Utah court adopts comprehensive shield rule
Jan 25th, 2008 by Rob
The Utah Supreme Court gave its approval Wednesday for a proposed law to protect reporters from having to disclose confidential sources and turning over unpublished notes and records. The only circumstances in which a journalist could be compelled to reveal this information would be cases in which there is
clear and convincing evidence that disclosure is necessary to prevent substantial injury or death.”
The Reporters Committee for Freedom of the Press reaffirmed its support for the measure on the eve of the court’s decision:
Maintaining the relationship between journalists and confidential sources ensures that some of the most important news will continue to reach the public discourse rather than dry up at the source. Within just the last few years alone, confidential sources helped expose the mistreatment of veterans at the Walter Reed Army Medical Center, the Abu Ghraib prison scandal and steroid abuse in our national pastime.”
The Reporters Committee and some other press advocacy groups took issue with the Rule’s exception to reporter privilege, the “injury or death” clause:
Any exception to the rule, even if it is well-intentioned, is open to potential misuse and abuse in its future application especially since the Advisory Committee offers no explanatory note to clarify how attenuated the substantial injury or death might be to sever the application of the exception. At a minimum, the Reporters Committee suggests that the Advisory Committee include the word “imminent” in the exception’s language to fortify the strength of the protection. More importantly though, such an exception is unnecessary in application. A news reporter will not stand idly by, sitting on information that would prevent the death of another citizen.”
Nearby states Arizona and Nevada have statutes offering absolute protection to reporters, meaning they cannot be called to testify on matters relating to confidential sources under any circumstances.
The Reporters Committee’s support of an unqualified privilege brings up interesting questions regarding a reporter’s role in the legal system – how far can the reporter be elevated above the ordinary citizen in legal proceedings? And with bloggers and independent publishers increasingly identifying themselves as journalists, who would NOT be considered worthy of immunity from subpoena?
The case recalls Judge Richard Posner’s controversial decision in 2003’s US Court of Appeals case McKevitt v. Pallasch, in which Posner contended that reporters should get no special treatment:
We do not see why there need to be special criteria merely because the possessor of the documents or other evidence sought is a journalist.”
