Legal advertising has been a mainstay of the press since Colonial times. Official announcements of bids for government work, auctions and the like bring in a lot of revenue, and there were papers that were literally founded in order to be paid for publishing public notices.
But the future of legal ads in Massachusetts has come into question. State law requires that they be published in the print edition of a newspaper that circulates in the relevant city, town or county — and Gannett next month will be closing at least 19 local print weeklies after shutting down at least a half-dozen in 2021. Where will you publish legal ads?
I know that this has long been a thorn in the side of The Bedford Citizen, a nonprofit digital news outlet that would like to get its share of legals. Instead, those ads are published in Gannett’s Bedford Minuteman, whose paid circulation is less than 500, according to the Alliance for Audited Media. By contrast, the Citizen’s daily newsletter has more than 2,000 subscribers, and its website recorded some 133,000 users during the first half of 2021.
And now the Minuteman is closing. The assumption is that the legal ads will be run in The Sun of Lowell, a daily with virtually no presence in Bedford.
The current, confusingly worded law allows for the online publication of legal ads, but they must also be published in a print edition. State Rep. Ken Gordon, a Bedford Democrat, responded to my inquiry on Twitter by saying that he’s working with Rep. Alice Hanlon Peisch, D-Wellesley, to change that and allow for legals in digital-only publications.
Rep Alice Peisch and I are working to expand the definition of newspaper in the statute to include digital news platforms, or decouple digital and hard copy requirement (or not and). Will update.
Gannett also publishes the weekly Wellesley Townsman, which is not among the print weeklies that the chain will be closing. But who knows what the next round of cuts will bring? Moreover, Wellesley is home to the independent, online-only Swellesley Report, which would surely like a share of those legals. No doubt that’s part of what has piqued Rep. Peisch’s interest.
All of this comes at a time when the idea of publishing legal ads in news outlets is under assault. Why should the government subsidize journalism through advertising when it can publish legals for free on its own websites?
Florida is going through this right now. It was only recently that the state passed a law allowing government officials to advertise on news websites instead of in print newspapers if they so chose. But as Gretchen A. Peck recently reported in the trade publication Editor & Publisher, a proposal is being pushed through the state legislature that would allow for free publication on government websites instead.
The legislation has all the appearances of being part of Gov. Ron DeSantis’ war against the press. “This is just yet another of his red meat, hateful, harmful, hurtful pieces of legislation that he has been pushing this legislative session,” Democratic state Sen. Gary Farmer told E&P.
But to get back to the question of why: The Massachusetts Newspaper Publishers Association, which maintains a database of legal ads published throughout the state, offers four reasons for publishing ads in news outlets rather than on government websites:
“They must be published in a forum independent of the government.
“The published notice must be preserved and secure in a tangible record that is archived.
“The notice must be conveniently accessible by all segments of society.
“The notice’s publication must be verifiable (by way of an affidavit of publication).”
In other words, the news-outlet requirement is an anti-corruption measure. If government is allowed to publish its own legal notices, who’s to say that some of them won’t be buried for some nefarious purpose? Who’s to say the wording won’t be changed?
The involvement of news organizations in legal ads is essential not just as a revenue stream but for ensuring that the government can’t engage in self-dealing. That said, the law needs to be updated. The print requirement has been an anachronism for years, and it’s only getting worse.
It’s long past time to close a gaping loophole in the Massachusetts public records law: an exemption that allows the Legislature to conduct much of its business in secret. State agencies as well as cities and towns are required to turn over all manner of documents when members of the press and the public ask them to do so. Our elected lawmakers, though, operate under the cover of darkness.
With legislative business wrapping up during the next few weeks, it’s too late to expect anything to happen this year. But Robert Ambrogi, executive director of the Massachusetts Newspaper Publishers Association, said he expects bills aimed at rolling back at least part of the exemption to be filed next January. Unfortunately, he also expects those bills to die the same quick death that similar proposals have in previous years.
“The Legislature has no interest in changing the status quo,” Ambrogi said in an email. Justin Silverman, executive director of the New England First Amendment Coalition, added he was “fairly certain there is no appetite” on Beacon Hill for any serious effort at reform.
