinck said he believes that the flexibility will allow judges to make sure that the law keeps with the times.
“The courts will see that the legislature wanted to give protection to journalists and whoever may be the journalist of the day, they deserve protection,” Hinck said. u