Shield law effort gains lawmakers' attention

Tuesday, January 3, 2006

Forcing reporters to reveal confidential sources in court would be more difficult under proposals that will be considered by the Missouri Legislature.

Lawyers are increasingly using subpoenas to demand unpublished material and the names of confidential sources, said Jean Maneke, attorney for the Missouri Press Association. Now the association has enlisted the help of two lawmakers, one from each party, to push a bill commonly known as a shield law.

Until the year 2000, Maneke said, the association typically was notified of one or two cases a year where a reporter was subpoenaed for a criminal or civil court case. During 2005, she said, there were six such instances.

The subpoenas during 2005 ranged from a subpoena seeking to force a reporter to reveal the source of a closed police file to a state administrative agency that wanted a reporter to testify about a story written entirely from information available on the Internet.

"Over the past year or two, it has been increasingly clear to the press association that attorneys are using their ability to issue subpoenas to cut back on the work they do in a case," she said. "Reporters can't get the information they need without having the ability to promise anonymity."

Sen. Jason Crowell, R-Cape Girardeau, and Sen. Chuck Graham, D-Columbia, are proposing two slightly different versions of the shield law. Crowell said his version won't be an absolute guarantee that a reporter can withhold information.

Instead, he said, his bill would require courts to balance First Amendment rights with the need to administer justice.

"We have crafted what I think is a reasonable approach to dealing with reporters being able to get information from sources without having to breach that special confidentiality relationship that is necessary to get the best information," Crowell said.

The push for a shield law has already enlisted some impressive support in the Missouri House. Speaker Rod Jetton, R-Marble Hill, wrote an endorsement of the idea for the Missouri Press Bulletin, said Doug Crews, director of the Missouri Press Association.

"Missouri journalists are currently left with the lingering fear that they might be forced by court orders to share the identity of confidential sources," Jetton wrote. "This fact compromises the ability of journalists to gather and disseminate important public information, exposing abuses of power and the exploitation of the public."

Missouri is one of 18 states that doesn't have a privilege for reporters written into state law. A law would provide a clear distinction for sources and readers that the newspaper has the ability to protect its sources, Crews said.

"Newspapers are supposed to serve the readers," he said. "We are not part of law enforcement."

And for every case that gains national attention, such as that of former New York Times reporter Judith Miller, there are numerous cases that get less notice. For example, in December 2004, a Providence, R.I., television reporter was ordered to serve six months house arrest for refusing to reveal who gave him an FBI videotape of a politician taking a bribe.

Missouri courts recognize a very limited privilege for reporters, but only in civil cases, Maneke said. There are no appeals court cases setting rules for demanding information from reporters in criminal cases and no cases establishing what the rules are when a source wasn't promised anonymity.

"There are a lot of gaps," she said. "This would set a standard for the courts to follow."

Reporters can't do their work if they are seen as extensions of law enforcement, Maneke said. "If it weren't for reporters' ability to get information and write stories, many things would never be reported."

The effort to pass a shield law will be the first such attempt in Missouri more than 20 years, Maneke said.

Among the states that provide a shield to reporters, some provide a blanket protection from being compelled to provide information. The others provide some exceptions that usually protect reporters until all other means of obtaining the same information has been exhausted.

Typically, according to an article by attorney Douglas Lee for the First Amendment Center, the laws require that information being sought must be highly relevant to the case with a compelling need for the courts to have the material. And, Lee said, the laws usually require that there be no other means of obtaining the information.

Crowell's bill is of the sort described by Lee, with exceptions allowing the courts to force reporters to reveal their sources and notes in certain situations.

"What we are starting off with is a measured bill that I think can pass the General Assembly," he said. "We felt this was a tempered approach."

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