Spokespersons for the Legislature’s Democratic leaders, House Speaker Robert DeLeo and Senate President Karen Spilka, declined to comment.
What prompted this column was a tweet. Two weeks ago, WGBH News published the annual New England Muzzle Awards, which spotlight outrages against the First Amendment from across the region. Anthony Amore, a security expert who was the 2018 Republican candidate for secretary of state, posted on Twitter: “Somehow the Massachusetts Legislature and Robert DeLeo escaped notice despite the most glaring muzzle of them all, exempting themselves from public records requests.”
Sadly, the exemption Amore was complaining about is hardly a shocker given the sorry state of open government in Massachusetts. According to a 2018 survey by the nonprofit investigative news project MuckRock, Massachusetts is just one of four states that do not subject their legislatures to public records laws. The others: Iowa, Minnesota and Oklahoma.
“In our state’s constitution, it says that the Legislature should be ‘at all times accountable to’ the people,” Mary Connaughton of the Pioneer Institute told MuckRock. “How can they be accountable if they are hiding behind closed doors or shielding their records from the people?”
MuckRock also pointed out that the four outliers are merely following the lead of Congress, which is exempt from the federal Freedom of Information Act. But that’s hardly an excuse. Let’s not forget that, in 2015, the Center for Public Integrity awarded Massachusetts an “F” for its miserable record of failing to provide public access to information.
The Legislature and Gov. Charlie Baker did approve an upgrade to the public records law in 2016. But though some progress was made in terms of fees and enforcement provisions, the loopholes remain. Indeed, not only is the Legislature exempt, but so is the judiciary. And a string of governors, including Baker, have claimed that they and their immediate staff also need not comply.
As Boston Globe investigative reporter Todd Wallack noted on Twitter earlier this week: “Massachusetts remains the only state where the courts, Legislature, and governor’s office all claim to be completely exempt from public records laws.”
Massachusetts remains the only state where the courts, Legislature, and governor's office all claim to be completely exempt from public records laws. https://t.co/ZbkKvQrEuo
Ambrogi said that, during negotiations over the 2016 bill, it was made clear to reform advocates that their efforts would be derailed if they targeted the legislative and gubernatorial exemptions. The bill did create a special legislators-only commission to study further changes — but that effort, according to Ambrogi, has barely gotten off the ground.
In testimony before the commission nearly two years ago, Ambrogi said, a coalition of advocates called for removing the exemption for the governor and for modifying the exemptions for the Legislature and the courts. He emphasized that the advocates have not asked that the legislative exemption be repealed in its entirety. Rather, he said, “we proposed subjecting certain legislative records to the public records law, such as financial reports, bills and resolutions, journals, certain internal memoranda, internal manuals and policies, meeting minutes, and more.”
In a recent point-counterpoint feature in The Boston Globe, Lawrence Friedman, a professor at the New England School of Law, defended the legislative exemption. “It is not difficult to imagine state representatives and senators censoring themselves out of concern that their words might be taken out of context,” Friedman wrote. “Perspectives about proposed laws and their implications could go unshared and, therefore, unconsidered.”
Yet 46 state legislatures somehow manage to conduct business without such secrecy provisions. As Friedman’s sparring partner, Justin Silverman, argued, “These types of records are used by community watchdogs, journalists, and concerned citizens throughout the country to keep their legislators accountable.” Silverman added that with the COVID-19 pandemic reducing access to government officials, being able to obtain records is more important than ever.
If state agencies, city councils, school committees and select boards can comply with the law, then so, too, can our legislators — and our governor and our court system as well. The law already contains a number of common-sense exceptions for such matters as protecting the secrecy of contract negotiations and, when warranted, the privacy of government employees.
There are a number of clichés you could invoke here — sunshine is the best disinfectant, the government works for us, the public’s business should be conducted in public, and the like. The bottom line, though, is that democratic self-government is impossible if our elected officials are shielded from having to tell us what they are saying and doing on our behalf.
The moment has come to bring this outrage to an end.
