The Boston Globe has published an editorial favoring passage of a shield law that would protect journalists from being ordered to identify their anonymous sources or turn over confidential reporting materials. The editorial is a strong statement in favor of press freedom, but it would have benefited from some context.
The Globe says that Massachusetts is one of just 10 states that lacks a shield law, which is accurate but not entirely true. In fact, 49 states, including Massachusetts, have some sort of shield protection either in the form of a state law or a ruling by state courts. The sole exceptions are Wyoming and, notoriously, the federal government.
Massachusetts is among those states that rely on court rulings rather than an actual law, and the Reporters Committee for Freedom of the Press lumps the state in with seven others that provide the lowest level of protection, a list that also comprises Idaho, Utah, Iowa, Missouri, Virginia, Mississippi and New Hampshire.
According to the Reporters Committee, Massachusetts lacks not only a shield law but also a ruling by its highest court, the Supreme Judicial Court, that would recognize some sort of journalists’ privilege. “Nevertheless,” the organization says, “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.”
The way such balancing tests work is that one of the parties in a criminal or civil matter — in criminal court, usually the prosecution — demands that a journalist turn over information that they believe is crucial to proving their case. A judge then determines whether the information is important enough to require that the journalist produce it and if there is any other non-journalistic source for the same information.
As the Globe editorial notes, the most recent time that happened here was last December, when Superior Court Judge Beverly Cannone ordered Boston magazine reporter Gretchen Voss to turn over notes she had taken during an off-the-record interview with murder suspect Karen Read. Cannone reversed herself the following month, and Read was acquitted of the most serious charges in her case in June. (As the Globe editorial observes, Boston magazine is now owned by Boston Globe Media, but Voss was defended by the previous ownership.)
The legislation supported by the Globe would protect reporters who find themselves in a situation similar to that of Voss. Two identical bills that are pending in the state Legislature, one filed by Rep. Richard Haggerty, D-Woburn (H.1738), and another filed by Sen. Rebecca Rausch, D-Needham (S.1253), say in part:
In any matter arising under state law, a government entity may not compel a covered journalist to disclose protected information, unless a court of competent jurisdiction determines by a preponderance of the evidence, after providing notice and an opportunity to be heard to the covered journalist, that the disclosure of the protected information is necessary to prevent, or to identify any perpetrator of, an act of terrorism against the United States, the commonwealth or its subdivisions; or the disclosure of the protected information is reasonably likely to prevent a threat of imminent violence, bodily harm, or death.
Terrorism, imminent violence or death are clearly much more stringent requirements than simply needing confidential information to prove a court case. Unfortunately, the chances of such legislation being enacted must be seen within the context of the Legislature’s inability to accomplish much of anything, let alone something as controversial as this. As the Globe observes, “the Massachusetts Legislature has for at least 15 years running declined to allow even a floor vote on the measure.”
One final bit of trivia: Rep. Haggerty is a member of the family that has owned The Daily Times Chronicle of Woburn since its founding in 1901, and where I was on staff for much of the 1980s.
The anti-First Amendment intent of the government’s actions was underscored by U.S. District Judge William Sessions III in Burlington, Vermont, who said that he could find no reason for detaining Öztürk other than her co-authoring 
