BILL ANALYSIS
AJR 16
Page 1
Date of Hearing: June 23, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AJR 16 (Evans) - As Introduced: April 30, 2009
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT : FREEDOM OF THE PRESS: SHIELD LAW FOR AMERICA'S
JOURNALISTS
KEY ISSUE : SHOULD THE LEGISLATURE CONTINUE TO URGE CONGRESS TO
ENACT A SHIELD LAW FOR AMERICA'S JOURNALISTS?
FISCAL EFFECT : As currently in print this measure is
non-fiscal.
SYNOPSIS
This resolution, following on the footsteps of 3 virtually
identical resolutions passed by unanimous vote by this Committee
in recent years, respectfully urges Congress to enact a shield
law for America's journalists. According to the author this
resolution will help preserve the critically-needed free speech
protections journalists in California currently enjoy under the
state Constitution. California's Constitution recognizes the
vital role journalists play in our democracy and that compelling
journalists to disclose confidential information is contrary to
the public interest. This resolution therefore urges the
federal government to enact "shield law" protections at the
national level like those enjoyed by journalists in California.
SUMMARY : Urges Congress to enact a shield law for America's
journalists. Specifically, this resolution, among other things,
makes the following findings:
1)A free press is vital to the publication of important news
within our society so that our government is accountable to
its citizens;
2)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
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journalists, resulting in a chilling effect on the free flow
of information and the public's right to know;
3)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;
4)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journalists in contempt for refusing to disclose unpublished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;
5)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;
6)Thirty-seven states: Alabama, Alaska, Arizona, Arkansas,
California, Colorado, Connecticut, Delaware, Florida, Georgia,
Hawaii, Illinois, Indiana, 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, and the
District of Columbia, have statutory shield laws giving
journalists some form of privilege against compelled
production of confidential or unpublished information;
7)Twelve states: Idaho, Iowa, Kansas, Massachusetts,
Mississippi, Missouri, New Hampshire, South Dakota, Vermont,
Virginia, West Virginia, and Wisconsin have established
varying confidentiality privileges for journalists through
their courts;
8)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;
9)Pending 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 House Resolution 985 passed the House of
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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;
10)The pending Free Flow of Information Act 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;
11)The pending Free Flow of Information Act 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;
12)President Barack Obama co-sponsored media shield legislation
when he was a Senator in the 110th Congress; and Attorney
General Eric Holder, during his Senate confirmation hearing in
January 2009, expressed support for media shield legislation;
13)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;
14)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;
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15)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";
16)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.
EXISTING LAW :
1)Provides in California's shield law (first enacted in 1935 and
later incorporated into the state Constitution) that a
journalist may not be held in contempt for refusing to
disclose a news source or unpublished information gathered for
news purposes. (California Constitution, Article I, Section
2, subdivision (b).)
2)Provides, pursuant to an expansion of the law in 2000, 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. (Code of
Civil Procedure Section 1986.1.)
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COMMENTS : This non-controversial resolution, following on the
footsteps of 3 virtually identical resolutions passed by
unanimous vote by this Committee in recent years, respectfully,
urges Congress to enact a shield law for America's journalists
in order to preserve the valuable free flow of information to
the public arising from a journalists' reliance on confidential
sources. According to the author, "A free press is essential to
preserving the American way of life because it provides for the
free flow of information, which enables us as citizens to
effectively govern ourselves and fully exercise our freedoms
within the Bill of Rights." The author states that "the lack of
a federal shield law undermines California's ability to protect
a free press under state law because there are no protections
for California journalists subpoenaed under federal law to a
federal court. Absent some legal protection against the forced
disclosure of confidential news sources in federal court,
potential whistle blowers may remain silent and the public
remain uninformed about issues of importance to the public
interest."
The Supreme Court has recognized that the press "serves and was
designed to serve [by the Founding Fathers] as a powerful
antidote to any abuses of power by governmental officials."
( Mills v. Alabama , 384 U.S. 214, (1966).) The historical record
demonstrates that the press cannot effectively perform this
constitutionally recognized role without some confidence in its
ability to maintain the confidentiality of those sources who
will speak only on promise of anonymity.
In addition to the Deep Throat example mentioned in the
resolution, the author notes other examples of indispensable
journalism that would not be possible without a reporter's
credible pledge of confidentiality to a source. For example,
during the Vietnam war, the Pentagon Papers were leaked to The
New York Times and The Washington Post, and the revelations of
the recent Enron and Abu Ghraib prisoner abuse scandals relied
on the willingness of confidential sources to share their
secrets without fear of their identities being exposed.
Commentators note that recently there has been an unusual surge
in the number of subpoenas issued by courts seeking the
compelled disclosure of journalists' confidential sources in a
variety of cases. (Testimony of Lee Levine before the United
States Senate Committee on the Judiciary, hearings on Reporters'
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Shield Legislation: Issues and Implications, July 20, 2005.) It
is also noted in the resolution that 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. In support of the
resolution, the author highlights that in the last 7 years, four
federal courts of appeals have affirmed contempt citations
issued to reporters who declined to reveal confidential courses,
each imposing prison sentences more severe than any previously
known to have been experienced by journalists in American
history.
There is a clear consensus among the states that shield
protections are important. Every state but Wyoming has shield
protections in place. Thirty-seven states and the District of
Columbia have statutory protections. Thirteen states have
established protections through their courts. In addition, as
noted in the resolution, 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".
In our democracy it has long been recognized that journalists
must occasionally depend on anonymous sources to report stories
about the operation of government and other matters of critical
public concern. Through providing federal protections to
California's journalists, the public's capacity to learn vital
information about waste, fraud and abuse in government and the
private sector is further protected. This resolution, the
author contends, appropriately seeks to thwart increasing
efforts to impose sanctions against journalists for honoring
promises of confidentiality where such sources are often
essential to the press's ability to inform the public about
matters of vital concern.
Author's Amendments : Due to Texas enacting legislation, the
author proposes the following updating amendments:
Page 2, line 26: delete "Thirty-six" and insert "Thirty-seven"
Page 2, line 32: after "Tennessee," insert "Texas,"
Page 2, line 36: delete "Thirteen" and insert "Twelve"
Page 2, line 38: delete "Texas,"
Page 3, line 1: delete "three" and insert "two"
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Page 3, line 2: delete "Kansas, Massachusetts, and Texas" and
insert "Kansas and Massachusetts"
Prior Related Resolution : AJR 60 (Evans and Leno, Res. Chapter
102, Stats. 2008), AJR 24 (Evans and Leno, Res. Chapter 119,
Stats. 2007), and AJR 31 (Evans, Res. Chapter 135, Stats. 2006)
similarly urged the Congress of the United States to enact a
shield law for America's journalists.
REGISTERED SUPPORT / OPPOSITION :
Support
CA Newspaper Publishers Association (sponsor)
ACLU
Opposition
None on file
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334