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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.”

Lack of a federal shield law and its effects on press freedom

Government, the courts in particular, is very defensive of free speech and press, uncommonly so compared to other democratic countries. The framers of the Constitution considered prior government intrusion, particularly prior restraints and licensing schemes, as the worst infringement of First Amendment rights (as discussed in Nebraska Press Association v. Stuart). However, the focus on prior restraint leaves the door wide open for punishment of speech and press after the speech is spoken or words are printed. Criminal punishments after the fact could almost be construed as counter to the freedom of the press as prior restraint.

In particular, journalists who use confidential sources to expose government corruption or wrongdoing could face sanctions if they refuse to disclose their sources in front of a grand jury. Though 49 states currently have shield laws or case law protecting the journalist’s privilege to protect his source, there is no shield law on the federal level.

The U.S. Supreme Court rejected the idea that journalists have more freedom than private citizens in the 1972 case of Branzburg v. Hayes. A Kentucky reporter conducted interviews with marijuana growers, witnessing their illicit activities firsthand. He wrote a story about it and kept his sources’ names confidential, refusing to give up their identities to a grand jury. A Kentucky appeals court found that the then Kentucky shield law would allow a reporter to protect an informant who told the reporter about alleged illegal activity, but would not protect the reporter if he witnessed the illegal activity himself.

The Supreme Court consolidated Branzburg’s appeal with two other cases, both having to do with reporters seeking a First Amendment reporter’s privilege to not disclose the identities of their sources. In a 5-4 ruling, the court said that a reporter’s privilege does not exist as a constitutionally guaranteed right. Quoting Zemel v Rusk, the court said that “[t]he right to speak and publish does not carry with it the unrestrained right to gather information,” and that the government’s interest in convicting criminals outweighs a reporter’s interest in protecting his sources. The court adamantly insisted that journalists do not enjoy greater rights than any average private citizen.

“We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy,” Justice White wrote for the court. “This we decline to do.”

Even though the case is from the 70s, the justices foresaw another major issue with shield laws: who exactly meets the definition of the press. Said the court, “Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.”

University of Georgia Professor William E. Lee observed in a recent Cardozo Arts & Entertainment Law Review article that the court has been consistent in its equal application of speech protections. The 2010 Citizens United decision, he wrote, made media and non-media corporations’ speech equal before the law. Like the court in Branzburg, he noted a federal shield law would encounter this same difficulty of defining who a journalist is:

In the first Citizens United oral argument, Justice Scalia facetiously asked if the term press meant people wearing fedoras with a ticket saying ‘Press’ in the hatband … the fedora definition of a journalist, however, is no more outdated and limiting than the definitions contained in many state shield laws. Defining who is entitled to coverage under a shield law is a most vexing problem.

To resolve this issue, Lee looked to a proposed shield law from a few years ago that did not ultimately pass, the Free Flow of Information Act, as a good guide to defining a journalist. Under that failed bill, a journalist would enjoy a reporter’s privilege if he regularly gathers information, conducts interviews, and disseminates reporting by print, broadcast or other forms of media, all with the intent “to disseminate the public news.”

The bill ultimately failed because President Obama announced that his administration would take a harder line against government leakers of information and because of Wikileaks’ release of thousands of classified documents in 2010 that many found concerning.

Lee seemed pessimistic about the chances of a federal shield law in the near future. Instead, he pointed out that the Department of Justice’s policy to subpoena reporters as a last resort serves as an informal but most secure way currently possible of protecting a reporter’s privilege.

Society of Professional Journalists President Christine Tatum advocated some years ago the passing of the Free Flow of Information Act on the Society’s website. She wrote:

Many of the biggest investigative stories of our age have been based in part on information shared with a reporter by someone who wanted to keep his or her identity a secret. Anonymous sources handed over the Pentagon Papers and unmasked the culprits behind Watergate and Enron. They have outed some of the nation’s worst corporate polluters. They have helped inform Americans’ debates about the Iraq War, the proliferation of nuclear weapons and global warming.

Yes, sources almost always have an agenda when they speak up, but sometimes they have information of vital interest to the general public and much to lose if they’re caught passing it along. If journalists can’t protect their sources’ identities, you will be much less informed about the world.