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Reporterís Privilege Receives Increasing Attention from States

By Anthony R. McClure, Litigation News Associate Editor – December 15, 2010

Kansas and Wisconsin recently became the 38th and 39th states to pass a reporter’s “shield law.” Typically, a shield law will create a privilege for journalists seeking to avoid the disclosure of certain information obtained from their sources. Meanwhile, the debate continues over whether Congress should pass a federal shield law that would provide similar protections in federal courts.

State Shield Laws
The Wisconsin and Kansas [PDF] laws, like many other state shield laws, generally provide that a journalist cannot be compelled to disclose previously undisclosed information or the source of information obtained while acting as a journalist. To compel disclosure, the party requesting the disclosure must usually establish that the material is relevant, cannot be obtained by alternative means, and that disclosure would have a compelling or overriding public interest.

Federal Shield Law
Some commentators argue that Congress should also pass a federal shield law. A proposed federal shield law bill [PDF], known as the “Free Flow of Information Act of 2009,” passed the House of Representatives earlier this year but has had trouble gaining traction to get to the floor of the Senate.

George Freeman, New York City, cochair of the ABA Section of Litigation’s First Amendment and Media Litigation Committee, supports a federal shield law. “The problem is that when a reporter is dealing with a source today, he has no idea if he is going to get subpoenaed a year from now and whether that will be in connection with a state or a federal case,” Freeman says. “Frankly, he doesn’t know, assuming he would think about it, how to order his conversation and his priorities because he can’t tell whether he will have shield law protection or not because that really depends on the fortuity of what court the matter in which he might be subpoenaed will be.”

On the other hand, some would be happier with no federal law. For instance, the 2007 version of the bill saw opposition from the Bush Administration. The Bush Administration argued that the bill would hurt national security by making it too difficult to prosecute leaks of classified information. And with respect to the current version of the federal bill, Senator Jeff Sessions (R-AL), the ranking member of the Senate Committee on the Judiciary, has called the bill “fundamentally flawed.”

What About Bloggers?
A primary concern relating to both state laws and the federal bill is how to define “journalists” in the age of Internet publishing. For instance, the definition of journalism in the Kansas law includes “online journal[s] in the regular business of newsgathering and disseminating news or information to the public,” in addition to traditional publications and broadcasts. And the federal bill includes language defining a “covered person” as a person who “regularly” gathers material to disseminate news to the public through a number of means, including “electronic.”

Some have expressed concerns about broadening the definition, including Senator Sessions. “We’ve got bloggers of all types and shapes, so who actually would have the power to refuse to tell the government how they got information that may be of life and death import(ance) is an important thing,” he said in an interview with APR News earlier this year.

Freeman is less concerned than others, however. “There is a worry that anyone who writes one blog on the Internet will somehow get defined as a journalist,” he says. “Frankly, I think that concern is ill founded because [if you are] the stereotypical blogger in your pajamas in your kitchen, it is really unlikely you are going to have sources who anyone is going to subpoena you for. You are just going to be commenting on what’s going on in the world.”

“As more Americans get their news from the web—and increasingly, solely from the web—I think that it is inevitable that online reporters will have to be covered by the same privileges extended to print reporters,” says Ian H. Fisher, Chicago, cochair of the Section of Litigation’s Pretrial Practice and Discovery Committee. “The courts, though, will have to struggle with drawing the lines between an online news journalist, on one hand, and someone who is just a regular Facebook-type poster, on the other,” he says.

Freeman puts his faith in the courts. “The definition of a journalist has been in shield law since the 1970’s,” he says. “The state courts have not had much difficulty in deciding who is and who isn’t a journalist under those laws. To be sure, the advent of the Internet and bloggers add another level of complication to all of that. In the end, that’s what courts do. They decide whether you come within the intent of the legislature or not. I don’t find it to be an unsolvable problem.”

Impact on Civil Discovery?
On the other hand, Betsy P. Collins, Mobile, AL, cochair of the Section’s Pretrial Practice and Discovery Committee, is concerned about the practical impact that a broadened definition might have on discovery. “I think there is going to be a lot in discovery battles in connection with what is and is not posted on websites and whether or not there is a protection for who is posting it,” she says. “If they do not have a really good tight definition, it’s just going to be so open ended that I do think it will cause huge amounts of clutter in our court system.”

Keywords: litigation, reporter’s privilege, shield laws

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