The following is a press release from the ACLU of Massachusetts.
BOSTON—In a pair of unanimous, bipartisan votes, the state House of Representatives and Senate today passed the first major reform of Massachusetts public records law in four decades, sending it to Governor Charlie Baker, who has 10 days to sign, veto, or let it become law without his signature. If signed into law by Governor Baker, the legislation would address widely criticized weaknesses in Massachusetts public records law, which make it hard for citizens to get information about how their government functions.
“This is a great day for open government,” said Carol Rose, executive director of the ACLU of Massachusetts. “We thank the House and the Senate for making public records reform a priority and for getting the job done. We also call on Governor Baker to do the right thing and sign the bill as soon as it reaches his desk.”
The bill would:
Set clear limits on how much money government agencies can charge for public records;
Set reasonable time frames for responses to public records requests;
Allow municipalities to request additional time for compliance and the ability to charge higher fees to cover reasonable costs;
Strengthen enforcement of the law by giving courts the ability to award attorney fees to those wrongly denied access to public records.
The Massachusetts Freedom of Information Alliance—a coalition of open-government groups—praised the House and its leadership for making transparency a significant legislative priority. The coalition urged Governor Charlie Baker to sign the legislation without delay and usher in a new era of openness in Massachusetts state government.
“A strong public records law is critical to democracy and our ability as citizens to hold government accountable,” said Pam Wilmot, executive director of Common Cause Massachusetts. “With today’s vote, the House and the Senate made a significant commitment to transparency and freedom of information, improving open government, and moving our state a huge step forward from near last in the nation. This reform is long overdue and we hope the Governor will sign it without delay.”
In November, the Center for Public Integrity released a report that gave the Commonwealth an “F” grade on public access to government information for the second time in a row. Dozens of organizations have advocated for comprehensive public records law reform, arguing that the law is among the weakest in the country and needs updating for the digital age. State lawmakers made their last substantive amendment to the law in 1973.
“This bill represents a significant step forward for transparency in Massachusetts,” said Bob Ambrogi, executive director of the Massachusetts Newspaper Publishers Association. “It will do a lot to improve access to public records. We hope and expect Governor Baker will prove himself to be a transparency-minded Governor by signing it into law.”
“Massachusetts residents deserve a stronger public records law, and this bill offers many improvements. We look forward to the governor signing it into law and providing more opportunity to hold government officials accountable,” said Justin Silverman, executive director of the New England First Amendment Coalition.
The pending legislation advanced earlier in the week when a conference committee of six legislators reconciled earlier versions passed by the House and Senate. The bill passed by the House and Senate today includes provisions designed to reduce the cost of obtaining public records and ensure timely responses to information requests. In addition, by allowing courts to award attorney fees to those wrongly denied access to public information, the bill would bring Massachusetts into line with 47 other states. The new law would not make such fee awards mandatory, but would establish a presumption in favor of covering requesters’ legal costs when courts find the law has been violated. The bill also includes safety-valve mechanisms to enable municipalities to get extensions on compliance deadlines and to receive reasonable compensation when dealing with particularly complex, time-consuming requests.
The following statement was released Monday by the Massachusetts Freedom of Information Alliance.
The Massachusetts Freedom of Information Alliance, a network of more than 40 groups committed to reforming the state public records law, today commended Gov. Charlie Baker for issuing guidance to improve state executive agencies’ handling of requests for information, but emphasized that significant changes to the law itself are still needed to achieve broad, enforceable access to public information throughout the Commonwealth.
Responding to widespread criticism that the Massachusetts public records law is among the weakest in the country and routinely flouted by public officials, Baker last Thursday issued a memorandum to cabinet secretaries providing guidance on how to “reduce delays and costs that burden accessibility.” The memo directs agencies to designate a records access officer to help streamline requests, to standardize fees for copying and staff time, and to set expectations for agency response time. The guidance applies only to state executive agencies, not municipalities, independent agencies, or other entities subject to the public records law.
MassFOIA commended the governor’s action but simultaneously called for legislative reform.
