By Murray, Casey
News Media and the Law , Vol. 30, No. 1
Four states are considering shield laws to protect journalists from testifying and turning over unpublished material.
When Tony Messenger, a columnist for the Columbia (Mo.) Daily Tribune, first interviewed Shawan Daniels, he had no idea the jailhouse conversation would change his thoughts about media law.
All he wanted was information about the murder charge against Daniels, who threw a branch at a man who was attacking her, killing a 72-year-old woman after the man ducked.
Shortly after his column ran, a subpoena arrived from the public defender's office seeking his notes and other unpublished information. Messenger refused - and decided the state needed a shield law on the books.
"Tony didn't think he needed a shield law until he was sitting before a judge," said Missouri Sen. Chuck Graham, who is pushing the idea in the General Assembly.
His bill, the "Free Flow of Information Act of 2006" (S.B. 786), would provide qualified protection for the sources and unpublished material. The privilege could be overcome only if "all other available sources of information have been exhausted," the information is "essential" to the proceedings, and in libel and slander cases, if the need for the information outweighs the public interest in protecting confidentiality.
During his saga, Messenger discovered that while Missouri judges have ruled in previous cases that journalists have a privilege from testifying or turning over their notes, there is no reporter's shield in state statute.
"I believed ... it was generally codified in the law and judges would acknowledge that this privilege exists," Messenger said. "But I became generally more fearful the judge wouldn't believe it exists. . . . The biggest thing that really caused me to change my mind was going through the process up close. Even a reporter's privilege in the judiciary allows the system to use reporters as pawns. You still have a lack of certainty when you only have judicial precedence to rely on."
Messenger never had to turn over his notes or testify - Daniels pleaded guilty to second-degree assault - but his dilemma rallied Missourians to advocate for a shield law.
Sources in Missouri and three other states considering shield laws point to last year's 85-day jailing of former New York Times reporter Judith Miller as part of the impetus.
"The publicity we've had since Miller has educated the public and the legislators about why this is an important issue," said Jean Maneke, an attorney for the Missouri Press Association.
Missouri remains among the minority of states yet to implement a shield law. Thirty-one states and the District of Columbia have shield laws. Nearly every other state has legal decisions recognizing a reporter's privilege. Mississippi and Utah have no appellate court decisions, only state trial courts rulings, recognizing the privilege. Wyoming has neither statutory nor case law on the subject.
"For a number of years we had media attorneys arguing that there was a perfectly good defense under the First Amendment and that we didn't need a shield law," Maneke said. "However, in recent years there's been an increase in subpoenas, and it's becoming a much bigger problem. The Miller situation raised awareness among prosecutors and attorneys doing civil litigation - they realized they had an easier source for gathering information that they hadn't been using."
Graham, the Missouri senator, worries about the "chilling effect" that the lack of a shield law has not only on reporters but also on sources. "As a j-school graduate, I understand the importance of this. But as a senator, I also understand the importance of anonymous sources. There's times where I'm the source of something that I wouldn't give out if I thought my name could be attached to it."
His bill is in the Senate Judiciary and Civil and Criminal Jurisprudence Committee.
"I'm hoping that we have a better chance than we might have had in past years," Maneke said. …