From the Spring 2010 issue of The News Media & The Law, page 7.
Without the protection of the law, Kansas journalists in recent decades have had to make difficult decisions when faced with subpoenas for the names of their confidential sources, unpublished notes or testimony. Some handed over the information. Some stood firm and refused to take the stand in court. One even went to jail.
Kansas lawmakers adopted what state media groups have been advocating for the better part a decade when Gov. Mark Parkinson signed a reporter shield bill into law on April 15. The law will take effect once it is added to the Kansas Statute Book on July 1.
“I hope it gives some sense of stability to reporters as they do their jobs that they can offer confidentiality when they need to and that their notes are protected to a point,” said Doug Anstaett, executive director of the Kansas Press Association. “I think it sends a message to prosecutors that the open-ended days of fishing expeditions are over.”
Before the bill passed almost unanimously in the state Legislature, there were three failed attempts since 2002 to make it past the Senate Judiciary Committee. Media groups rejoiced when the law passed the Senate by a vote of 39-1 on March 24, which was followed by the approval of its counterpart in the House of Representatives by a 116-3 vote six days later.
“My reaction was, ‘Finally,’” Anstaett said. “We just have worked tremendously hard for a number of years for this day to come, and we are encouraged by how dramatically it [passed]. That was the big hurdle.”
The bill will give journalists a “qualified” privilege from being compelled to disclose confidential sources or unpublished material, meaning that the privilege can be overcome by the opposing party. Parties seeking privileged information will have to prove that the material is relevant to the case, cannot be obtained in any other way and is of compelling interest in order for the information to be deemed presentable in court.
The legislation outlines who is a journalist under Kansas law and also balances the chilling effects of subpoenas by giving judges the authority to award reporters the amount of their legal fees if the summons is found to have been issued in bad faith. It protects anyone who is a “publisher, editor, reporter or other person employed by a newspaper, magazine, news wire service, television station or radio station who gathers, receives or processes information for communication to the public.”
“We wrestled with how to define a journalist,” said Senate Majority Leader Derek Schmidt, who cosponsored the bill with Minority Leader Anthony Hensley. “We borrowed definitions from other states and tweaked it to fit Kansas.”
It also extends coverage to online journals that regularly gather and publish news, making Kansas one of three states that explicitly address Internet-based publications in the language of their reporter’s privilege statutes. The idea for the provision came not from the press associations but from a member of the Senate Judiciary Committee.
“It was surprising because this is two years after the original bill was filed,” Anstaett said, referring to the attempt made in 2008. “In the long run, it’s a good thing because our profession is changing and newspapers are moving online.”
However, overt mention of independent bloggers in the language was avoided by lawmakers because of its broad scope.
“I expect that phrase is going to be one that results in some legal tests, and the courts will have to flush out what that means,” Schmidt said of defining “online journalists.” “This is a case where the technology is ahead of the law. The attempt is to cover online journals that have characteristics of more traditional journalism, but the boundaries are not crisp and clear.”
The law awards journalists the amount of their attorney fees and other related court costs if they are found to have been subpoenaed without reasonable cause or in bad faith.
“We thought it was important to draft language that discouraged attempts to pierce the shield unless there’s a pretty high bar,” Schmidt said. “The cost of defending or pursuing these suits is a very real factor.”
Legal fees can be a burden on journalists and are often be recovered in other types of media cases. A California appeals court in mid March affirmed a lower court’s ruling in a libel lawsuit that awarded Lake Publishing, Co. more than $100,000 in attorney fees after the court dismissed a claim over a story that ran in the Lake County Record-Bee. In an open records case, a Boone County circuit court ordered the University of Missouri to pay $75,000 in lawyer fees and $2,806 in other expenses for The Kansas City Star after the school lost its access fight with the newspaper in 2002.
“I don’t think there’s any question that stations looked at the bottom line when looking at the impact [of a story] versus what it’s going to cost us [to defend],” said Kent Cornish, president of Kansas Association of Broadcasters. “Now there is at least something to look at and for a station manager to discuss with a reporter.”
