While press and public are one in the same in the right of access to their government, judges and lawmakers historically have recognized the need for certain reporting privileges if journalists are to fulfill their mission. One is limited immunity from being summoned to court to testify about sources and provide information available by other means.
In South Carolina, the General Assembly in the 1990s passed a shield law. It grants news organizations limited protection against orders to testify and turn over information in cases about which they have reported. The law remains important.
As researchers and investigators in their own right, reporters gather information pertaining to many incidents that end up in the court system. To routinely compel reporters to come forward with that information excuses the legal community from doing its homework and endangers the media's ability to gather information.
If you speak to a reporter and he or she promises that something you say will not be published, the promise is to be upheld. If it's not, among the least of your actions is a vow never to speak with the reporter again.
If the reporter is compelled to testify in court about something to which your interview relates, you might expect only what is printed as public record to be the subject of questioning. Yet if a reporter is on the stand, the questions and cross-examination are likely to go far beyond.
If the reporter states he or she will not answer questions beyond what is included in a published story, that could subject the reporter to a contempt-of-court charge and jail.
In endorsing the S.C. shield law, the late Sen. Marshall B. Williams of Orangeburg and other lawmakers understood the practical nature of the problem: Compelling reporters to testify in most instances compromises the nature of what journalists do. Sources simply won't be sources anymore.
At the same time, lawmakers understood, as do journalists, there are some instances in which providing information is crucial, with the state shield law setting parameters.
A reporter cannot be compelled to testify unless the privilege granted under the law is knowingly waived or the person seeking the information or testimony "establishes by clear and convincing evidence" that such is:
• Relevant to the controversy.
• Cannot be reasonably obtained by alternative means.
• Is essential to the "proper preparation or presentation of the case.”
While South Carolina has a shield law, there is no such law on the federal level., though there has been a push for federal shield law for years.
Lawmakers are trying again, introducing the Protect Reporters from Excessive State Suppression (PRESS) Act. It would establish reasonable ground rules for when the government can obtain confidential source information from the media and their third-party service providers.
Whether it is the mistreatment of soldiers at Walter Reed Army Medical Center, safety problems at nuclear power plants, or reporting on the government’s secret and warrantless wiretapping program, groundbreaking stories would remain unknown – both to the public and to Congress – without information gathered from confidential sources by investigative journalists.
The legislation would prevent government overreach in obtaining information that would expose sources and jeopardize the public’s right to know, while at the same time enabling law enforcement officials to get the information they need to investigate and prosecute crimes to keep the nation secure.
News Media Alliance President and CEO David Chavern said, “Our nation’s history has shown that confidential sources are often crucial to helping journalists shed light on important public matters critical to a strong democracy.”
Approval of a federal shield law of the type that exists in South Carolina — which establishes standards for when disclosure will be required and ensures it is not ordered in most instances — is in the interest of every American.