BILL NUMBER: AJR 16 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 3, 2010
AMENDED IN ASSEMBLY JULY 1, 2009
INTRODUCED BY Assembly Member Evans
(Principal coauthor: Senator Leno)
APRIL 30, 2009
Relative to journalism shield laws.
LEGISLATIVE COUNSEL'S DIGEST
AJR 16, as amended, Evans. Journalism shield laws.
This measure would urge the Congress and President of the United
States to work together to enact a shield law for America's
journalists.
Fiscal committee: no.
WHEREAS, A free press is vital to the publication of important
news within our society so that our government is accountable to its
citizens; and
WHEREAS, A journalist's promise of confidentiality to a source of
information is often the only way the public can learn about waste,
fraud, and abuse in government and the private sector, and the forced
disclosure of confidential sources and information will cause
individuals to refuse to talk to journalists, resulting in a chilling
effect on the free flow of information and the public's right to
know; and
WHEREAS, The most famous confidential source in United States
history, W. Mark Felt, also known as Deep Throat, voluntarily
revealed his identity as a resident of Santa Rosa 33 years after the
Watergate scandal revealed corruption in the highest levels of the
Nixon White House; and
WHEREAS, Shield laws promote the free flow of information to the
public and prevent government from making journalists its
investigative agents because they prohibit courts from holding
journalists in contempt for refusing to disclose unpublished news
sources or information received from those sources; and
WHEREAS, California's shield law was first enacted in 1935 and
later incorporated as subdivision (b) of Section 2 of Article I of
the California Constitution in 1980 to provide that a journalist may
not be held in contempt for refusing to disclose a news source or
unpublished information gathered for news purposes; and
WHEREAS, California's shield law was broadened in 2000 to also
provide that no testimony or other evidence given by a journalist
under subpoena in a civil or criminal proceeding may be construed as
a waiver of immunity rights provided by the California Constitution,
that a journalist subpoenaed in any civil or criminal proceeding
shall be given at least five days' notice, except in exigent
circumstances, and that a judge must set forth findings on the record
stating why the testimony of a journalist is essential to guarantee
the defendant's constitutionally guaranteed right to a fair trial
when presiding over a criminal trial wherein a journalist is
asserting protection under the media shield law; and
WHEREAS, In O'Grady v. Superior Court (2006) 139 Cal.App.4th 1423,
the application of California's shield law was further broadened to
include the gathering and collection of news by journalists
publishing information through the Internet; and
WHEREAS, Thirty-seven Thirty-nine
states: Alabama, Alaska, Arizona, Arkansas, California, Colorado,
Connecticut, Delaware, Florida, Georgia, Hawaii, Illinois, Indiana,
Kansas, Kentucky, Louisiana, Maine, Maryland, Michigan,
Minnesota, Montana, Nebraska, Nevada, New Jersey, New Mexico, New
York, North Carolina, North Dakota, Ohio, Oklahoma, Oregon,
Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah,
and Washington Washington, and Wisconsin
, and the District of Columbia, have statutory shield laws
giving journalists some form of privilege against compelled
production of confidential or unpublished information; and
WHEREAS, Twelve Ten states: Idaho,
Iowa, Kansas, Massachusetts, Mississippi,
Missouri, New Hampshire, South Dakota, Vermont, Virginia,
West Virginia, and Wisconsin and West Virginia
have established varying confidentiality privileges for journalists
through their courts; and
WHEREAS, In 2009, legislation was introduced in two states, Kansas
and Massachusetts, to establish a statutory shield law and in two
states, Maine and New York, to expand their shield laws; and
WHEREAS, Two companion measures in the 111th Congress, House
Resolution 985 and Senate Bill 448, would establish a federal shield
law for journalists through the enactment of the Free Flow of
Information Act; and
WHEREAS, House Resolution 985 passed the House of Representatives
on March 31, 2009, by a voice vote, demonstrating the broad
bipartisan support for the bill, and Senate Bill 448 is expected to
be considered by the Senate Judiciary Committee soon; and
WHEREAS, President Barack Obama cosponsored media shield
legislation when he was a Senator in the 110th Congress; and
WHEREAS, Attorney General Eric Holder, during his Senate
confirmation hearing in January 2009, expressed support for media
shield legislation; and
WHEREAS, The pending Free Flow of Information Act in the 111th
Congress establishes that a federal entity may not compel a
journalist to divulge confidential sources unless a court determines
by a preponderance of the evidence that: (1) all reasonable
alternative sources of information have been exhausted, (2)
information is needed to prevent an act of terrorism or other
significant harm to national security, to prevent death or
substantial bodily harm, to investigate a leak of properly classified
information or private trade secret, health or financial
information, and to furnish eyewitness observations of a crime, and
(3) taking into account the public interest in, disclosure of a
confidential source and the public interest in gathering and
disseminating news and information; and
WHEREAS, The pending Free Flow of Information Act in the 111th
Congress stipulates that the testimony or documents sought by a
federal entity from a journalist should be narrowly and appropriately
tailored in scope and time period; and
WHEREAS, A 2008 University of Arizona survey found that there were
335 federal subpoenas in 2006 seeking information obtained by a
reporter following a promise of confidentiality and, of these, 21
sought the names of confidential sources and 13 sought other
information obtained under a promise of confidentiality; and
WHEREAS, Over the last seven years, four federal courts of
appeals, the First Circuit, the Fifth Circuit, the Ninth Circuit, and
the Circuit for the District of Columbia, have affirmed contempt
citations issued to reporters who declined to reveal confidential
sources; and
WHEREAS, Federal courts are imposing prison sentences that are
increasingly severe on journalists for nondisclosure of confidential
sources, most recently demonstrated in 2008 by the United States
District Court for the District of Columbia in Hatfill v. Mukasey
(D.C. Cir. Mar. 7, 2008, No. 031793), in which the court ordered
fines of up to $5,000 a day on a journalist and expressly prohibited
the journalist from seeking assistance from her employer in paying
the fines, even though the fine related to activities occurring
within the course and scope of her employment; and
WHEREAS, In relation to Miller v. United States (2005) 125 S.Ct.
2977, and Cooper v. United States (2005) 125 S.Ct. 2977, the
Attorneys General of 34 states: Arizona, California, Colorado,
Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Iowa,
Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi,
Montana, Nebraska, New Mexico, North Carolina, North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota,
Tennessee, Texas, Utah, Vermont, Washington, West Virginia, and
Wisconsin, and the District of Columbia, stated in an amicus brief
submitted to the United States Supreme Court, "A federal policy that
allows journalists to be imprisoned for engaging in the same conduct
that these State privileges encourage and protect buck[s] that clear
policy of virtually all states, and undermines both the purpose of
the shield laws, and the policy determinations of state courts and
legislatures that adopted them"; and
WHEREAS, Confidentiality of certain communications has long been
protected in order to further important interests, both public and
private, including communications between doctor and patient, lawyer
and client, and priest and penitent; and
WHEREAS, A May 2005 poll conducted by the First Amendment Center
and American Journalism Review found that 69 percent of Americans
agree with the statement: "Journalists should be allowed to keep a
news source confidential"; now, therefore, be it
Resolved by the Assembly and the Senate of the State of
California, jointly, That the Legislature of the State of California
respectfully urges the Congress and President of the United States to
work together to enact a shield law for America's journalists; and
be it further
Resolved, That the Chief Clerk of the Assembly transmit copies of
this resolution to the President and the Vice President of the United
States, to the Senate Majority Leader, to the Speaker of the House
of Representatives, and to each Senator and Representative from
California in the Congress of the United States.