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State Supreme Court says shield law is not absolute

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  1. Protecting Sources and Materials

    News Media Update         PENNSYLVANIA         Confidentiality/Privilege    

State Supreme Court says shield law is not absolute

  • Pennsylvania’s high court ordered two reporters to turn over their notes from interviews with a non-confidential source, who has long since been found guilty of third-degree murder.

Dec. 23, 2003 — The Pennsylvania Supreme Court ruled last week that reporters’ notes are not protected by the state Shield Law if a source’s identity has already been revealed.

In a 5-2 decision, the court held that two reporters from rival Philadelphia newspapers must turn over their notes from interviews with a man who shot and killed a neighborhood drug dealer in 1997.

Mark Bowden, then with The Philadelphia Inquirer, and Linn Washington Jr., then with The Philadelphia Tribune, separately interviewed Brian Tyson in 1998 and wrote stories about the incident. Prosecutors sought the reporters’ unpublished notes — including any “off the record” comments — to see what Tyson had told them about the shooting.

Both reporters refused, arguing that the state Shield Law is an absolute privilege. The law says no reporter shall “be required to reveal the source of any information procured or obtained by such a person” for any legal or governmental investigation.

Bowden and Washington were found in contempt of court by Judge Jane Cutler Greenspan, of the Philadelphia Common Pleas Court (1st Dist.), and each fined $40,000. Bowden did testify during the trial, but only concerning information that had been published.

In December 2000, Tyson was found guilty of third-degree murder and sentenced to 10 to 30 years in prison.

Three years later, the Supreme Court held that “disclosure here would not inhibit the free flow of information to the media” and therefore “the Shield Law does not prevent the compelled disclosure of Tyson’s comments.”

“Tyson made no effort to conceal his identity and freely communicated with Bowden and Washington about the shootings and his relationship with the local drug dealers,” the majority wrote.

Robert C. Heim, attorney for Bowden, author of the book “Black Hawk Down,” said the court took a “very broad interpretation” of the state shield law, and, as a result, has created a dangerous precedent.

“Reporters shouldn’t have to be part of the government’s investigative arm,” Heim said, noting that the information has long been useless to all parties involved. “The shield law in Pennsylvania has always, for good reason, protected reporters’ notes so that we didn’t try to use reporters as investigative tools.”

The court did hold that Greenspan’s contempt fines were excessive, and ordered her to come up with lesser penalties.

(Commonwealth of Pennsylvania v. Mark Bowden and Linn Washington Jr.; Media Council: Robert C. Heim, Dechert LLP, Philadelphia) JL

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