BILL ANALYSIS
AJR 16
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CONCURRENCE IN SENATE AMENDMENTS
AJR 16 (Evans)
As Amended June 3, 2010
Majority vote
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|ASSEMBLY: |78-0 |(July 6, 2009) |SENATE: |31-0 |(June 24, |
| | | | | |2010) |
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Original Committee Reference: JUD.
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
journalists, resulting in a chilling effect on the free flow
of information and the public's right to know.
3)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journalists in contempt for refusing to disclose unpublished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.
4)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.
5)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
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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.
6)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.
The Senate amendments update the number of states who have
statutory shield laws or have established varying
confidentiality privileges for journalists through their courts.
EXISTING LAW 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.
AS PASSED BY THE ASSEMBLY , this resolution was substantially
similar to the version approved by the Senate.
FISCAL EFFECT : None
COMMENTS : This non-controversial resolution, following on the
footsteps of three virtually identical resolutions passed by
unanimous vote by the Judiciary 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."
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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'
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 seven 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-nine states and the District of
Columbia have statutory protections. Ten states have
established protections through their courts. In addition, as
noted in the resolution, a May 2005 poll conducted by the First
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Amendment Center and American Journalism Review found that 69%
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.
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334
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