We recently made the case in this space that now more than ever, America needs independent, honest, hard-hitting journalism to keep the public informed and hold government accountable, and that the public has a key role to play in supporting that endeavor.
The moment is at hand for Vermonters, through their elected representatives, to demonstrate that they indeed assign great value to aggressive reporting that does not pull its punches. The Legislature is considering a bill that would afford significant legal protections to journalists in the course of their work. Over the years, we have been skeptical of so-called “shield laws” such as the one now pending in Vermont, preferring to rely solely on the First Amendment’s guarantee of freedom of the press. Times have changed, and so has our opinion. Good journalism is under siege across the land.
The exact contours of the Vermont bill are still being shaped, but as of this writing, the shield would protect journalists from being compelled to disclose by subpoena the confidential source of information that was obtained during news-gathering. Moreover, any unpublished information, even if not obtained in confidence, would be similarly privileged, meaning that notes, recordings, photographs and the like would not be subject to compelled disclosure. It’s important to note that this privilege would not be unqualified: A court could compel disclosure of protected information — but not the source of it — if it finds clear and convincing evidence that the information is highly relevant to a significant legal issue, that it could not be obtained by other means and that an overriding public interest in disclosure exists.
Why does this matter? Because journalists cannot fulfill their role as independent guardians of the public interest if they are perceived to be an information-gathering arm of state authorities. Journalists have no power to obtain facts by issuing their own subpoenas; they have only the power of persuasion and a reputation for good faith to rely on in eliciting news from often-reluctant sources. Those sources would dry up in a minute if reporters were routinely hauled into court to give evidence. Moreover, whistleblowers who expose wrongdoing often rightly fear retribution and insist on anonymity as a condition of speaking with reporters. Protecting those sources from disclosure is also unquestionably in the public interest.
The scenario of legal compulsion is not fanciful. A former colleague of ours, Mark Davis, was among four journalists subpoenaed in 2015 in connection with the sexual-assault trial of then-state Sen. Norm McAllister. At issue in his case was a story that he wrote for his current employer, the alternative weekly Seven Days, for which he interviewed the defendant at his farm in Highgate, Vt. The prosecution sought testimony and documentary evidence from Davis about statements McAllister made to him.
A moment’s reflection should serve to clarify why this endangers the journalistic enterprise. McAllister was a well-known public figure involved in a high-profile criminal case who denied the charges against him. Davis sought out McAllister to get the defendant’s side of a story that had already been told publicly and in great detail to his detriment by the authorities. That’s called fairness, and it’s one of the core beliefs to which principled journalists are committed. If people charged with crimes thought journalists seeking to interview them would subsequently be forced to testify against them, they would naturally decline. The result? The public would be exposed to only one version of contested events before trial, to the detriment of the presumption of innocence.
In the end, the trial judge denied Seven Days’ motion to quash Davis’ subpoena, employing a balancing test much like the one that would be adopted in the proposed shield law. We disagreed with that outcome, especially given that authorities are not supposed to bring charges against defendants unless they believe they have enough evidence to obtain a conviction. The claim that Davis’ notes and testimony, obtained weeks after charges were filed, were vital to the prosecution’s case has the flavor of a fishing expedition parading in the guise of official necessity.
Nonetheless, we see significant value in codifying this balancing test for compelled disclosure so that everyone knows where journalists stand in relation to the law and to their other obligations. And if it had been law at the time, the subpoenas for the other journalists probably would not even have been issued by a conscientious prosecutor, given that the information sought was obtainable elsewhere. Ultimately, an agreement was reached under which the parties would stipulate to the accuracy of Davis’ story and he would not have to testify. In the end, the state’s case fell apart on unrelated grounds, and the issue was moot. But the threat was real.