Sunday, March 11, 2007

Journalist, shield thyself!

Spot's last post, Not exactly, D.J., raised the issue of journalist shield laws or privilege against disclosing sources. It was in kind of an off-hand comment at the end, but the issue of journalists' protection of sources is an important one, unaddressed by the court in Olson v. Brodkorb. This is the issue where the rubber will meet the road when it comes to deciding whether bloggers are REAL journalists.

As MNO points out in a comment, there is no federal shield law. Boy, did Judith Miller and Scooter find that out the hard way! That's why, boys and girls, when it comes to hiring lawyers, an ounce of prevention is worth a pound of cure! Lawyers are like the Fram oil filter man: you can pay them now or you can pay them later, usually much more.

The states are all over the map on the treatment of journalists' confidential sources. Here's a little crib sheet on state shield laws. As it happens, Minnesota does have a shield law. But if you're a journalist, it and four bucks will get your source a latte at Starbucks. Spot will take you though some sections of the Minnesota Free Flow of Information Act.

There is the public policy behind the statue, Minn. Stat. § 595.022:

In order to protect the public interest and the free flow of information, the news media should have the benefit of a substantial privilege not to reveal sources of information or to disclose unpublished information. To this end, the freedom of press requires protection of the confidential relationship between the news gatherer and the source of information. The purpose of sections 595.021 to 595.025 is to insure and perpetuate, consistent with the public interest, the confidential relationship between the news media and its sources.

And here is the section prohibiting disclosure, Minn. Stat. § 595.023:

Except as provided in section 595.024, for the purpose of transmission, dissemination or publication to the public shall be required by any court, grand jury, agency, department or branch of the state, or any of its political subdivisions or other public body, or by either house of the legislature or any committee, officer, member, or employee thereof, to disclose in any proceeding the person or means from or through which information was obtained, or to disclose any unpublished information procured by the person in the course of work or any of the person's notes, memoranda, recording tapes, film or other reportorial data whether or not it would tend to identify the person or means through which the information was obtained.

Boy, that's great Spotty! Anybody can spill their guts to a reporter—or maybe even fib to them a little—and never have to worry about it coming back to bite them!

As usual grasshopper, you forgot to read the fine print. What 23 giveth, 24 taketh away: Minn. Stat. § 595.024:

Subdivision 1. Disclosure; application. A person seeking disclosure may apply to the district court of the county where the person employed by or associated with a news media resides, has a principal place of business or where the proceeding in which the information sought is pending.

Subd. 2. Disclosure allowed; conditions. The application shall be granted only if the court determines after hearing the parties that the person making application, by clear and convincing evidence, has met all three of the following conditions:

(1) that there is probable cause to believe that the specific information sought (i) is clearly relevant to a gross misdemeanor or felony, or (ii) is clearly relevant to a misdemeanor so long as the information would not tend to identify the source of the information or the means through which it was obtained,

(2) that the information cannot be obtained by alternative means or remedies less destructive of first amendment rights, and

(3) that there is a compelling and overriding interest requiring the disclosure of the information where the disclosure is necessary to prevent injustice.

Subd. 3. Determination; appeal. The district court shall consider the nature of the proceedings, the merits of the claims and defenses, the adequacies of alternative remedies, the relevancy of the information sought, and the possibility of establishing by other means that which the source is expected or may tend to prove. The court shall make its appropriate order after making findings of fact. The order may be appealed directly to the Court of Appeals according to the Rules of Appellate Procedure. The order is stayed and nondisclosure shall remain in full force and effect during the pendency of the appeal. Where the court finds that the information sought has been published or broadcast, there shall be no automatic stay unless an appeal is filed within two days after the order is issued. Either party may request expedited consideration.

In other words, a prosecutor can almost always compel the disclosure of the information and identification of the source unless the information is so unimportant that the prosecutor probably wouldn't bother with it anyway. But that's not all. There is an important exception to the shield in cases like the one Blois Olson brought against Michael Brodkorb. Minn. Stat. § 595.025 says this:

Subdivision 1. Disclosure prohibition; applicability. The prohibition of disclosure provided in section 595.023 shall not apply in any defamation action where the person seeking disclosure can demonstrate that the identity of the source will lead to relevant evidence on the issue of actual malice.

Subd. 2. Disclosure conditions. Notwithstanding the provisions of subdivision 1, the identity of the source of information shall not be ordered disclosed unless the following conditions are met:

(a) that there is probable cause to believe that the source has information clearly relevant to the issue of defamation;

(b) that the information cannot be obtained by any alternative means or remedy less destructive of first amendment rights.

Subd. 3. Determination; appeal. The court shall make its order on the issue of disclosure after making findings of fact, which order may be appealed to the Court of Appeals according to the Rules of Appellate Procedure. During the appeal the order is stayed and nondisclosure shall remain in full force and effect.

The court in Olson v. Brodkorb was silent on the issue of the applicability of the shield law. But that won't, of course, keep Spot from talking about it. You can see, boys and girls, that by the terms of 595.025, a defendant can be forced to cough up the identity of a source in any half-decent defamation dustup. Before poking a hole in the shield, however, a court must first determine if it even exists.

Here's the key language:

. . . no person who is or has been directly engaged in the gathering, procuring, compiling, editing, or publishing of information . . .

Is a rumor-mongering blogger (the "RMB"), such as M-- , well never mind that, a journalist? Spot doesn't think so, but some courts around the country have foolishly disagreed with Spot.

Why not, Spotty?

Because the RMB is not really a news source. The RMB exists in a nether world of gossip and innuendo. The principal goal of the RMB is not to inform but rather to harm political opponents. Some of the RMB's content is opinion, but most of it is trafficking in unverified natter and tattle. Go back and read the public policy section of the Minnesota shield law.

A lot of the RMB's material could never see the light of day in a legitimate news outlet. Sometimes RMB stories to make it into print, but it is only after a legitimate journalist gets verification and cross examines the source a little. Fine, says Spot, let the RMB publish its rumors, but hold it to the same standard as any other ordinary citizen.

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