“We applaud Gov. Baker for providing leadership and direction to improve access to public information,” said Justin Silverman, executive director of the New England First Amendment Coalition. “But even the best-intended administrative guidance is inherently limited. It doesn’t have the force of law and it won’t have any impact on access at the municipal level.”
“The governor deserves credit for taking this step,” said Gavi Wolfe, legislative counsel at the ACLU of Massachusetts, “but we also need legislation to fix the law itself and ensure real accountability. Otherwise, Massachusetts will keep getting failing grades and officials will continue to treat freedom of information as a suggestion instead of a public right.”
Several of the provisions outlined in Baker’s memo may increase timely and affordable access, but they set no firm deadlines for complying with requests or overall limits on the amount of money that agencies can charge to provide information the public has a right to obtain.
“Even under this guidance, agencies can — and in all probability will — continue to charge a fortune for requests that they perceive as complex,” said Robert J. Ambrogi, executive director of the Massachusetts Newspaper Publishers Association. “Time and again we’ve seen Massachusetts agencies demand huge fees when other states turn over the same information for a fraction of the cost. While this guidance is a step in the right direction, it won’t prevent abuses of the law.”
“One of the most important reforms is attorney’s fees for those wrongly denied public records, and that cannot be established by the governor,” said Pam Wilmot, executive director of Common Cause Massachusetts. “That takes legislation. We’re pushing for a vote on a strong comprehensive bill in the legislature in September.” Forty-seven other states provide attorney’s fees to hold officials accountable when they refuse to follow the law.
The state public records law grants the public the right to access information about government operations from the executive branch and municipalities, subject to certain exemptions. MassFOIA contends that the law is weak and needs updating for the digital age, having not been substantially amended since 1973.
In July, the legislature’s Joint Committee on State Administration and Regulatory Oversight gave the nod to a bill supported by MassFOIA, which is now before the House Committee on Ways and Means. Key provisions would update the law to reflect advances in technology, rationalize fees for obtaining public records by having them reflect actual costs, and provide attorneys’ fees when agencies unlawfully block access to public information. It would also help government officials fielding public records requests by allowing them additional time for compliance and the ability to ask for other accommodations in “exceptional circumstances.” Legislative leaders have indicated a desire to vote on public records reform legislation in the fall.
The proposed legislation aims to improve access to information the law already defines as a public record. It would not alter the scope of the public records law or make any changes to existing exemptions, including those for personal privacy, criminal investigations, personnel records and trade secrets. Rather it would modernize outmoded language in the law and strengthen procedures for compliance and enforcement.
Specifically, the legislation would:
Promote access to records in electronic form.
Direct agencies to assign a “records access officer” to streamline responses to public records requests.
Lower costs for requesters and limit charges for redacting documents to withhold information.
Require attorneys’ fees when access to public records is wrongly denied, creating an incentive for agencies to obey the law.
Extend the time for compliance from 10 to 15 days.
Allow record-keepers to obtain more time or the ability to charge special fees when responding to frequent or unusually large requests.
In case you missed it, Todd Wallack has a tremendous article in Sunday’s Boston Globe on our broken public-records system in Massachusetts.
Wallack begins with a killer anecdote: a $2.7 million price tag placed on Breathlyzer records a lawyer was seeking from the State Police. The lawyer, Thomas Workman of Taunton, says that other states charged him anywhere between nothing and $75.
“I was more disappointed than surprised,” Workman is quoted as saying. “I do work across the country, and I have more trouble trying to get information in Massachusetts than other places.” And oh, by the way: he never got the records he was seeking.
Right now is when you can make a difference, as I noted in a blog post reporting that the Massachusetts Municipal Association (MMA) is trying to derail reform. Rather than sending my legislators emails, I posted on their public Facebook pages. State Rep. Sean Garballey, D-Arlington, responded by telling me that he’s a co-sponsor of legislation that would significantly improve the law. I haven’t yet heard from state Sen. Pat Jehlen, D-Somerville, but will let you know if and when I do.
