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No Comments [ Add Comment ]Journalistic protection in Utah taking on water
By Allison Barlow HessThe recen
tly released book "Mayflower," which recounts the Pilgrims' arrival in Plymouth, might have had a different name if the Puritans hadn't been duped by an unscrupulous ship captain who sold them a vessel ironically named Speedwell. The ship's master, Reynolds, purposely rigged the ship's masts so the "excess strain opened up the seams between the planks, causing the hull to leak." By "overmasting" the Speedwell, Reynolds had provided himself with an easy way to deceive this fanatical group of landlubbers.
The Puritans couldn't bail fast enough. They abandoned the ship, lost their money and eventually bought the Mayflower. The duplicitous captain slowed their voyage by more than a month at the eventual cost of many lives. Once the ship's masts were refitted, the vessel "made many voyages to the great profit of her owners."
The Utah Supreme Court now has before its consideration Rule 509, a news reporter's privilege, comparable in many ways to the Speedwell. From outward appearance, the rule seems sound, but, unfortunately, six exemptions create holes that effectively sink the entire thing.
Utah is one of only three states in the nation currently operating without any protection whatsoever for reporters' sources or information. For the past year and a half the Supreme Court Advisory Committee on the Rules of Evidence has looked at how the judicial branch should handle reporters' information. Following their work, the committee ostensibly created an absolute privilege for reporters, which would protect journalists from revealing sources or information to anyone at anytime, including the courts.
However, the committee then "overmasted" the privilege and opened up the seams between the planks with sweeping exemptions, notably a lack of protection for unpublished, nonconfidential material and sources, and no protection for information that a prosecutor claims may be "classified" or "protected" by the government.
Abraham Lincoln said, "Let the country know the facts, and the nation will be safe." And many important facts have been learned using documents the government would have preferred remained classified.
"We know about prisons that have been maintained in the name of our government around the world, and found out about it thanks to journalists at the Washington Post and the New York Times," said the national president of the Society of Professional Journalists, Christine Tatum, who visited Utah recently. "When we understand a little bit more about the handling of certain records, wiretapping, banking analysis, firing of prosecutors, when we stop to think about all the things that are happening, we know there are facts that need to be known and people are risking a lot to be able to share them and publicize them for the health of our democracy."
Rule 509 doesn't just deal with publicized material. Under the exemptions, unpublished material is fair game for prosecutors -- including video outtakes, transcripts of conversations, reporters' phone logs and e-mails.
"It's such an imprecise request to say, 'I want all of your notes about XYZ' because there's so much information in my notes," Tatum said. "I can think of many times when it was not germane to my story that a source was struggling with alcoholism or depression. That doesn't mean the information isn't sitting in my notebook. Once my notes go into the public record, there's nothing I can do to save a person from public embarrassment. If people don't perceive a journalist as a secret keeper, as a holder of confidence, the freeze on our conversations would be immediate."
Most journalists in Utah support a proposal set forth by a minority on the judicial committee. This proposal supports a balancing test outlined in 1972 by the Supreme Court and allows a judge to determine what a reporter must reveal. Using the test, the judge considers whether the material could be obtained elsewhere, whether the information is central to the case and whether it would be admissible in a court of law.
"If a prosecutor can't meet the balancing test, the material is protected, reporters don't have to turn it over," said Jeff Hunt, who represents Utah media on this issue. "You don't want to give anybody with subpoena power the ability to just troll through your files whenever they think it would be an easy way to get information to help them in their case."
The Puritans didn't let a leaky hull stop them in their quest to sail to a new land ripe with the promise of prosperity and civil liberties; reporters, too, will continue their quest to provide the information necessary for a free and unfettered exchange of ideas. But for both groups it's a much easier voyage without a leaky hull.
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