The controversy surrounding the jailing of former New York Times reporter Judith Miller could prompt Congress to enact a federal shield law. It has also bolstered efforts to create reporter’s privilege through shield laws or policies in Massachusetts, Washington, Utah, Texas, Connecticut and Vermont. The time is right to strengthen or enact laws in states without effective reporter’s privilege statutes.
Some 31 states have enacted a reporter’s privilege, beginning with Maryland in 1896. Forty-five states have protection for reporters’ confidential sources either through statute or through appellate court decisions. Even with protections, 37 journalists have gone to jail to protect a source, according to the Reporters Committee for Freedom of the Press.
In late October, Massachusetts Senate President Robert E. Travaglini filed a bill that would create a shield law in that state. The bill came after a coalition of local news media representatives made a “compelling case” for the need for such a law, according to The Boston Globe.
“For the most part, I believe that journalists use these resources in a responsible way,” Travaglini told the Globe. “Unless there are some extraordinary circumstances, they shouldn’t be forced to reveal their sources.”
While the Washington state Supreme Court has recognized a reporter’s privilege since 1982, state legislators will be asked to codify — and perhaps strengthen — the privilege in that state. State Attorney General Rob McKenna, who has championed open government causes, is pushing the bill, wrote Ken Bunting, associate publisher of the Seattle Post-Intelligencer.
Bunting’s reasons for supporting a state shield law reflect the uncertain legal climate in states where journalists rely on court decisions for a reporter’s privilege.
“The importance of McKenna’s effort should not be underestimated. The U.S. Supreme Court’s decision to simply let stand the appellate ruling in the (Valerie) Plame case has left the law confused and inconsistent in different areas,” Bunting wrote in a column. “While Washington state judges have consistently recognized a privilege, and some federal judges in this region have, too, the problem with common-law privileges is they are subject to the whims and interpretations of individual judges.”
In Utah, media organizations are hoping to convince the Utah Supreme Court to adopt a court rule that recognizes a reporter’s privilege to protect confidential sources. Utah’s Constitution gives unique authority to the courts to create rules of evidence, according to Jeffrey J. Hunt, a Salt Lake media attorney. Short of the court rule, journalists have been contemplating pursuing a shield law in the Legislature. Utah’s Attorney General Mark Shurtleff has actively campaigned for a reporter’s privilege. He was a lead supporter of a brief that had asked the U.S. Supreme Court to consider an appeal in the Valerie Plame case.
Earlier in the year, other states considered shield laws. Often such efforts take a number of years to gain support from lawmakers, news media and the public.
Texas legislators friendly to the media withdrew a shield law bill in May 2005 after others weakened it with amendments. The original Texas bill was based on the 1999 North Carolina shield law, the last passed by a state legislature. The measure gives a qualified privilege to protect confidential and nonconfidential sources. In other words, the protection is limited to select circumstances. Sixteen states take this approach in shield laws. Fifteen other states and the District of Columbia offer an absolute privilege or combination of the two.
Attempts to pass reporter’s privilege bills in the 2005 Connecticut and Vermont legislative sessions failed. Unfortunately, in Connecticut, testimony from Chris Powell, managing editor of the Manchester Journal Inquirer, helped kill the bill. Powell told a legislative panel and then wrote a column that Connecticut needs stronger Freedom of Information laws, not a shield law.
“A shield law would only distract from the public interest in greater disclosure of government’s work, would only perpetuate a cynical little game whereby government does its best to maintain illegitimate secrets and then makes a great show of its beneficence by declining to imprison the people who still manage to find out something interesting,” Powell wrote in a March column. “Journalists don’t need ‘get out of jail free’ cards. They and the public need better access to information. The General Assembly should reject the ‘shield law’ bill and give Connecticut the real thing: information.”
A key to passing such bills is organizing the media before a bill lands at the statehouse and presenting a united front. The Connecticut experience isn’t the first time a reporter has given lawmakers a reason to shoot down a shield law. Often, it is the notion that journalists are above the law that irks some journalists.
New York Times reporter Myron Farber, who spent 40 days in jail in 1978 for not revealing a source, told Newhouse News Service he wasn’t acting above the law for going to jail.
“If the choice is a question of going to jail or diminishing your integrity by turning over your materials, and you choose the former, that is your right within the law, because you are choosing to pay the penalty,” he said.
History may be on the side of journalists hoping to get new protections in states without a shield law. Celebrated cases of journalists being jailed for not revealing confidential sources has prompted state lawmakers to adopt reporter’s privilege laws. For example, the 1896 Maryland law banning subpoenas requiring reporters to reveal confidential sources came after Baltimore Sun reporter John Morris refused to identify to a grand jury his sources for a story on bribery of public officials. Morris spent two days in jail.
The New Jersey Legislature enacted a shield law after Farber served his sentence. In 1984, the Illinois legislature added greater protection for confidential sources to that state’s shield law after Richard Hargraves, an editorial writer at the Belleville News Democrat, spent three days in jail for not naming a source he used in an editorial.
Even in states where there is a shield law, media groups have been lobbying for support of a federal shield law. The California Assembly adopted a resolution supporting a federal shield law at the urging of the California Newspaper Publishers Association. The resolution was authored by Assemblywoman Noreen Evans, D-Santa Rosa, who represents the district where W. Mark Felt lives. Felt, the Watergate source known as Deep Throat, gave confidential information to Washington Post reporters about illegal activities by the Nixon White House.
The time is right for SPJ to join with other groups to strengthen reporter’s privilege both at the state and federal level. Here is a list of things chapters and members can do:
* In states without a shield law, talk to media groups, local bench-bar groups, the state attorney general and legislators about enacting state protections.
* If there is protection from case law, ask lawyers if codifying the language might be appropriate.
* In states with a shield law, ask the state legislature to adopt a resolution endorsing a federal shield law.
* Donate funds to help pass federal shield law.
* Talk to members of Congress about the need for a federal shield law.
* Hold a panel discussion about the status and use of reporter’s privilege in your state.
* Using the SPJ Code of Ethics, have newsroom discussions about using anonymous sources and don’t grant anonymity too readily.
Joel Campbell is an assistant professor in the Department of Communications at Brigham Young University in Provo, Utah. He serves as co-chairman of SPJ’s Freedom of Information Committee and member of the SPJ-Bloomberg Newsroom Training team.