A subpoena battle in a 1977 homicide case set the previous standard for reporter’s privilege in Kansas when KAKE-TV reporter Joe Pennington refused to testify about a confidential source he cited in a story about the trial. Though the Kansas Supreme Court recognized a limited reporter’s privilege, it decided that it should not interfere with the lower court’s ruling that Pennington be held in contempt unless the information sought was proved to be irrelevant to the case. Pennington served 60 days in jail and In re Pennington became the state’s major reporter’s privilege case law for the next three decades.
“There was no question that the [Pennington] case was so unclear and really so ambiguous about the nature of reporter’s privilege that the problem really lingered after all those decades,” said Mike Kautsch, the director of the University of Kansas’s Media Law Clinic who helped craft the language of the shield law. “It only granted a privilege that was arguably weak and not very useful at all.”
The push for the law dates back to 2002 when a bill lobbied for by Kansas media groups died in committee. The bill had taken shape after Wichita Eagle reporter Tim Potter faced a $500-a-day contempt of court fine for refusing to release notes from an interview with a murder suspect in 2000. The paper ultimately published the notes online before turning them over to the district attorney.
Media groups went back to the Kansas Legislature with a 2008 Senate bill sponsored by Schmidt, a former reporter for Kansas newspapers. Though advocates were confident it would pass the Senate Judiciary Committee, the bill was shot down in a 5-4 vote.
“We had a person change her mind between going in the door and getting to her seat, so it didn’t make it out of committee,” Anstaett said.
The third time was not a charm for the shield law legislation in February 2009, when the Senate Judiciary Committee sent it to the Kansas Judicial Council for review and recommendations after it was voted down.
“One of the objections we’ve had in the past is, ‘Why are we looking at this? It’s never been an issue,’” Cornish said. “I think there was a concern on some people’s part that this was going to put reporters in a ‘special class,’ and they [didn’t support the bill] on that principle.”
That changed when Dodge City Daily Globe reporter Claire O’Brien was subpoenaed in December following a jailhouse interview with a murder suspect, putting a spotlight on the issue of reporter’s privilege in Kansas. She was served with subpoenas to appear both at grand jury proceedings and at trial to testify about the jailhouse interview and regarding a confidential source. The judge denied her motion to quash the subpoena ordering her testimony at trial, essentially holding that the local prosecutors could force her to testify, and the Kansas Supreme Court declined to hear her appeal in early February. O’Brien did not testify at trial, but testified in a closed hearing after her source came forward, two weeks after the high court let the subpoena stand.
“Certainly the case in Dodge City was the impetus for the high level of interest this year,” Anstaett said. “Legislatures had anecdotal information they could point to and put a face on the problem.”
While Tim Potter’s subpoena led to the drafting of the 2002 bill, his case failed to rally the same legislative support that O’Brien’s did.
“The Eagle had been a successful source of investigative journalism for years, and I would think legislatures in the state felt they’d been so criticized by the newspaper over the years that they wouldn’t do anything to help the Eagle,” Kautsch said. “The latest case is different because the newspaper happens to be one that . . . doesn’t operate with all the negative legislative feelings that the Eagle has for years.”
Schmidt said that the passage of time and growing familiarity with the issue of reporter’s privilege played key roles in winning the support of his legislative compatriots, including opponents like Senate Judiciary Committee members Terry Bruce and John Vratil. This time around, Anstaett said that Schmidt insisted on collaborating on the language with Bruce, who went from voting against it last session to working with advocates on fine tuning the body of the statute.
“In February, we asked him to come over to us with substitute language he could support, and we were pleasantly surprised that it was pretty close to what we wanted,” Anstaett said. “Once Sen. Bruce worked on the bill and words were modified and they were acceptable, it was to the races, so to speak.”
The resulting compromises made Vratil more comfortable with the legislation and “was able to turn enough votes to get it moving,” Schmidt said. “Ultimately what helped us convince the House of Representatives was being able to argue truthfully that it helped codify the case law in Kansas,” he said. “It’s a good middle ground that makes very clear to parties in future litigation what the rules of the road are.”