And this just in: Bob Ambrogi, a media lawyer who’s executive director of the Massachusetts Newspaper Publishers Association, sent out an email a few minutes ago warning that the MMA may have already succeeded, as a House session to vote on the reform legislation — now House 3665 — has been canceled. Let’s keep pushing. Ambrogi writes that “the bill may now be effectively killed.”
Not yet. Let’s keep pushing. Not sure who’s representing you on Beacon Hill? Just click here.
A serious attempt to reform the state’s broken public-records law — the shortcomings of which I described recently in the WGBH News Muzzle Awards — is on the verge of being derailed by the Massachusetts Municipal Association (MMA), according to advocates.
On Friday came word that the state Legislature was likely to pass the long-awaited reform bill, House 2772, according to The Boston Globe and State House News Service. The bill, though not perfect, includes key provisions to hit noncompliant government agencies with lawyers’ fees and to limit how much those agencies can charge for complying with public-records requests.
Now comes word that the municipal association, a lobbying group for the state’s cities and towns, is working to prevent final passage. Here is a statement sent out by the MMA in which the bill is denounced as an “unfunded mandate” that could be used to “harass” local officials.
The following is an email sent to me by Bob Ambrogi, executive director of the Massachusetts Newspaper Publishers Association.
Hi Folks,
It is do or die time for MassFOIA, because our public records bill, which was on the move, is now under aggressive attack.
As of yesterday, the plan was for a House vote on our public records bill next Weds, with a Senate vote the following week. Now, the MMA is fighting back with everything they have [a reference to the document linked above] and we need to do the same or the bill may be dead. In fact, it appears the House has cancelled their formal session for next week so our reform efforts are in mortal danger. If they kill the bill now, it will be all the more difficult to revive.
So, please:
1) Write to your members to get them to call or email their legislators. I’ve attached an email that Pam wrote to Common Cause members this morning. [Note: I have not included the attachment.]
2) Stay tuned as we develop materials over the weekend and early next week that you may need to sign onto — such as a coalition letter. We will need a quick turn around.
3) Keep your eyes open for updated talking points over the weekend.
Thanks for your support of this critical issue!
Best,
Gavi Wolfe, ACLU of Massachusetts
Pam Wilmot, Common Cause Massachusetts
Bob Ambrogi, MA Newspaper Publishers Association
Justin Silverman, New England First Amendment Coalition
The state’s weak public-records law has long needed to be reformed. A lack of meaningful penalties for government agencies that refuse to turn over public records, outrageous fees and other problems make Massachusetts a laggard when it comes to transparency. Several years ago the State Integrity Investigation awarded Massachusetts a richly deserved “F” on public access to information.
Last week brought mind-boggling news from Todd Wallack of The Boston Globe, who reported that Secretary of State William Galvin’s office has issued rulings allowing certain formerly public records to be suppressed, including arrest reports of police officers charged with drunken driving. (Galvin later turned around and called for an initiative petition to put some teeth in the public-records law. Make of that what you will.)
Now the Globe, the Boston Herald and GateHouse Media Massachusetts have editorialized in favor of significant reform. The Massachusetts Freedom of Information Alliance, a group comprising the New England First Amendment Coalition, the ACLU of Massachusetts, the Massachusetts Newspaper Publishers Association and others, is calling for immediate action.
Seventeen of my colleagues and I at Northeastern’s School of Journalism lent our voices to the cause this week with a letter that has been published in the Globe, the Herald and (so far) two GateHouse papers: The Patriot Ledger of Quincy and The Herald News of Fall River. Because the Globe and the Herald were unable to run everyone’s names, I am posting them here. They include full-time as well as adjunct faculty:
Dan Kennedy, interim director
Chris Amico
Mike Beaudet
Nicholas Daniloff (emeritus)
Charles Fountain
Carlene Hempel
Joy Horowitz
Jeff Howe
William Kirtz
Dina Kraft
Jean McMillan Lang
Laurel Leff
Gladys McKie
Lincoln McKie
Bill Mitchell
Tinker Ready
James Ross
Alan Schroeder
This is Sunshine Week, an annual celebration of open government. In Massachusetts it’s time to let the sun shine in.
