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Four states are considering shield laws to protect journalists from testifying and turning over unpublished material. From the Winter 2006…

Four states are considering shield laws to protect journalists from testifying and turning over unpublished material.

From the Winter 2006 issue of The News Media & The Law, page 14.

By Casey Murray

When Tony Messenger, a columnist for the Columbia (Mo.) Daily Tribune, first interviewed Shawan Daniels, he had no idea the jailhouse conversation would change his thoughts about media law.

All he wanted was information about the murder charge against Daniels, who threw a branch at a man who was attacking her, killing a 72-year-old woman after the man ducked.

Shortly after his column ran, a subpoena arrived from the public defender’s office seeking his notes and other unpublished information. Messenger refused &#151 and decided the state needed a shield law on the books.

“Tony didn’t think he needed a shield law until he was sitting before a judge,” said Missouri Sen. Chuck Graham, who is pushing the idea in the General Assembly.

His bill, the “Free Flow of Information Act of 2006” (S.B. 786), would provide qualified protection for the sources and unpublished material. The privilege could be overcome only if “all other available sources of information have been exhausted,” the information is “essential” to the proceedings, and in libel and slander cases, if the need for the information outweighs the public interest in protecting confidentiality.

During his saga, Messenger discovered that while Missouri judges have ruled in previous cases that journalists have a privilege from testifying or turning over their notes, there is no reporter’s shield in state statute.

“I believed . . . it was generally codified in the law and judges would acknowledge that this privilege exists,” Messenger said. “But I became generally more fearful the judge wouldn’t believe it exists. . . . The biggest thing that really caused me to change my mind was going through the process up close. Even a reporter’s privilege in the judiciary allows the system to use reporters as pawns. You still have a lack of certainty when you only have judicial precedence to rely on.”

Messenger never had to turn over his notes or testify &#151 Daniels pleaded guilty to second-degree assault &#151 but his dilemma rallied Missourians to advocate for a shield law.

Sources in Missouri and three other states considering shield laws point to last year’s 85-day jailing of former New York Times reporter Judith Miller as part of the impetus.

“The publicity we’ve had since Miller has educated the public and the legislators about why this is an important issue,” said Jean Maneke, an attorney for the Missouri Press Association.

Missouri remains among the minority of states yet to implement a shield law. Thirty-one states and the District of Columbia have shield laws. Nearly every other state has legal decisions recognizing a reporter’s privilege. Mississippi and Utah have no appellate court decisions, only state trial courts rulings, recognizing the privilege. Wyoming has neither statutory nor case law on the subject.

“For a number of years we had media attorneys arguing that there was a perfectly good defense under the First Amendment and that we didn’t need a shield law,” Maneke said. “However, in recent years there’s been an increase in subpoenas, and it’s becoming a much bigger problem. The Miller situation raised awareness among prosecutors and attorneys doing civil litigation &#151 they realized they had an easier source for gathering information that they hadn’t been using.”

Graham, the Missouri senator, worries about the “chilling effect” that the lack of a shield law has not only on reporters but also on sources. “As a j-school graduate, I understand the importance of this. But as a senator, I also understand the importance of anonymous sources. There’s times where I’m the source of something that I wouldn’t give out if I thought my name could be attached to it.”

His bill is in the Senate Judiciary and Civil and Criminal Jurisprudence Committee.

“I’m hoping that we have a better chance than we might have had in past years,” Maneke said. “It’s already been implemented in a [majority] of states, so it’s not something avant-garde for Missouri.”

Legislatures in Massachusetts, Utah and Washington also are considering reporter’s shield laws. Connecticut, which did not pass a shield bill in 2005, might see a return of the idea this year. Last summer, the Texas legislature considered a shield law but did not pass one. In addition, press associations in Vermont and New Hampshire are looking into adding shield laws for their states.

And to encourage more state efforts, the Media Law Resource Center, an organization created by media companies and lawyers to protect First Amendment rights of the media, will soon unveil a model shield law.

“This model shield law has proven to be important, even in its rougher stages, as a good starting place,” said Sandra Baron, MLRC’s executive director. “It presents a model that’s been used to discuss shield laws in a dozen states. Once it goes public, we hope that folks in states with existing shield laws will look at this and want to update accordingly. It can really help legislators and policy makers to analyze where their shield law fits in versus more up-to-date shield laws.”

Playing catch up

Some Massachusetts legislators might be disappointed that they are behind the times on the issue.

“The Massachusetts legislature prides itself on being on the forefront of the issues of the day,” said media attorney Jeffrey Newman of Price, Lobel, Glovsky & Tye, who helped write a shield law bill. “The fact that 31 states already have a shield law and Massachusetts doesn’t, that bothers them a bit.”

Led by the House speaker and the Senate president, the Massachusetts legislature is now attempting to catch up by considering a bill that would provide almost absolute protection for confidential sources &#151 there is a terrorism exception &#151 and qualified protection for unpublished material.

“In the past, efforts to pass a shield law went nowhere because of some powerful antagonism from the House and Senate leaders,” said Charles Kravetz, vice president of news and station manager at New England Cable News, who heads the shield law effort. “So far, they’ve responded positively, but we’re expecting a significant push back once this gets going.

