Utah courts join in protecting confidential sources

By Nathan Laursen

February 27, 2008 | Utah journalists and their confidential sources were granted some of the strongest protections and privileges in the nation when the Utah Supreme Court approved and signed a comprehensive shield rule in January.

After two periods of public comment, and over three years of campaigning and drafting by a coalition of media groups and a court advisory committee, Rule 509 of the Utah Rules of Evidence was adopted.The shield rule defines what a news reporter is and protects them from being required to divulge their confidential sources, outtakes, or eyewitness reports when they are subpoenaed.

"The end result is very gratifying," said Jeff Hunt, an attorney for the Utah Media Coalition. "It provides near-absolute protection for confidential sources."

The only exception to the shield rule is in situations where disclosure is necessary to prevent death or substantial injury Hunt said.

Many of the posted public comments protested the rule and similar laws have been intensely debated because people feel shield laws give news reporters too much protection to withhold crucial information and interfere with investigations and criminal trials. Others claim such rules are necessary in order for a free press to function, and that whistle-blowers are less likely to come forward with information of corruption and abuse if not under the umbrella of anonymity.

"This is not an absolute. There are times when disclosure may be necessary, and the rule states those times," said Ben Winslow, president of the Utah Headliners Chapter of the Society of Professional Journalists and reporter for the Deseret Morning News, in his comments on the Utah State Courts website. "This does not place journalists above the law, but ensures that the press can be a check and balance to government, and a watchdog for our society."

Others on the court website protested the rule because it usurps authority that belongs to the Utah State Legislature and should have gone through the legislative process.

Legislation for a shield law was proposed in 2005 when Hunt and other media attorneys joined with Utah Attorney General Mark Shurtleff, but was dropped in favor of a judicial rule that could be more efficiently adopted by the state Supreme Court. According to the Evidence Advisory Committee Note on the rule, the new rule gives a broad definition of "news reporter" in order to "accommodate the ever-changing methods of expression and publication."

Under the rule, journalists can still be subpoenaed to appear in court, and anyone seeking information from news reporters can ask a judge to review the information privately and determine if it should or should not be disclosed. The rule gives judges a four part test in order to determine if a subpoena should be nullified. In the past judges relied on former cases and federal rulings when making decisions.

The new rule only applies to state courts and is not binding to federal courts of Utah.Similar reporter privilege protections already exist in 47 other states and the District of Columbia, and Congress is currently considering a federal shield law that has passed in the House and has been placed on the calendar of the Senate.

In a statement the day the rule was adopted Attorney General Shurtleff praised the decision, calling it "a banner day for the First Amendment in Utah."

MS
MS