It looks like we have our first WGBH News Muzzle Awards winner of 2015. Last night the Massachusetts Legislature passed Senate Bill 2334, which, as I wrote here yesterday, would block access to certain police records now open to the public.
The ostensible purpose is to protect victims of domestic violence, but as First Amendment lawyer Jeffrey Pyle tells David Scharfenberg of The Boston Globe, “Problems with the criminal justice system are rarely, if ever, solved by decreasing transparency.”
The bill had not come to a vote before Scharfenberg’s deadline, but Globe reporter Michael Levenson tweets that it’s now on its way to Gov. Deval Patrick’s desk — and that he’s likely to sign it.
By the way, Scharfenberg calls the bill “a little-noticed measure.” But the Massachusetts Newspaper Publishers Association flagged it months ago, and I brought it up on WGBH-TV’s “Beat the Press.” If this had gotten more attention early on, we might not find ourselves where we are today.
The Massachusetts Legislature may vote later today on Senate Bill 2334, which would block access to certain police records now open to the public. The people’s business should be done in the open, and legislators should vote no. I’ve already emailed my representative and senator. It’s easy enough to do, and I urge you to click here.
Bill Advances to Block Access to Police Reports and Logs
Could Result in Protecting Perpetrators from Disclosure
A legislative conference committee yesterday issued a report (SB 2334) that will close police reports and logs now open to the public. The bill is likely to be voted on today. I urge you to contact your legislators and register your opposition to this language.
Currently, G.L. c. 41, s. 97D provides that reports of rape and sexual assault are not public. This bill would add to that list “reports of abuse perpetrated by family or household members.”
Also, the bill would amend G.L. c. 41, s. 98F, to exempt from public view two categories of information from police logs:
Any information concerning responses to reports of domestic violence, rape or sexual assault.
Any entry concerning the arrest of a person for assault, assault and battery or violation of a protective order where the victim is a family or household member, as defined in section 1 of chapter 209A.
As we have noted before, closing police logs could have the unintended consequence of shielding perpetrators from public disclosure — even when the perpetrators are public officials or others in positions of trust or authority.
One example, described in this Boston Globe article, was the 2012 arrest of Waltham’s police chief on domestic assault charges. Had this law been in effect, his arrest would have been shielded from the public.
Robert Ambrogi, Executive Director
Massachusetts Newspaper Publishers Association
Wornick, of WCVB-TV (Channel 5), recounted her ordeal of being almost jailed in the mid-1980s for refusing to reveal her confidential source to police and a grand jury investigating alleged corruption by Revere police. “I made this promise because this man had important information. Without his information, I could not have told the story, and law enforcement could not have done their jobs.”
“I was terrified,” Wornick recalled, but she said she received widespread public support for her courage in protecting her source. “People were infuriated that I was being harassed and demonized by law enforcement because I wouldn’t break my promise.” Ultimately the source identified himself in order to save Wornick from jail time. It was big news at the time; she received a standing ovation from a packed Boston Garden when she was introduced to the crowd at a Celtics game.
Susan Wornick
“We need a shield law in Massachusetts to that journalists can do their jobs,” she said. “Anonymous sources are crucial” to journalists — we all know that.”
Media lawyer Jonathan M. Albano followed. When he started working in this legal area in 1982, the most recent case on the subject was In re Roche, two years earlier, in which the Supreme Judicial Court noted that it might be beneficial if Massachusetts law provided reporters “more clearly defined protection against intrusive discovery” than existed under the common law balancing test then (and now) in force. With clearer standards in place, “news reporters and sources might be able to base their behavior on better defined expectations, thus encouraging informed expression,” the court wrote then.
“It has been 32 years since that case and there are still no definite rules in place to guide reporters,” said Albano, managing partner of Bingham McCutchen’s Boston office. “Today, whether a source will be protected, and whether a reporter will be required to testify about that source, depends on which judge you draw,” and that judge’s exercise of her or his discretion, he said.
