FOCUS ON FOIA
Dick Hammerstrom, a local news editor at The Free Lance-Star, is an advocate for open government and serves on several statewide organizations that urge transparency. You can email him at firstname.lastname@example.org.
Do journalists need a shield law?
When I was a young reporter at another newspaper, I wrote a story about the abrupt firing of a well-known and long-serving municipal department head by city officials.
No reason was given publicly for his dismissal, but I was able to report, based on unnamed sources, that city officials had been conducting a quiet investigation into financial irregularities in his department.
The man sued top-ranked city officials in federal court, claiming his rights had been violated, that he was dismissed without cause and that the city officials had purposefully leaked derogatory information to me that damaged his reputation and chances of future employment.
His lawyers asked the judge to require me to disclose where I obtained the information about the city’s investigation of their client. When a judge’s order is ignored, the offending party can be hit with a contempt of court citation and that can result in incarceration.
Of course, I resisted cooperating and the paper backed me up. But the judge hadn’t made a decision on the plaintiff’s motion, and this was coming at a time when reporters were first being sent to jail for refusing to testify before grand juries or disclose sources of stories. It was a new area of the law, and it was not going well for journalists.
There was no such thing as a shield law at the time, and lawyers had to make First Amendment arguments to the courts if they wanted to keep reporters in newsrooms and out of jail cells.
Admittedly, the idea of going to jail for refusing to disclose a source was not an appealing prospect. Fortunately, for me anyway, the civil lawsuit was settled and my nervousness was short-lived.
But the issue of demanding testimony from reporters has not gone away, even though most states now have some semblance of a shield law that protects reporters from overly zealous prosecutors and defense attorneys.
Simply, a shield law grants journalists a privilege, or protection, against being compelled to testify or produce evidence under certain circumstances. Usually shield laws require that the information sought from a journalist is crucial to the case and that the information could not be obtained otherwise. Some shield laws are better than others.
NO SHIELD LAW FOR VIRGINIA JOURNALISTS
Virginia is one of about 10 states that does not have a shield law. One was proposed in the Virginia legislature several years ago, but press law lawyers in the state determined that there were too many exceptions written into it and that journalists would have a better chance arguing for First Amendment protection and using existing case law to thwart subpoenas.
What does a shield law have to do with open government?
Reporters use tips, leaked documents and confidential sources to report important stories that otherwise might not be reported. If news sources fear they’ll be disclosed, the news tips and leaked documents will vanish.
Rarely do tips to reporters reach Watergate dimensions, but The Free Lance–Star gets them daily. Some are anonymous, such as the ones telling us that there were several police cars outside a certain residence. Others come from politicians’ allies or opponents. They come via email, phone calls, Facebook and Twitter.
Just as we get tips, we also occasionally get subpoenas. Many are frivolous. Some are simply for information about where the newspaper is circulated. Sometimes, they seek the testimony of a reporter over how certain information was obtained. Almost all the time, we are able to keep reporters off the witness stand.
Shield laws were back in the news in recently when the U.S. Supreme Court turned down an appeal by New York Times reporter James Risen, who wrote a book in 2006 about efforts by the CIA to disrupt Iran’s nuclear program.
Risen used unnamed sources in the book and the government has charged a former CIA employee with leaking classified information to the reporter. Federal prosecutors have issued subpoenas for Risen’s testimony about his sources, and he has fought the subpoena.
A District Court judge had ruled in Risen’s favor, but the 4th U.S. Circuit Court of Appeals reversed that, saying the First Amendment did not protect Risen’s testimony. The Supreme Court refused to hear the case. So, the issue will go back to District Court, and a judge there will decide Risen’s fate.
FEDERAL SHIELD LAW BOGGED DOWN IN SENATE
A federal shield law has been under consideration in the U.S. Senate for some time, but hasn’t been brought to a vote. Virginia Sen. Mark Warner’s office says he is in favor of it. Sen. Tim Kaine’s office says he’s reviewing it and has not taken a position.
One reason for the delay is because the Senate is having a difficult time defining what a journalist is these days. Should bloggers, online news sites and even so-called citizen journalists have the same protections as more traditional reporters? The Senate isn’t sure.
Another case attracting attention involved Fox News reporter Jann Winter, who obtained information from a notebook written by James Holmes, the man charged with the mass shootings at a movie theater in Aurora, Colo. When she reported on its contents, the judge ordered a subpoena issued for her to disclose the identity of the police officer who leaked it.
But the subpoena issued in Colorado for the New York-based Winter was not honored by New York State, which has a shield law. The New York court ruled that its law applies to New York reporters no matter where they go to gather news. Holmes’ lawyers appealed that ruling to the U.S. Supreme Court, which declined to hear the appeal.
In both those cases, the reporters did nothing wrong. They obtained documents or information that enabled them to produce stories about high-profile issues.
Since there isn’t a shield law in Virginia, press-law lawyers must rely on appellate court cases when a reporter’s testimony is sought.
LOCAL CASE PROVIDES A PRECEDENT
One such case originated with a Free Lance–Star story about a Stafford County murder case in 1973. The case is called Brown vs. Commonwealth. The slaying occurred at the M&M junkyard on U.S. 1 in Stafford, according to the Virginia Supreme Court’s ruling in the case.
The day after a slaying at the business, a Free Lance–Star reporter quoted “a spokesman in the Stafford County Sheriff’s Department” about certain details of the shooting. The lawyer for the man charged in the case demanded to know the reporter’s confidential source. The reporter, when called to testify, asserted a First Amendment privilege in refusing to name the source.
The trial judge said that the identity of the source was not material to the guilt or innocence of the defendant and did not order the reporter to make any disclosure. The defendant appealed to the state’s highest court, which upheld the Stafford judge’s ruling. The Virginia Supreme Court, in its opinion, said “As a news-gathering mechanism, a newsman’s privilege of confidentiality of information and identity of his source is an important catalyst to the free flow of information guaranteed by the freedom of press clause of the First Amendment.”
That reporter was not a “newsman,” as the court wrote, but a newswoman. Other than that, the court got it right.
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