In September, Maine Superior Court Justice Arthur Brennan ordered 15 media organizations to surrender videos, photographs, and notes of interviews — including material never published or broadcast — from their coverage of a November 2006 fire in Biddeford.
The organizations, which included community-weekly newspapers, daily papers, and the state’s largest TV stations, were told to turn over the information — whatever still remained — to a private company because the company convinced the judge it feared a future lawsuit in connection with the fire, and needed the information to prepare a defense, in case such a suit was filed.
This case, and others of national prominence in which attorneys — often prosecutors — seek to use information collected by journalists as evidence in court (and demand access to material that had never before been made public) has led to a renewed discussion among policymakers of whether there should be so-called “shield laws” protecting journalists from being forced to disclose confidential sources and information.
“The whole point of these laws is to get accurate, useful information flowing to the public,” says Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press in Washington DC. “They ensure that the public has a better chance of getting truthful, independently reported information, ... maintain the independence of the media, and also make it possible for sources to come forth and inform the public.”
A shield law “would have helped a lot” in the Biddeford case, says Sigmund Schutz, a lawyer with Preti Flaherty in Portland, who coordinated media outlets’ responses. In the end, all but one of the media outlets had nothing to turn over, and the one — the Portland Press Herald — requested that the demand for information be narrowed. After the narrowing, the Press Herald had nothing to turn over, either, Schutz says. But he says no media outlets objected to the ruling on First-Amendment grounds. “Standing on principle without a shield law is expensive,” Schutz says.
A federal shield-law proposal moved to the Senate floor earlier this month, and Maine lawmakers are being asked to take up a similar proposal.
If legislative leaders agree that Portland Democratic representative Jon Hinck’s bill should move forward, it would be debated by lawmakers early next year. If not, the bill would have to wait until January 2009 before even being considered.
In recent years, federal prosecutors, in particular, have gotten more aggressive at using the courts to force journalists to reveal the identities of their confidential sources, often in order to pursue charges against the source for illegally disclosing the information.
The most publicized example was the New York Times’s Judith Miller, who spent 85 days in prison in 2005 for refusing to identify the person who told her that Valerie Plame, the wife of a US ambassador, was a covert CIA agent. That investigation resulted in the conviction of White House aide Scooter Libby for perjury.
Now, Dalglish says, as a result of “the heightened attention to the issue in the federal system,” many of the 17 states without a shield law are considering them, including Maine.
Journalism organizations in the state are looking closely at Hinck’s proposal; the Maine Pro Chapter of the Society of Professional Journalists (of which I am vice-president) was slated to discuss it Wednesday, after the Phoenix’s deadline.
Leaders of the Maine Association of Broadcasters, Maine Daily Newspaper Publishers Association, and Maine Press Association all say they will review the bill in the coming weeks, and expect their organizations to back the bill in general principle, while reserving the possibility that they might want some details changed.
Hinck is open to feedback, but thinks the bill is important. “We need a free press, desperately,” he says. “I have sometimes been an intermediary between whistleblowers” and reporters, and he knows it can be difficult to get good information if a source is worried about being discovered.
Suzanne Goucher, president and CEO of the Maine Association of Broadcasters, says one argument against a shield law proposal is that it “becomes a Christmas tree for everything that [legislators] like and don’t like about the media.” But she notes that such a law could be useful, too, citing the September court ruling. “The very fact that the court would grant a motion like this, when there’s no suit pending,” she says. “You’ve got to be kidding me.”