“We’ve proposed a very strong shield law, but whether that will end up getting watered down, I don’t know,” Kravetz said. “If it’s watered down to the point where it’s a qualified privilege for sources, we would have to have a real discussion to whether that’s preferable to having nothing at all. We’re very sympathetic to those saying the press is playing with fire here asking a legislative body to make law regarding our actions.”

Massachusetts media lawyers say there has been a sharp rise in lawsuits against the media, and they think now is the time to try and get some protections for reporters.

“Recent cases have been so negative against the press that many will argue that any sort of shield &#151 even one which just forces the judges to use a balancing test and not just basing their decision on their own personal views of the issue &#151 some would say that’s preferable to what we have now,” Kravetz said.

That is a discussion that Kravetz hopes to avoid especially since legislative leaders support a shield.

“Having never been through this before, right now I don’t see why we shouldn’t have a good chance of success,” he said. “But this is still before anybody’s argued strongly against it. We haven’t really engaged the enemy yet, so it’s hard to tell.”

No law better than bad law

Two shield law bills recently were introduced in Washington state, including one from state Attorney General Rob McKenna that Bruce Johnson of Davis Wright Tremaine helped write. House Bill 2452, which passed the House Feb. 13 on an 87-11 vote, would give absolute protection for confidential sources, but a qualified privilege for unpublished material. Rep. Brendan Williams (D-Olympia) introduced House Bill 3187, based on Oregon’s shield law. It also would provide absolute protection for confidential sources but much stronger protection than McKenna’s for unpublished material.

The Washington media are debating the pros and cons of the two bills.

“After taking a close look at the [original] language of [McKenna’s] bill we found that it was very middle-of-the-road so we put forth the idea that it could be stronger,” said Marcus Donner, photo editor at the King County Journal and treasurer of the Society of Professional Journalists’ western Washington chapter. “We’d rather have no shield law at all than a shield law with middle-of-the-road language.”

Most major newspapers in Washington as well as the Washington Newspapers Publishers Association, Allied Daily Newspapers and 27 state senators and representatives support McKenna’s bill.

But Donner contends that Washington should implement Williams’ proposed shield law because it mirrors Oregon’s successful reporter’s privilege.

“It’s been on the books there for 30 years, and it’s never been amended,” Donner said. “It’s strong and it’s working. If it was fatally flawed it would have been discovered by now.”

However, Janelle Guthrie, McKenna’s spokeswoman, said the Oregon law is not perfect and Washington’s should be acceptable to journalists. “The goal was to craft legislation that provided protection close to that which was provided in state common law, though we went a little further than case law by adding an absolute privilege for the identity of sources.”

Donner worries that the bill makes it too easy for a court to overcome the privilege. Instead of requiring the person seeking the information to exhaust all other sources, McKenna’s bill requires only “reasonable effort,” according to Donner.

Not counting on the legislature

Supporters of a reporter’s privilege in Utah are looking toward its Supreme Court, which makes rules of evidence for state courts, to do what the Legislature has not. However, if the Supreme Court decides not to add a reporter’s privilege to the state’s rules of evidence, then media advocates will attempt to push a shield law through the legislature.

“I prefer adding it as a rule of evidence over something passed by the legislature,” Utah Attorney General Mark Shurtleff said. “I don’t like the shield law concept because it can make it seem the reporters are hiding something behind the shield. Let’s call it a privilege and treat it as any other rule-of-evidence privilege.”

Shurtleff became a supporter of the reporter’s privilege last year while organizing a friend-of-the-court effort among other state attorneys general asking the U.S. Supreme Court to hear the appeal of contempt orders against Judith Miller and Matt Cooper. When he realized that Utah did not have appellate court rulings to protect reporters, he decided to help correct that situation.

“Everybody needs to know right now what the rules are, so reporters don’t have to guess,” Shurtleff said. “Let’s get all the policymakers together, the media, the prosecutors, everybody should get involved and come up with a rule that satisfies everybody.”

The state high court’s Advisory Committee for Rules of Evidence is grappling with creating an acceptable rule for both sides. Shield law proponents proposed an absolute privilege while state prosecutors suggested putting the burden of proof on the reporters to show by clear and convincing evidence that the privilege is needed.

“The prosecutors sent more of a reporter’s target law than a shield law,” said media attorney Jeffrey Hunt of Parr Waddoups who is helping spearhead the shield law effort. “I’m really mystified at the vehemence of the opposition. Look at Washington, the attorney general there took the lead with the media to get a shield law passed and the King County prosecutor supported it as well.

“We look at that and look at the other states with shield laws &#151 criminals are not walking out of jail, there’s no evidence that law enforcement has been hampered by these laws. If anything, prosecutors should understand the need for confidential informants, they use them all the time,” Hunt said.

Despite the gulf between the two sides, Shurtleff is confident a compromise can be reached.

“I have a strong feeling that we’ll get something passed by the Supreme Court that will put a balancing test on the government,” he said. “I think the balancing test is the way to go.”