BILL ANALYSIS
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|SENATE RULES COMMITTEE | AJR 16|
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CONSENT
Bill No: AJR 16
Author: Evans (D)
Amended: 6/3/10 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 6/15/10
AYES: Corbett, Harman, Hancock, Leno, Walters
ASSEMBLY FLOOR : 78-0, 7/6/09 (Consent) - See last page for
vote
SUBJECT : Journalism shield laws
SOURCE : California Newspaper Publishers Association
DIGEST : This resolution urges the Congress and the
President of the United States to work together to enact a
shield law for America's journalists.
ANALYSIS : 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,
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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for refusing to disclose unpublished news sources or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or unpublished information gathered for news purposes.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 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.
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This resolution states that nine states have statutory
shield laws giving journalists some form of privilege
against compelled production of confidential or unpublished
information.
This resolution states that 10 states have established
varying confidentiality privileges for journalists through
their courts.
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 United States 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 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,
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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.
FISCAL EFFECT : Fiscal Com.: No
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SUPPORT : (Verified 6/16/10)
California Newspaper Publishers Association (source)
American Civil Liberties Union
ARGUMENTS IN SUPPORT : 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."
ASSEMBLY FLOOR :
AYES: Adams, Ammiano, Arambula, Beall, Bill Berryhill, Tom
Berryhill, Blakeslee, Block, Blumenfield, Brownley,
Buchanan, Caballero, Charles Calderon, Carter, Chesbro,
Conway, Cook, Coto, Davis, De La Torre, De Leon, DeVore,
Duvall, Emmerson, Eng, Evans, Feuer, Fletcher, Fong,
Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick,
Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill,
Huber, Huffman, Jeffries, Jones, Knight, Krekorian, Lieu,
Logue, Bonnie Lowenthal, Ma, Mendoza, Miller, Monning,
Nava, Nestande, Niello, Nielsen, John A. Perez, V. Manuel
Perez, Portantino, Ruskin, Salas, Saldana, Silva,
Skinner, Smyth, Solorio, Audra Strickland, Swanson,
Torlakson, Torres, Torrico, Tran, Villines, Yamada, Bass
NO VOTE RECORDED: Anderson, Vacancy
RJG:mw 6/16/10 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
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