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The Massachusetts reporter’s privilege

Massachusetts is one of the 10 states without a shield law on the books, joining a small minority that interpret the so-called “reporter’s privilege” under case law. While the U.S. Supreme Court has denied the existence of a constitutionally protected reporter’s privilege, states legislatures are free to enact laws that give more rights to journalists than the baseline fundamental rights granted in the United States Constitution. Currently 40 states and the District of Columbia have statutory shield laws in effect.

The Massachusetts reporter’s privilege is confusing and open to interpretation, but ultimately Massachusetts courts have acknowledged a limited reporter’s privilege. Massachusetts common law protects reporter’s privilege when the reporter’s interest in protecting his source’s identity outweighs the government’s or private lawsuit party’s interest in procuring evidence. Courts are more inclined to protect information gathered from confidential sources than sources who have spoken on the record, however.

A First Circuit appellate court decision from 1998 acknowledged the existence of a limited reporter’s privilege to protect his sources. In Cusumano v. Microsoft, the First Circuit court determined that Microsoft Corporation could not compel two academic researchers to produce research materials for a book concerning an antitrust lawsuit Microsoft was involved in. The court established a balancing test for a limited First Amendment privilege of protecting confidential information.

Quoting United States v. LaRouche Campaign, the court said when district courts must decide whether to enforce requests for discovery production of materials used “in the preparation of journalistic reports,” the courts should “be aware of the possibility that the unlimited or unthinking allowance of such requests will impinge upon First Amendment rights.” To determine how discovery requests should be limited, if at all, those courts “must balance the potential harm to the free flow of information that might result against the asserted need for the requested information.”

Importantly, the court also declined to limit the applicability of the protection to the traditional definition of journalists. The court noted that academic researchers and journalists share many trade similarities and therefore must both enjoy a First Amendment privilege to protection of confidential sources and information:

Courts afford journalists a measure of protection from discovery initiatives in order not to undermine their ability to gather and disseminate information. Journalists are the personification of a free press, and to withhold such protection would invite a “chilling effect on speech,” and thus destabilize the First Amendment. The same concerns suggest that courts ought to offer similar protection to academicians engaged in scholarly research. After all, scholars too are information gatherers and disseminators … Just as a journalist, stripped of sources, would write fewer, less incisive articles, an academician, stripped of sources, would be able to provide fewer, less cogent analyses. Such similarities of concern and function militate in favor of a similar level of protection for journalists and academic researchers.

There have been a few recent attempts to pass a shield law in Massachusetts. An attempt in 2007 failed in early 2008, as well as a more recent attempt by the Massachusetts Broadcasters Association in 2010. Last year, another possible shield law called the “Free Flow of Information Act” that offered protection to journalistic bloggers made the rounds in the news media before it too failed. Massachusetts still doesn’t have a shield law on the books.

While Congress has repeatedly failed to pass a federal shield law statute and the courts have ruled that the Constitution doesn’t protect a reporter’s privilege, 40 states have passed shield laws. Some may prefer legislation about reporter’s privilege at the state level. State level shield laws can account for cultural and geographic differences and conform more to the culture of the state.

The vast variety in state shield laws, however, can make things very difficult for reporters who plan to travel anywhere outside their home state to cover a story. Theoretically, a reporter would be responsible for knowing the specific laws in each state he or she covers news in. This could place an undue burden on the reporter and can hinder or discourage him from branching out and covering stories outside of his home state. Adding more to the confusion is the question of who legally qualifies as a journalist and can enjoy protection under state shield laws.

University of Oregon Professor Kyu Ho Youm wrote a brief editorial for the New York Times website following an Oregon judge’s December 2011 determination that a blogger did not qualify for shield law protection. Youm noted that a First Circuit court in a recent decision declined to dispense First Amendment protections on “professional credentials or status” alone.

“The federal court ruling reinforces the judicial reluctance to read bloggers and other journalistic outsiders (“outliers”?) into state shield law,” Youm wrote. “Judges are more likely to continue with their traditional journalist-oriented approach to source protection unless their state laws are ambiguous enough to allow them creative interpretations.”