Number of states with shield law climbs to 40

From the Summer 2011 issue of The News Media & The Law, page 27.

In April, West Virginia became the 40th state, along with the District of Columbia, to provide a statute that shields journalists from subpoenas. The law took effect on June 10.

In Hawaii, Gov. Neil Abercrombie signed on June 16 an extension of the state’s shield law that will keep protections for journalists in the state on the books until 2013.

And in Arkansas, Gov. Mike Beebe signed an amendment to the state’s shield law that extended the privilege to include television and Internet reporters.

The West Virginia statute provides journalists with a nearly absolute reporter’s privilege to refuse to disclose confidential sources and documents that could identify confidential sources sought in the course of civil, criminal, administrative and grand jury proceedings. A court may compel the disclosure of such information only if “necessary to prevent imminent death, serious bodily injury or unjust incarceration.”

The law also provides a fairly broad definition of who can invoke the privilege, defining a reporter as someone who gathers and disseminates news to the public for a portion of the person’s livelihood. The law also specifically covers unpaid student journalists and does not limit its protection to specific types of media.

When the governor of Hawaii extended the state’s shield law, the extension came with a sunset clause because of concerns about the law, said Hawaii media lawyer Jeffrey Portnoy.

A sunset clause provides that the law will expire on a specific date — in this case, June 30, 2013 — unless further legislative action is taken to extend the law.

When the shield law was first passed in 2008, it included a sunset clause that would have caused the law to expire on June 30 had the Legislature not extended it this term.

The bill includes a requirement that a judiciary committee, known as the Standing Committee on Rules of Evidence, recommend in 2012 whether to retain the statute, codify it or repeal it prior to its expiration in 2013.

Prior to Abercrombie’s signing of the bill, the committee expressed concerns about the legislation and wanted time to study other state’s shield laws and their effect on media and the prosecution of cases, Portnoy said. The governor signed the bill with some reservations.

“The governor had indicated that he was having concerns about whether a shield law was necessary, but, fortunately, he did sign the bill,” Portnoy said.

The law provides a qualified privilege for journalists to refuse to reveal sources and newsgathering materials. In addition to covering individuals who work or previously worked for a magazine, newspaper or radio or television station, the law also protects online journalists if they regularly report on information of public interest.

While the sunset provision is not ideal, Portnoy said he is optimistic that the law will be made permanent in some form.

“Whether the cake is going to have some different ingredients, I don’t know,” he said. “Hopefully it won’t be significantly changed.”

In Arkansas the definition of the type of media that fall under the statute’s protections was updated in March.

The shield law amendment added television and Internet reporters to the list, allowing those journalists to be protected from compelled disclosure of their sources.

Legislators sought to update the law, which was originally introduced in 1937. A federal court earlier held that television reporters were covered by the law, even though they were not explicitly mentioned.