Shield law

By Jean Maneke

There is recent action in Jefferson City as state legislators file bills to establish a shield law for news reporters -- a Free Flow of Information Act, if you will.

One supporter, state Sen. Jason Crowell of Cape Girardeau. has refiled his bill that was mired in the Senate Judiciary Committee last year. Also, state Sen. Chuck Graham of Columbia, another supporter, has refiled a similar shield-law bill. State Rep. Timothy Jones of Eureka has sponsored a bill identical to Senator Crowell's in the House of Representatives. Jones' bill has bipartisan support with 19 co-sponsors.

Representatives of the Missouri Press Association met a few weeks ago with state Sen. Matt Bartle of Lee's Summit and state Sen. Chris Koster of Harrisonville. Both had significant issues with shield-law proposals introduced last year. Bartle has indicated he would take a further look at any legislation filed this year. Koster continues to reiterate that he believes the proposal would create a new privilege that is detrimental to society in general and that the media is not deserving of any special privilege.

But this issue is not about a special privilege for the media. This a Free Flow of Information issue. A shield law would protect citizens who have information they believe the public needs to know.

In some cases, these citizens are government employees aware of illegal activities going on in their agencies. Such citizens put themselves in personal jeopardy when they tell a reporter that information. If the reporter is subpoenaed to testify about the source of the story about that information, current Missouri law -- with few exceptions -- requires the reporter to disclose that information without any court supervision of the process or whether the need for that information is genuine.

Persons who claim they are harmed by the disclosure of such information may, under current law, get the name of the provider of that information without ever having to show the court that they have a valid need to know the source of the information. Even if their sole reason for acquiring the name of the source is to get that person fired from his or her job or to cause personal harm, the reporter legally cannot withhold that information from the discovery process.

Sometimes the source of the information is a law-enforcement officer helping a reporter working on a criminal story. The attorneys for the defendant charged with a crime suddenly want to know where the reporter acquired information regarding the crime. Laws currently on the books allow defense attorneys free access to whatever a prosecutor has in his or her file regarding the investigation, so there should be no reason for those same attorneys to do their work by asking a reporter the name of his or her source rather than turning to the law-enforcement files to begin with.

The proposal under consideration in the Missouri Legislature defines a "covered person" as any person or entity that disseminates information by print, broadcast, cable, satellite, mechanical, photographic, electronic or other means, and who either publishes in print or electronic form a periodical, operates a broadcast station or carrier, or operates a news wire or syndicate. This definition is broad, just as the First Amendment is broad.

Some have criticized this bill, claiming it amounts to governmental licensing of reporters. But nothing in the bill requires reporters to obtain any "license" of the government before they can report the news. It does create a group, a rather broad group, of persons who could claim rights under the bill, but it in no way requires members of the media to obtain any license before they can practice their craft.

Another criticism is that it provides that a judge may end the privilege if he or she believes the disclosure of the information sought is "essential to the protection of the public interest involved in the proceedings." Some argue that language gives the judge no guidelines on when to revoke the privilege, and would allow the judge to revoke the privilege too easily. I've seen criticism from both media attorneys and from those who oppose this bill claiming this will lead to judges revoking the privilege too easily.

The bills do not provide an "absolute" protection for journalists. While it is true that it is a law with no teeth in one sense, it is at least a standard on which reporters can rely. Currently, with no law there is little case law precedent in Missouri that gives reporters a basic knowledge on when they will or won't be required to reveal a source. Neither of these criticisms are valid grounds on which to oppose these bills.

The bills that will be considered by our legislature this session will at least ensure that a judge has the ability to weigh the need for the information by one party against the basic First Amendment principles that encourage citizens to turn to the media when their government has failed them. It will ensure that a judge has the ability to weigh whether a party seeking access to information has properly sought it from sources where it is available as direct evidence, rather than take the easy route and seek it from a third-party reporter who may or may not know anything about the information other than it was given to that reporter by a source.

The media's vested interest, if it has one, is to continue its role as the watchdog for the public over governmental processes and entities.

The media and our government should be separate. Journalists should not be investigators for our government.

When a Free Flow of Information bill is proposed that ultimately supports the public in general, one must wonder about the motives of those who find reasons to argue that it is a bad idea. What interest are they supporting, if not the public interest?

Jean Maneke is a Kansas City attorney who represents the Missouri Press Association.