Former Mississippi Gov. Phil Bryant. Photo (cc) 2016 by Tammy Anthony Baker.

The nonprofit news organization Mississippi Today has filed an appeal with that state’s Supreme Court rather than turn over internal documents sought by former Gov. Phil Bryant, who’s suing Today over its Pulitzer Prize-winning investigation into a state welfare scandal.

It’s a high-stakes gamble: Mississippi recognizes only a very limited reporter’s privilege protecting journalists and news organizations from being ordered to identify anonymous sources and from producing documents. A lower court went along with Bryant, who argues that he is seeking evidence he needs in his attempt to prove that he was libeled by Today and its publisher, Mary Margaret White, a past guest on our “What Works” podcast. Today’s editor-in-chief, Adam Ganucheau, writes:

The Supreme Court could guarantee these critical rights for the first time in our state’s history, or it could establish a dangerous precedent for Mississippi journalists and the public at large by tossing aside an essential First Amendment protection.

As readers of Media Nation know, the U.S. Supreme Court, in its 1972 Branzburg v. Hayes decision, ruled that the First Amendment does not provide for a reporter’s privilege. Nevertheless, 49 states offer some form of privilege either through a law or a ruling by state courts. The sole exceptions are Wyoming and the federal government itself. (The latest efforts to create a federal shield law are currently stalled in the Senate.)

The reporter’s privilege in Mississippi, though, is extremely limited — so much so that Ganucheau doesn’t regard his state as having any privilege at all. The Reporters Committee for Freedom of the Press lumps Mississippi in with a group of states that have the lowest level of protection for journalism, including Idaho, Utah, Iowa, Missouri, Virginia and, sadly for us New Englanders, Massachusetts and New Hampshire.

In RCFP’s guide to the reporter’s privilege, Mississippi lawyer Hale Gregory writes that “there are no reported decisions from Mississippi’s appellate courts regarding the reporters’ privilege, qualified or otherwise,” but that several court orders by the state’s trial courts have recognized “a qualified privilege.”

Mississippi Today has emerged as a vital source of accountability journalism in our poorest state. Currently it’s partnering with The New York Times on an investigation into a county sheriff’s department that has already led to prison sentences for six deputies who tortured two Black men in their custody, and that could lead to a federal civil-rights lawsuit.

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