Shield law

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Shield laws are laws to protect a reporter's right to keep their source confidential.


Contents

[edit] Definition

Shield laws are laws which protect journalists from being forced to disclose confidential information in legal proceedings. These laws protect the rights of a journalist from revealing confidential sources, notes, or other unpublished information and may be applied in both criminal and civil hearings.[1] There are currently no federal statutes pertaining to shield laws, and as such these laws are left up to the states to determine.


[edit] Origins

The issue of to whether or not journalists can be subpoenaed and forced to reveal confidential information arose in 1972 with the United States Supreme Court case Branzburg v. Hayes. Paul Branzburg was a reporter for The Courier-Journal in Louisville, Kentucky and wrote an article about the drug hashish. In creating the article, he came in contact with two local citizens who had created and used the drug. Because their activity was illegal, Branzburg promised the two individuals that he would not reveal their identities. After the article was published, Branzburg was subpoenaed by a local grand jury and ordered to reveal the identity of his sources. Branzburg refused and cited the provisions for freedom of the press from the First Amendment of the Constitution, in his defense.

The case eventually reached the US Supreme Court, where the court decided in a five to four decision that the press did not have a Constitutional right of protection from revealing confidential information in court. The court acknowledged, however, that the government must "convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest."[2] While this ruling did not set a precedent for journalistic rights in court, it did define a more stringent set of requirements for when a journalist could be subpoenaed in court. This ruling was limited in nature, did not set a clear federal precedent regarding journalistic privileges from revealing confidential information, and thus has been interpreted and cited differently by courts over the years.

[edit] State by State

Currently, there are thirty-one states with shield law protections. There are four states with some protections for journalists and seventeen with no form of shield laws.[3] Many of these laws vary from state to state. Some protections apply to civil but not to criminal proceedings. Other laws protect journalists from revealing confidential sources, but not other information. While some state legislatures have adopted protections into state law, others rely on state court precedents. The precedents relating to shield laws are often fluid and vary from court decision to court decision.

[edit] Current Issues

Many people believe that there should be some form of national shield law, or at least a clear federal standard for which the rights of journalists are clearly defined. The differences between states' laws has also raised questions regarding which laws apply where in regards to national reporting. Proponents of shield laws argue that they ensure that news gatherers may do their jobs to their fullest ability and that they help avoid a dichotomy between state laws and journalistic ethics. They also argue that a federal shield law should exist to eliminate contradictions between state laws.

Opponents argue that shield laws afford extra privileges to journalists and that no citizen should be able to ignore a court ordered subpoena. Opponents also cite problems with defining who is considered a journalist or news gatherer and who is not, and note that if journalists get special protection from the government, then they are getting special journalistic benefits from the government instead of acting in complete independence. Further, journalists are normally forced to testify by federal courts only in cases where a federal shield law likely would not protect them anyway, such as in national security cases. Finally, the federal government likely has no constitutional right to enforce a shield law on state courts.

In recent years, there have been bills for federal shield laws in the United States Congress; however, none of these bills have gotten beyond the stage of committee approval.

Sometimes, the press is not even immune from its sources;that occurs when it is the source who wishes to remain anonymous and the journalist who wishes to disclose it. Such was the case in Cohen v. Cowles Media Co. (1991). The Supreme Court upheld that a source may have a right to confidentiality if an agreement was made with the reporter. Unfortunately, the bigger issue of source disclosure gets even more confusing, since the Cohen and Branzburg decisions could allow for the possibility of a journalist being subpoenaed by a court to disclose the name of a source, and being sued by a source under promissory estoppel laws for that disclosure. The current laws of the land, and the gray areas of forecasting potential consequences of publishing a story with confidential sources places the press in a very precarious situation. The current shield laws in some states give the press somewhat of an upper hand, however, since federal law does not recognize reportorial privilege in most cases, it is understandable how the press might feel muzzled.

[edit] United States

In the United States, 31 states have shield laws. In recent years, a larger effort by journalists to press for federal shield laws formed following the Plame affair/CIA leak scandal, in which reporters who released the name of Valerie Plame were asked who their sources were. One of the reporters, Judith Miller of The New York Times, was placed in jail for not disclosing her source in the government probe.

[edit] States with shield laws

  • Alabama
  • Alaska
  • Arizona
  • Arkansas
  • California
  • Colorado
  • Delaware
  • Washington, D.C.
  • Florida
  • Georgia
  • Illinois
  • Indiana
  • Kentucky
  • Louisiana
  • Maryland
  • Michigan
  • Minnesota
  • Ohio
  • Pennsylvania

[edit] States with "Minnesota Free Flow of Information Act

[4]

  • Montana
  • Nebraska
  • New Jersey
  • New York
  • North Carolina
  • North Dakota
  • Oklahoma
  • Oregon
  • Pennsylvania
  • Rhode Island
  • South Carolina
  • Tennessee
  • Connecticut

[edit] States with some shield law protections

  • Iowa
  • Nevada
  • New Mexico
  • Texas

[edit] States without shield laws

  • Connecticut
  • Hawaii
  • Idaho
  • Kansas
  • Maine
  • Massachusetts
  • Mississippi
  • Missouri
  • New Hampshire
  • South Dakota
  • Utah
  • Vermont
  • Virginia
  • Washington
  • West Virginia
  • Wisconsin
  • Wyoming

[edit] References

    [edit] See also

    [edit] External links

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