The Reporter’s Privilege Goes Incognito in Wisconsin

Few professional groups in our society are less popular than journalists, so it’s a rare occasion when legislators – obsessed as they are with reelection – take actions specifically designed to help the press.

The Wisconsin Legislature showed some of that political bravery this month when it passed the state’s first reporter’s shield law (although some members still seem a little sheepish about it). The new statute, signed into law by Gov. Jim Doyle on May 20, gives “news persons” protection from certain subpoenas seeking their testimony, work products or confidential information, including the identities of their unnamed sources.

Journalists have been fighting for these statutory protections since 1972 when the U.S. Supreme Court refused to recognize a First Amendment reporter’s privilege in Branzburg v. Hayes. Wisconsin is now the 39th state to have responded by adopting concrete statutory protections for journalists.

As anchorman Ron Burgundy might say, this is kind of a big deal. But so far the response has been muted: no significant news coverage, no pubic outcry, no dancing in the streets.

There are a couple of reasons for this. One is that the new statute is not quite revolutionary, because Wisconsin courts are already reasonably attentive to reporters’ newsgathering rights, having recognized some protections under both the state and federal constitutions.

The other reason is that supporters of the new law have deliberately flown it under the radar and have presented more as a boon for citizen-watchdogs than reporters. As Sen. Pat Kreitlow insisted, the new law is “not about protecting the journalists so much as protecting the whistleblowers and their ability to come forward without the fear.”

Supporters of the law have also tried to recast it as a generic public-accountability law by calling it the Whistleblower Protection Act, even though its substantive provisions are parallel to those of most reporter shield laws.

The Milwaukee Journal-Sentinel reinforced this perception by describing the law as a shield for “[j]ournalists and whistleblowers who dig up waste, fraud and abuse.”

There are several problems with all of these characterizations.

First, the Journal-Sentinel description is misleading because it implies that the protection is reserved for people who are attempting to expose institutional graft. But there are no motivation-based triggers in the law. The strength of the protection depends more on the substantiality of the subpoenaing party’s need for the information than on the purposes or public value of the source’s disclosures.

Second, the name of the law seems like an artifice. The Whistleblower Protection Act does not protect whistleblowers; it protects reporters. It gives reporters the legal leverage they need to withhold confidential-source information, if they so choose. Nothing in the law compels them to protect their sources.

To some extent this is a distinction without a difference. Whistleblowers will certainly be empowered by this law, even if the protections flow to them indirectly. But they cannot invoke the law independently, so the name and all of these associated characterizations could give whistleblowers a false sense of security.

Third, much of the discussion about the law ignores the fact that it protects reporters even in the absence of a confidential source. The whistleblower law provides qualified protection for reporters when subpoenaed for nonconfidential information (e.g., notes, digital files, outtakes).

This is critical, because 90 percent of the subpoenas received by media organizations do not seek confidential information. This also illustrates that there is a macro purpose to the law, which is to preserve the strong, presumptive separation between the press and government and to guard against harassment, intimidation and the risk that reporters could effectively be turned into government investigators. All of those risks are present whether a subpoena seeks confidential information or not.

By framing the law as a protection for sources rather than reporters, proponents encourage people to view the law (and the reporter’s privilege generally) as a narrow, utilitarian device for eliciting leaks rather than a broader and more principled means of preserving the autonomy of the press.

This erodes and truncates the theoretical foundation for the privilege, leading lawmakers to favor more circumscribed shield laws – like the federal version being considered in the U.S. Senate, which is entirely focused on confidentiality – and leading judges to discount the need for rigorous scrutiny of nonconfidential subpoenas.

Despite these quibbles, the supporters of the new law should be commended. This statute will add an additional layer of protection for the state’s journalists, it will bring additional clarity to the law, and it will ultimately expand and quicken the free flow of information in the state.

I would just like to see more of an effort by journalists, judges and lawmakers to frame the privilege as an essential feature of our constitutional design rather than a simple and narrowly applicable policy preference. And I would like to see people start calling the law what it is instead of resorting to politically safe euphemisms.

This Post Has One Comment

  1. Gordon Hylton

    I agree that a shield law for journalists is a good idea. However, I can understand why the broad claim that the First Amendment immunizes journalists from the legal process is politically problematic at this time.

    On a somewhat picayune note, you may be exaggerating the low regard in which journalists are held. According to the Gallop website, public opinion polls show that when it comes to honesty and ethics, journalists, while not necessarily very popular, still rank ahead of bankers, governors, lawyers, business executives, advertising practitioners, Senators, insurance salesmen, Members of Congress, stock brokers, and HMO managers.

    In spite of everything that has happened in the past two years, automobile salesman still rank last in terms of honesty and ethical standards.

    My hunch is that there will be no shield laws any time soon for any profession ranked below journalists.

    Incidentally, nurses are the most highly regarded professionals, followed by druggists, doctors, policemen, engineers, dentists, and college professors.

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