Pyle, appearing on behalf of the New England Newspaper and Press Association (with 230 Massachusetts daily and weekly newspaper members), then described the provisions of the proposed shield law. “The bill provides much-needed clarity that would protect the future Susan Wornicks of the world,” he told the filled hearing room.
As Jeff explained, the proposed law would apply to “covered persons,” those working for “news media” and who prepared the information at issue in that capacity. “News media,” in turn, is defined to include not only mainstream and student media but also “any entity that is in the regular business of gathering and disseminating news or information to the public by any means….”
The bill offers a near-absolute privilege as to disclosure of information identifying any news source (whether confidential or not), subject only to an exception where necessary “to prevent imminent and actual harm to public security from acts of terrorism,” in which case disclosure may be compelled if disclosure of the source’s identify “would prevent such harm” and if “the harm sought to be redressed by requiring disclosure clearly outweighs the public interest in protecting the free flow of information.”
The bill offers a qualified privilege as to unpublished information, the disclosure of which may be compelled only if a court finds, after notice and hearing, that there is “clear and convincing evidence” establishing that (1) the information is “critical and necessary to the resolution of a significant legal issue” before a governmental entity, (2) the information “could not be obtained by any alternative means” and (3) “there is an overriding public interest in the disclosure.”
Jim Taricani
Jeff reminded the committee of Providence television reporter Jim Taricani’s four months of home confinement in Rhode Island for defying a court order to reveal a source; James Risen’s ongoing battle to protect his source for national security secrets published in his 2006 book about the CIA; and Fox News reporter Jana Winter’s battle to protect a confidential source for her story about the notebook that James Holmes sent to his psychiatrist, previewing the shooting spree that resulted in the death of 12 moviegoers in Aurora, Colo. “In the absence of a shield law,” he said, “Massachusetts reporters face a real and imminent threat of going to jail” simply for doing their jobs.
Speaking for the Massachusetts Newspaper Publishers Association, attorney Peter J. Caruso Sr. told legislators that the bill offered them “the opportunity to provide courts, prosecutors, and litigants with “direction and clarity” as to the information that can be obtained from reporters.
Rep. Cutler, himself a former third-generation newspaper editor, assured his fellow legislators about what the proposed law is not: “It is not about protecting journalists — it’s about protecting journalism,” he said. It’s not the creation of a new evidentiary privilege, but rather the codification of an existing common law privilege. It’s not a “roadblock” to district attorneys, but rather “a road map setting forth the rules.” It’s “not a new, unproven legal theory,” but rather a piece of legislation already in place, to a greater or lesser extent, in 40 states. And it’s “not about helping media conglomerates,” but rather about “protecting the little guy,” including the small-town newspapers for whom even the “mere threat of a subpoena can have a chilling effect.”
When the floor was opened to questions, Rep. Markey, who worked for 15 years as a prosecutor in the Bristol County district attorney’s office, vigorously challenged the shield law advocates. He objected that the proposed law would deprive prosecutors of an important investigative and prosecutorial tool. He also lamented that as to identification of sources, the law would provide an undifferentiated privilege for reporters, the applicability of which would not vary based on the level of public importance of the issue about which information is sought. Markey said he believed the law would shift control of criminal investigations from prosecutors to journalists: “You’re putting the burden on government to show there are no alternatives” before seeking testimony from a reporter, such that a “journalist who hasn’t taken an oath is now the only person who has that knowledge” about certain criminal activity.
Albano disagreed, reminding Markey, “The journalist does not decide, the judge decides.” Markey retorted that the “clear and convincing evidence standard” to be met by those seeking a reporter’s testimony would prove a difficult hurdle to surmount. He ended with an emotional appeal, saying he is concerned about the law’s impact on “a 39-year-old mother who has a 19-year-old son who has been shot, and who is going to a wake that night,“ and who wants the police to do all they can to find her son’s killer. “You’re telling the police, ‘Go to everyone else, but don’t go to [the reporter]. “
Legal advertising has been a mainstay of the press since Colonial times. Official announcements of bids for government work, auctions and the like bring in a lot of revenue, and there were papers that were literally founded in order to be paid for publishing public notices.
