Words That Shield: A Textual Analysis of the Journalist's Privilege

Article excerpt

In the summer of 1995, Susan Smith was tried in Union, South Carolina, for drowning her two young sons. Before the trial, Smith was examined by a psychiatrist to determine her competency to stand trial.(1) Two South Carolina newspapers, the State in Columbia and the Greenville News, asked presiding judge William Howard to release copies of the report on Smith prepared by the state Mental Health Department.(2)

Although Judge Howard had the report sealed, State reporter Twila Decker obtained it and reported its conclusion that Smith was sane and competent to stand trial but that she suffered from severe depression. When Judge Howard asked Decker for the source of her news report, she told him she had "a contract with the source not to reveal their identity." Jay Bender, the newspaper's attorney, asserted Decker's rights under South Carolina's shield law,(3) enacted in 1993 to protect journalists from being compelled to disclose confidential information. Stating that the right under the shield law was not absolute, Judge Howard found Decker in contempt of court.(4)

Several weeks later in a Los Angeles courtroom, Judge Lance A. Ito upheld the rights of two journalists under the California shield law to refuse to reveal their confidential news sources during the double-murder trial of O.J. Simpson.(5) Tracie Savage, a reporter for KNBC in Los Angeles, used unnamed sources for a premature report that DNA tests suggested victim Nicole Brown Simpson's blood was found on the defendant's sock.(6)

In addition Joseph Bosco, a freelance writer, published a report in Penthouse magazine that a police officer, who was not named, had shopped around the premature DNA report until he found a taker.(7) Both Savage and Bosco asserted their rights under the California. shield law to maintain confidences.(8)

Simpson's defense attorneys requested the identity of the confidential sources to aid them in their case. However, in applying the shield law, Judge Ito rule that the record in the case did not support a finding that the disclosure of the identities of the confidential sources would materially assist the defendant. Although the California shield law is stated in absolute terms, Judge Ito's ruling relies heavily on a state supreme court precedent, which says that a criminal defendant seeking to overcome a news person's immunity under the shield law need not show a reasonable possibility that the information will lead to his exoneration but need only show a reasonable possibility that it will materially assist in his defense.(9)

While the South Carolina law is titled a qualified privilege, the California law is considered to be absolute. The results in the preceding cases would tend to support those conclusions. But are these shield laws so distinct in character that they can be easily classified as absolute or qualified? The mere fact that 29 state legislatures acted independently in creating these protections would suggest otherwise.

The researchers set out to examine shield law content as a means of determining the relative strength of the individual statutes. As a first step toward accomplishing this objective, this study will recount the origins of such laws in this country beginning with the enactment of the first in 1896 and going beyond the Branzburg v. Hayes decision. Next, the article will review the literature that has grown in the area of the journalist's privilege and analyze the textual contents and characteristics of the state shield laws. This analysis of shield law provisions will be used to gauge the relative textual strength of the privilege in individual states. The results of this examination should be useful to scholars, commentators, legal and journalism practitioners and legislators who encounter the privilege or who may wish to consider the uses and applications of a privilege statute in the future.

Shield laws in history

In 1896, Maryland became the first state to enact a law giving journalists the legal right to maintain confidential news sources. …