A Theory of Shield Laws: Journalists, Their Sources, and Popular Constitutionalism

A Theory of Shield Laws: Journalists, Their Sources, and Popular Constitutionalism

A Theory of Shield Laws: Journalists, Their Sources, and Popular Constitutionalism

A Theory of Shield Laws: Journalists, Their Sources, and Popular Constitutionalism

Synopsis

In this history of debate over journalists' confidential sources, starting in 1894, Smith employs contemporary theories of constitutional interpretation to weave a surprising narrative melding legislature-made statutory law and court-made constitutional law. Working under the banner of "popular constitutionalism," Smith tests Michael Gerhardt's theory of non-judicial precedents to illuminate the role journalists and press advocates played in shaping the path of constitutional law and giving voice to deeply felt First Amendment values. Along the way, the author corrects the historical record in important ways, including recasting events that led to the nation's first shield law in 1896.

Excerpt

John Henry Wigmore, the great legal treatise writer and expert on evidence, was wrong at least once. In 1923, when Maryland still had the nation’s only statutory shield law to protect journalists from compelled disclosure of confidential sources, Wigmore declared the law “as detestable in substance as it is crude in form” and predicted it would “probably remain unique.” Today, however, there are similar shield laws on the books in 40 states and the District of Columbia. From 2006 to 2011 alone, eight state legislatures adopted such statutes, and the Utah Supreme Court created a de facto shield law as part of the state’s rules of evidence.

See e.g., WIGMORE ON EVIDENCE (Arthur Best ed., 4th ed. 2008).

5 WIGMORE ON EVIDENCE § 2286 n.7 (2d ed. 1923).

Id.

The Reporters Committee for Freedom of the Press maintains a frequently updated state-by-state list of existing shield laws. See The Reporter’s Privilege, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, http://www.rcfp.org/privilege (last visited Oct. 29, 2012).

The states were Connecticut, Washington, Maine, Hawaii, Texas, Kansas, Wisconsin, West Virginia. See Casey Murray, [Connecticut] Legislature Passes Qualified Reporter’s Shield Law, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS (May 4, 2006), http://www.rcfp.org/browse-medialaw-resources/news/legislature-passes-qualified-reporters-shield-law;

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