Reporter shield Law

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Shield Law 101:
Frequently Asked Questions

What is a shield law?

A shield law provides statutory protection for the “reporters’ privilege” — legal rules which protect journalists against the government requiring them to reveal confidential sources or other information. Sometimes an overzealous prosecutor or law enforcement agency will subpoena a reporter’s notes or the identity of a source to aid an investigation or prosecution. A shield law would allow leakers and sources to feel safe approaching journalists to expose wrongdoing in society, similar to providing priests and psychiatrists the ability to provide some confidentiality to conversations, without concerns that a judge would require their identities or the information to be turned over to the federal government unless under very limited circumstances. The District of Columbia and 49 states have some level of protections from local and state agencies. No statutory protection exists at the federal level.

What is a “qualified” privilege?

The key U.S. Supreme Court case Branzburg v. Hayes in 1972 found that a journalist does not have an absolute constitutional right to refuse to reveal sources in court. However, the court did acknowledge that government must “convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest.” In other words, it’s a balance, and the government needs to have a good reason to force journalists to cough up their notes or sources. Because case law has not been particularly strong, many states have passed shield laws to provide further protections for journalists.

Why do we even need a shield law? What’s the problem?

Government officials have attempted to jail and even bankrupt journalists to force them to reveal their sources or information they have gathered. A study conducted by Brigham Young University law professor RonNell Andersen Jones, for example, found that in 2006 alone journalists were served with more than 7, 200 subpoenas from state and local governments, and about 800 from the federal government. Some news organizations are served more than 25 times a year, and most newsroom leaders perceived a continual increase in government action to compel journalists to talk. In 2006, for example, blogger Josh Wolf of California was jailed for 226 days because he wouldn’t hand over video he shot while covering a protest.

What are the downsides of a federal shield law?

Several issues have been raised with the proposed federal shield law, and in shield laws in general:

— What’s to stop hiding journalist from withholding information that could harm national security? This was particularly sensitive following Wikileaks document releases. Previously negotiated federal shield law bills provided exceptions by which the government could obtain information when a threat to national security is involved.

— Why should journalists get special treatment? True, journalists have few special privileges over the average citizen (e.g., fee waivers and expedited review for Freedom of Information Act Requests), and philosophically it’s a slippery slope to ask for special treatment for journalists. But the protection isn’t for the journalist; it’s really protection for the source. Some protection is warranted from a practical perspective if sources are to feel safe coming forward.