Wisconsin governor signs shield bill

From the Spring 2010 issue of The News Media & The Law, page 8.

Wisconsin Gov. Jim Doyle on May 18 signed into law a reporter’s shield bill protecting confidential sources and newsgathering materials.

Wisconsin’s Whistleblower Protection Act, the 39th such law in the nation, provides journalists with an absolute privilege to withhold the identity of confidential sources and a qualified privilege to protect from disclosure unpublished newsgathering information.

Under the statute, a “news person” is someone who gathers and disseminates news to the public through any medium, including print publications, books, news agencies or wire services, broadcast, cable, satellite, or electronic services.

Though the recent Kansas shield law specifically included online journalists, Wisconsin’s definition is inclusive enough that reporters who publish only online would likely fall under the statute. However, the statute requires that a person must gather news for a “business or organization that . . . disseminates on a regular and consistent basis news or information to the public.” So freelancers and others not under contract to a news organization may have a more difficult time showing that they should get the protections of the new law.

The disclosure of unpublished newsgathering materials may only be compelled in a criminal case if the court finds, after it notifies the reporter and gives them the opportunity to be heard, that the requester proved by clear and convincing evidence that a crime has occurred. In civil cases, the subpoena will only be allowed if a complaint “states a claim upon which relief may be granted” — which is the standard for granting a motion to dismiss, meaning the subpoena will only stand if the complaint would survive such a motion.

In all cases, the requester must prove the information sought is highly relevant, is necessary, and is not obtainable from any alternative source, and that disclosure is in the overriding public interest. The public interest standard is fairly new in shield laws, although some courts have long applied such a test when determining whether to quash subpoenas under common law or the First Amendment.

The new law also restricts the issuance of a subpoena to a nonreporter if the intent is to obtain information relating to a transaction with a news person that would be barred from disclosure under the statute. This unusual provision offers an additional layer of protection to the newsgathering process.