Utah's top court ponders journalist shield law

Utah's top court ponders journalist shield law
But critics of the Utah proposal say the privilege is too broad and could undermine key cases
By Paul Beebe
The Salt Lake Tribune
12/13/2007

Utah's top court ponders journalist shield law

The Utah Supreme Court is considering what experts say would be one of the strongest rules in the country shielding reporters from prosecutors, defense lawyers and judges who would punish them for refusing to reveal confidential news sources.

"It creates a near absolute privilege for reporters and their confidential sources, meaning that if a journalist was called to testify in a court hearing or an administrative hearing, they could use this shield to protect their sources," said Joel Campbell, a Brigham Young University professor and member of the Freedom of Information Committee for the national Society of Professional Journalists.

The public can comment on the proposed rule until Jan. 22 by going to www.utcourts.gov/resources/rules/comments. An advisory committee of lawyers and judges will decide if the comments warrant amending the rule, which ultimately must be approved by a majority of the court's five justices. State legislators have promised not to intervene if the rule is enacted.

Yet the rule is not without critics. Some prosecutors think it's too broad and could undermine important cases. Others say the creation of a reporter privilege will lead journalists to attempt to hide information that now cannot be concealed under Utah law. Lawyers will push back by mounting legal challenges that could swamp the already overburdened court system, critics say.

"In other words, recognition of a new privilege usually begets the use and even abuse of that new privilege," said Clark Newhall, a Salt Lake City lawyer-physician who represents medical and legal malpractice plaintiffs.

The rule would establish a balancing test that would guide the courts in determining when a journalist should be compelled to divulge confidential sources. The bar would be high. Judges would be required to balance the interests of prosecutors and defense lawyers against society's need for the free flow of information to reporters.

Only if crucial information can be discovered in no other way, or if disclosure is necessary to prevent "substantial" injury or death, or if Utah law already requires the disclosure of information such as child abuse, could a journalist be compelled to reveal sources. If all tests for disclosure are met, a judge would review the information privately before deciding to make it public. Otherwise, reporters would be shielded from demands to disclose a source's identity or face jail or large fines.

"This particular rule protects journalists and their sources and allows the rule to be overridden if death or serious injury results from not revealing sources. So it seems to be an appropriate balance between those two needs," said Salt Lake Tribune Editor Nancy Conway.

The rule does not specifically name bloggers in its definition of a reporter. But in a side note, the advisory committee acknowledges the need to accommodate new electronic forms of expression. "While there are not many 'lone pamphleteers' still functioning, they may have modern-day counterparts on the Internet," the committee wrote.

Utah is one of three states that doesn't shield reporters in some way. The proposed rule has drawn support from Attorney General Mark Shurtleff, who once opposed the concept of a reporter shield. Shurtleff was asked two years ago by Time magazine to write a friend-of-the-court brief on behalf of reporter Matt Cooper, who initially refused to identify the source for a story about the identity of former CIA officer Valerie Plame.

He agreed to write the brief. "I started looking into it. I did a lot of research into the issue and realized that it really is necessary to have a reporter privilege. Some of the most serious cases, particularly in regard to government secrecy, only came to light because someone came to a reporter in confidence," Shurtleff said.

As examples, Shurtleff pointed to Daniel Ellsberg, the Vietnam-era military analyst who leaked the Pentagon Papers to the press, and to Deep Throat, the FBI informant whose information led Washington Post reporters Bob Woodward and Carl Bernstein to expose the Watergate scandal that brought down then-President Nixon.

Paul Boyden, executive director of the Statewide Association of Prosecutors and a deputy Salt Lake County district attorney, is less sanguine. Although the rule addresses most of his concerns, Boyden thinks parts of it may lean too far in favor of reporters. Situations are bound to arise when the public interest is so overwhelming that the privilege of keeping a source unidentified should be breached, he said.

"Let's assume there is a murder trial in process and during the trial one of the defendant's fellow gang members goes to a reporter and says he committed the crime instead of the defendant," Boyden said. Under the rule, "we cannot go to the reporter and find out who it was who said that so we can make sure we are prosecuting the right person.

"Our position is there should be a balancing test that applies to that scenario, and this rule doesn't cover that. We can't find out if that's a bogus report. To us, that's a serious issue."

Boyden later said a staff attorney for the committee and a committee member told him the term "substantial injury" was left intentionally broad to cover any harm that might create an overriding public interest.

"We think that fundamental fairness in something as important outweighs the privilege, and the committee did not think so. They just didn't," he said.

* Public comment will be taken at www.utcourts.gov/resources/rules/comments until Jan. 22.

* An advisory committee will then decide if the comments warrant amending the rule.

* Utah Supreme Court justices will then vote at an undetermined date whether to approve the rule.