BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AJR 16 (Evans)
As Amended July 1, 2009
Hearing Date: June 15, 2010
Fiscal: No
Urgency: No
KB:jd
SUBJECT
Journalism Shield Laws
DESCRIPTION
This resolution, sponsored by the California Newspaper
Publishers Association, would urge the Congress and President of
the United States to work together to enact a shield law for
America's journalists.
BACKGROUND
On June 3, 1980, the people of the State of California amended
the State Constitution to guarantee that a journalist shall not
be held in contempt by any court, legislative or administrative
body, or by any other body having the power to issue subpoenas,
for refusing to disclose the source of any information or for
refusing to disclose any unpublished information obtained or
prepared in gathering, receiving, or processing of information
for communication to the public. (Section 2(b), article I,
California Constitution.) This protection extends to radio or
television news reporters. The media shield law was first
enacted by statute in 1935, and was subsequently amended into
the California Constitution in 1980.
AB 1860 (Migden, Chapter 377, Statutes of 2000) further
strengthened the constitutional protection for journalists by
making a number of clarifications relative to the rights of
journalists under the media shield law. First, AB 1860 provided
that testimony or evidence given by a journalist under subpoena
shall not be deemed a waiver of the immunity granted by the
Constitution and that, except in exigent circumstances, a
(more)
AJR 16 (Evans)
Page 2 of ?
journalist shall be given five days notice that his or her
appearance is required. Further, AB 1860 provided that if the
journalist is held in contempt notwithstanding the
constitutional provision, the court shall set forth findings, in
writing or on the record, why the information is material to the
person seeking the information and why alternate sources of
information are not sufficient to satisfy the defendant's right
to a fair trial. AB 1860 was enacted in response to a rash of
media cases involving judges who found journalists in contempt
for refusing to disclose their sources of information relating
to, for example, a fight at a football game or a key witness in
a murder case.
In a decision dated May 26, 2006, the Sixth Appellate District
further extended California's shield law to protect journalists
publishing information through the Internet. (O'Grady v.
Superior Court (Apple Computer, Inc.) (2006) 139 Cal.App.4th
1423.)
In recent years, the attention to journalist shield laws has
intensified due in part to the controversy surrounding New York
Times reporter Judith Miller. Miller served an 85-day jail
sentence rather than reveal her source to a grand jury
investigating the leak of the identity of Valerie Plame Wilson
as a CIA operative. Also, in 2007, two San Francisco Chronicle
reporters were taken to court to determine whether they should
be forced to reveal the source that leaked testimony by Barry
Bonds and other athletes to a grand jury investigating a
laboratory's illicit distribution of steroids. Finally, another
journalist who shot a video of a June 2005 clash between the San
Francisco police and a group of "anarchist demonstrators" faced
contempt sanctions for refusing to turn over his tapes that were
not broadcast and thus not available to the government.
Federal courts have also handed down increasingly severe prison
sentences on journalists for nondisclosure of confidential
sources. In Hatfill v. Mukasey (2008) (539 F. Supp. 2d 96), the
United States District Court for the District of Columbia
ordered a reporter to pay fines of up to $5,000 a day for civil
contempt for failing to identify her sources. The court
expressly prohibited the journalist from seeking reimbursement
from her employer in paying the fines.
This measure is almost identical to AJR 31 (Evans, Resolution
Chapter 135, Statutes of 2006), AJR 24 (Evans, Resolution
Chapter 119, Statutes of 2007) and AJR 60 (Evans, Resolution
AJR 16 (Evans)
Page 3 of ?
Chapter 102, Statutes of 2008).
CHANGES TO EXISTING LAW
This resolution states that a free press is vital to the
publication of important news within our society so that our
government is accountable to its citizens.
This resolution states that 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.
This resolution states that 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.
This resolution states that 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.
This resolution finds that 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.
This resolution finds that 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
AJR 16 (Evans)
Page 4 of ?
when presiding over a criminal trial wherein a journalist is
asserting protection under the media shield law.
This resolution finds that, 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.
This resolution states that thirty-seven states have statutory
shield laws giving journalists some form of privilege against
compelled production of confidential or unpublished information.
This resolution states that twelve states have established
varying confidentiality privileges for journalists through their
courts.
This resolution states that, 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.
This resolution states that 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 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 U.S. Senate Judiciary Committee soon.
This resolution states that 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.
This resolution states that the pending Free Flow of Information
Act stipulates that the testimony or documents sought by a
AJR 16 (Evans)
Page 5 of ?
federal entity from a journalist should be narrowly and
appropriately tailored in scope and time period.
This resolution states that 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.
This resolution states that 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.
This resolution finds that 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.
This resolution finds that, 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 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."
This resolution states that 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.
This resolution urges the Congress and the President of the
United States to work together to enact a shield law for
America's journalists.
AJR 16 (Evans)
Page 6 of ?
COMMENT
1. Stated need for the bill
The author states:
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.
However, 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.
2. Findings and declarations document need for federal shield
law for journalists
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. The willingness of
confidential sources to share information without fear of being
exposed also led to the revelations of the recent Enron and Abu
Ghraib prisoner abuse scandals.
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
AJR 16 (Evans)
Page 7 of ?
States Senate Committee on the Judiciary, hearings on Reporters'
Shield Legislation: Issues and Implications, July 20, 2005.)
The resolution further notes 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. Of these, 21 subpoenas sought the names of
confidential sources and 13 sought other information obtained
under a promise of confidentiality. The resolution also
highlights that in the last seven years, four federal courts of
appeals have affirmed contempt citations issued to reporters who
declined to reveal confidential sourses, each imposing prison
sentences more severe than any previously known to have been
experienced by journalists in American history.
There is apparent consensus among the states that shield laws
for journalists are important. The resolution details that
thirty-nine states now have statutory shield laws which give
journalists some form of privilege against compelled production
of confidential sources or unpublished information, and 10
others where courts have established varying confidentiality
privileges for journalists. 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".
3. Pending Congressional measures
There are two measures pending in Congress, H.R. 985 and S.B.
448, that would establish a federal shield law for journalists
through the enactment of the Free Flow of Information Act. H.R.
985 passed the House of Representatives on March 31, 2009, and
has since been referred to the U.S. Senate Judiciary Committee.
The resolution notes that S.B. 448 is expected to be heard by
that committee soon.
The Free Flow of Information Act would prohibit a federal entity
from compelling journalists and their employers to divulge
confidential sources unless a court determines by preponderance
of the evidence that: (1) all reasonable alternative sources
have been exhausted; (2) that the testimony or document sought
is essential; and (3) that nondisclosure would be contrary to
the public interest, taking into account both the public
interest in compelling disclosure and the public interest in
gathering news and maintaining the free flow of information.
AJR 16 (Evans)
Page 8 of ?
The enactment of the Free Flow of Information Act would provide
additional protections to California's journalists thereby
enhancing the public's capacity to learn vital information about
waste, fraud, and abuse in government and the private sector.
Support : American Civil Liberties Union
Opposition : None Known
HISTORY
Source : California Newspaper Publishers Association
Related Pending Legislation : None Known
Prior Legislation : See Background.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 78, Noes 0)
**************