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Utah high court adopts broad privilege for reporters

By The Associated Press
01.25.08

SALT LAKE CITY — The Utah Supreme Court has adopted a rule that allows reporters to refuse to identify confidential sources if called to testify in court, a protection described as one of the most sweeping in the country.

"It provides near-absolute protection for confidential sources," Jeff Hunt, an attorney for a Utah media coalition, said yesterday.

The only exception to the shield rule would be in cases where the information could prevent substantial injury or death, he said.

The rule also protects non-confidential, unpublished information — notes, photographs and videotape — collected in the reporting process.

"Hopefully it will give sources and whistleblowers the confidence to come forward to provide information (that's) important for the public to receive," Hunt said.

"Without some protection for news sources, a lot of very important stories would not get done," he said.

The Supreme Court approved the rule on Jan. 23, a day after a public-comment period expired. It will take effect with the signature of Chief Justice Christine Durham, said Rick Schwermer, assistant state court administrator.

Reporters still can be subpoenaed to appear in court. And anyone seeking information can also ask a judge to privately review it to determine if it should be disclosed, although a judge can decline.

More than 30 states and the District of Columbia have some type of shield law or rule, according to the Reporters Committee for Freedom of the Press in Arlington, Va.

Before the rule, Utah reporters could offer confidentiality but risked being sent to jail in order to keep the promise.

In 2005, Hunt and other media attorneys joined forces with Utah Attorney General Mark Shurtleff to pursue a shield law. Legislation was proposed but dropped in favor of a judicial rule that could be adopted by the Supreme Court.

Attorneys worked with the court's Evidence Advisory Committee to settle on a draft that balanced the public's interest with the state's interest in investigating wrongdoing or crimes.

For state courts, the rule provides "clear direction from the Supreme Court about how to weigh the policy issues involved in these types of cases," Schwermer said.

Judges in the past were forced to look at other cases and federal rulings when making decisions.

"None of those rulings were really binding on other courts, so we never had any assurances," said Mike O'Brien, a media attorney who helped draft the rule.

The new rule does not cover conflicts between authorities and the news media in federal court in Utah.

"It's very strong. I think it puts you probably in the top 10," said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press.

Paul Boyden, executive director of Utah's Statewide Association of Prosecutors, said some prosecutors balked at the idea of granting a reporter's shield, but at the same time understood how important confidential sources can be.

"We have at least as many confidential sources as reporters," said Boyden, who called the final rule "a good compromise.”

"It's a reasonable balancing of interests," he said. "It's going to be very rare that we will be able to pierce that privilege."

Shield rules frequently are opposed by prosecutors who claim they block the ability to solve some crimes, Dalglish said.

"Those folks who have lived in states with vibrant shield laws for a very long time can tell you this really does not cause them to not be able to prosecute," she said.

In a statement, Shurtleff praised the Supreme Court's decision, calling it "a banner day for the First Amendment in Utah."


Previous
Utah high court drafts journalist shield law
Proposal would make it difficult for lawyers, judges to force news reporters to reveal confidential sources. 12.15.07

Related

Hawaii mulls enacting reporter shield law

State lawmakers are considering several bills that would protect reporters from being forced to reveal confidential sources, notes and recordings. 02.01.08

Ariz. TV station didn't waive rights under shield law, court finds
State appeals panel rejects tire company's bid to learn source of records used in news report on automobile safety, saying to rule otherwise would chill free flow of information to public. 03.27.08

State shield statutes & leading cases
By Bill Kenworthy State-by-state compilation of journalist-shield statutes, cases. 10.17.05

Journalist ‘shield’ – balancing openness, security
By Gene Policinski Under a Senate bill, journalists would be protected from having to reveal confidential sources — but not if they witnessed a crime or if there were an imminent threat to life or national security. 10.07.07

Shield laws


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