Two cheers for the Mass. Senate, whose proposed shield law would formalize the status quo

The Massachusetts Senate has passed a shield law that would give journalists some protection from having to identify their confidential sources, reports Matt Stout (sub. req.) in The Boston Globe. But it’s not clear how much the measure would actually accomplish.

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The shield legislation, in the form of an amendment filed by Sen. Rebecca Rausch, a Needham Democrat, would have to pass the House and be signed by Gov. Maura Healey before it becomes law.

As Stout observes, Massachusetts is just one of nine states that do not have a shield law. In fact, though, 49 states, including Massachusetts, offer some form a journalist’s privilege either through a shield law or through state court rulings. Massachusetts falls into the latter category. (Wyoming is the only state without any shield protection. The federal legal system offers no protection, either.)

According to the Reporters Committee for Freedom of the Press, the Massachusetts courts “have been willing to use a common law balancing test based on general First Amendment principles to protect reporters’ confidential sources in some circumstances.” What that means in practice is that if a prosecutor demands that a journalist identify their confidential sources, the matter will go before a judge, who will balance the need for that information against the principle that reporters must be free to do their jobs.

The shield legislation that the Senate approved Thursday would essentially formalize that balancing test. Here’s the wording:

A court may compel disclosure of the identity of a confidential source or of information that would tend to identify any such confidential source, only upon a finding, after the journalist has been provided notice and an opportunity to be heard, that the party seeking such identity or information has established by clear and convincing evidence that such identity or information is: (i) material and relevant; (ii) critical or necessary to the maintenance of a party’s claim, defense or proof of an issue highly material thereto; (iii) not obtainable from any alternative source; and (iv) there is an overriding public interest in the disclosure.

Given that the common law protections currently in effect are hazy, the legislation would have the salutary effect of formalizing them. But as you can see, a reporter could nevertheless be ordered to identify their sources or sources. Since no reporter would actually do that, they would still face the threat of being sent to jail for contempt of court.

Morever, a well-designed shield protection should pertain not to journalists but to journalism, thus covering citizen journalists, bloggers and the like as long as the court determines that they are engaged in journalism and are not merely activists. The Rausch legislation, by contrast, specifically covers journalists and news organizations.

By contrast, New York, whose state shield law is regarded as among the strongest, “provides an absolute privilege from forced disclosure of materials obtained or received in confidence by a professional journalist or newscaster, including the identity of a source…. The privilege applies in both criminal and civil contexts and to information passively received by a reporter.”

All of this confusion stems from the U.S. Supreme Court’s 1972 Branzburg v. Hayes decision, which found by a 5-4 vote that there is no First Amendment protection for confidential sources, although it contained within it some suggestion that judges should apply a balancing test.

If the Rausch amendment becomes law, it might be regarded as a step in the right direction. But it might also convince lawmakers that they’ve solved a longstanding problem and need not do anything further. That would be unfortunate.