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Summer 2007 Bulletin
Roundup: State Lawmakers Consider Privilege Statutes
Supporters advocate shield law in Massachusetts
Journalists and First Amendment experts testified in support of a proposed reporter shield law at a June 12, 2007 hearing of the Massachusetts Joint Committee on the Judiciary.
Massachusetts House Bill 1672, or the “Free Flow of Information Act”, would prevent judges from forcing journalists to reveal the identity of their sources or turn over notes, tapes, and other news gathering materials. The bill allows for limited exceptions including the prevention of terrorism and cases where the information is of critical importance to the resolution of a pending case, it cannot otherwise be found, and disclosure outweighs protection.
Supporters called the proposed statute necessary to protect reporters and ensure unfettered public access to information, but some lawmakers gave the bill a cool reception. They raised concerns about its definition of a journalist and limiting the ability of courts to compel disclosure. Sen. Robert Creedon (D-Brockton), the democratic co-chairman of the committee, predicted the bill had little chance of passing without significant changes, The (Quincy, Mass.) Patriot Ledger reported June 13.
The bill protects “Covered Persons,” which it defines as all those engaged in gathering news with the intent, when they begin the process, to disseminate the information. “News or Information” includes all “written, oral, pictorial, photographic, or electronically recorded information” concerning “events or other matters.”
The (Springfield, Mass.) Republican reported June 13 that Creedon was particularly concerned that the proposed statute would protect bloggers, whom he called “the loosest of loose cannons.”
Rep. Eugene L. O’Flaherty (D-Suffolk), the other co-chairman of the committee and a trial lawyer, said he worried the statute would stand in the way of a court’s search for the truth by limiting judicial power to subpoena witnesses and compel disclosure, The Republican reported. He also raised concerns that the statute would protect journalists who reveal trade secrets.
Both lawmakers also asked witnesses why the law was necessary. Massachusetts case law already provides for a limited reporter privilege, but supporters argued that recent cases show that protection is not enough.
In Ayash v. Dana-Farber Cancer Institute, 443 Mass. 367 (2005), the Massachusetts Supreme Judicial Court upheld a $2.1 million default judgment against a Boston newspaper and reporter. The default judgment was entered as a sanction for a reporter’s refusal to reveal a source during discovery. (See “Boston Globe loses appeal in $2 Million Libel Suit” in the Winter 2005 issue of the Silha Bulletin.)
James Taricani, a Rhode Island television reporter who was confined to house arrest for six months in 2004 for refusing to reveal the source of a videotape showing a local government official accepting a bribe, testified at the June 12 hearing. (See “Reporters Privilege News: Journalist Sentenced to House Arrest for Refusing to Reveal Source” in the Fall 2004 issue of the Silha Bulletin.)
“Sending journalists to prison flies in the face of the First Amendment,” Taricani told legislators, according to The Republican. “We need shield laws, both on the state and federal levels, in order to do our jobs.”
If the bill passes, Massachusetts would become the 34th state with a shield law.
Texas shield law dies on technicality after passing in Senate
A bill that would have provided for a limited reporters’ privilege in Texas died because of a technicality in the House, just weeks after passing the Senate, the Associated Press (AP) reported May 22, 2007. (See “Shield Laws on Agendas in Other States and at the Federal Level” in the Spring 2007 issue of the Silha Bulletin.)
According to The Houston Chronicle, Rep. Debbie Riddle (R-Tomball) pointed out a sentence that had been added to the bill by committee counsel that was not referenced in the legislative analysis. The bill was therefore ruled out of order, and the Texas Legislature adjourned May 28, 2007 without taking further action.
The failed bill would have created a qualified privilege for people or companies engaged in gathering and disseminating news. According to The Chronicle’s May 23 story, Sen. Rodney Ellis, (D-Houston), a sponsor of the bill, expressed disappointment at the bill’s failure. “To fight so long and to move this bill so far and to have it snatched away on something that is completely non-substantive is neither good government, nor good for the people of Texas,” Ellis said.
Ellis told the AP that he and other sponsors will fight for passage of the bill again during the 2009 legislative session. The Texas legislature meets every other year.
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