NEWS MEDIA UPDATE · MASSACHUSETTS · Confidentiality/Privilege · Oct. 27, 2005
Senator introduces shield law with backing of news media
Oct. 27, 2005 · Massachusetts Senate President Robert E. Travaglini introduced a reporter’s privilege bill on Tuesday that would provide an absolute protection of the identity of sources — even without a promise of confidentiality by the reporter — and a qualified privilege for notes and unpublished material.
”For the most part, I believe that journalists use these resources in a responsible way,” The Boston Globe quoted Travaglini as saying. ”Unless there are some extraordinary circumstances, they shouldn’t be forced to reveal their sources.”
As proposed, the bill allows for compelled disclosure of sources only when necessary to “prevent imminent and actual harm to public security from acts of terrorism” and when the harm to be prevented “clearly outweighs the public interest in protecting the free flow of information.”
For information which is not “itself communicated in the news media,” such as notes and outtakes which do not reveal a source, the law only provides for disclosure if the party seeking the information can show through clear and convincing evidence that it is “critical and necessary to the resolution of a significant legal issue,” that it could not be obtained through alternate sources, and that there is an “overriding public interest in the disclosure.”
The bill would cover journalists working in any medium, including Internet-only publications.
Travaglini told the Globe that a coalition of local news media representatives made a ”compelling case” for the need for such a law.
“It’s a pretty strong shield law,” said Charlie Kravetz, vice president of news and station manager at New England Cable News, who led the coalition. “But it’s just been filed, we’re still a long way from getting it passed.”
The state high court declined to enact rules establishing a reporter’s privilege in 1985, after then-Gov. Michael Dukakis’s Press Shield Law Task Force petitioned the court to do so. After many long hearings involving testimony by supporters and opponents, the Supreme Judicial Court rejected the petition, saying it was more appropriate that such a privilege be developed through litigation in the courts on a case-by-case basis. The court also noted that the legislature had not passed “literally dozens” of such bills in previous years, and that the news media could not agree on the scope and extent of the privilege.
“A lot has changed in twenty years,” Kravetz said. “As the media has fallen in respect, there have been more and more and more rulings against the media in these types of cases. . . . We have a much more unified approach than twenty years ago.”
While the shield law supporters have gathered strength, the groups against it have remained the same.
“We expect robust opposition from all the predictable sources — the prosecutors bar, some members of the defense bar, some judges themselves,” Kravetz said. “We’re expecting hearings. This bill is far from guaranteed, but we have a certain degree of optimism.”