Lawyer and journalist Robert J. Ambrogi, who writes the Media Law blog, has passed along the full text of a proposed Massachusetts shield law filed last week by state Senate president Robert Travaglini. I’ve uploaded the text as a PDF file; click here.
Ambrogi, who helped draft the proposed law, writes:
The bill is broad in its definition of who it covers, in order to include bloggers and freelance reporters. It defines coverage to include any person who “engages in the gathering of news or information” and “has the intent, at the beginning of the process of gathering news or information, to disseminate the news or information to the public.”
As I’ve argued before, this is the correct approach, as it protects journalism rather than journalists. If a blogger is engaged in journalism, she or he ought to have just as much protection as a staff reporter for a large news organization.
The proposed law would protect journalists from having to give up their confidential sources, notes, unused video and other materials they amassed in the course of doing their jobs. But the bill is also sensitive to the fact that the courts have never recognized a constitutional right for reporters not to testify in a legal proceeding. In addition to an exception for terrorism investigations, the bill lays out this balancing test that a judge would have to use before compelling a journalist to testify:
(1) the news or information is critical and necessary to the resolution of a significant legal issue before an entity of the judicial, legislative, or executive branch of the Commonwealth that has the power to issue a subpoena;
(2) the news or information could not be obtained by any alternative means; and
(3) there is an overriding public interest in the disclosure.
This is precisely the balancing test proposed by Justice Potter Stewart in the U.S. Supreme Court’s Branzburg v. Hayes decision in 1972. And it certainly ought to allay any concerns that a shield law would give the media too much power. For example, if the federal government had such a law in place, there’s little doubt that Judith Miller, Matthew Cooper, et al. still would have been compelled to testify.
At a moment when journalists behaving badly is a recurring theme, this is not an auspicious moment to be pushing for increased protections for newsgathering. Nevertheless, more than 30 states have some type of shield law on the books. It’s time for Massachusetts to join those ranks.