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Rob BertscheRobert A. Bertsche, partner, Prince Lobel Tye, LLP

BOSTON – I attended the spirited hearing at the State House on the proposed Massachusetts shield bill, before the Legislature’s Joint Committee on the Judiciary.  The bill is titled the “Free Flow of Information Act,” H.1553, described as “An Act providing against compelled disclosure of certain information by the news media.”  Here’s a quick account of Wednesday’s proceedings.

Bottom line: Passage is far from assured, but the bill got its most thorough airing in years.  Longtime Boston news anchor and reporter Susan Wornick spoke passionately in favor of the bill, backed up by three media lawyers (including my partner, media lawyer Jeffrey J. Pyle) and Rep. Josh S. Cutler (D-Duxbury), one of the bill’s sponsors.  The Committee’s House Vice Chair, Rep. Christopher M. Markey (D-Dartmouth), was most outspoken in opposition.

Wornick, of WCVB-TV Channel 5, recounted her ordeal of being almost jailed in the mid-1980s for refusing to reveal her confidential source to police and a grand jury investigating alleged corruption by Revere police.  “I made this promise because this man had important information.  Without his information, I could not have told the story, and law enforcement could not have done their jobs.”

“I was terrified,” Wornick recalled, but she said she received widespread public support for her courage in protecting her source.  “People were infuriated that I was being harassed and demonized by law enforcement because I wouldn’t break my promise.”  Ultimately the source identified himself in order to save Wornick from jail time.  It was big news at the time; she received a standing ovation from a packed Boston Garden when she was introduced to the crowd at a Celtics game.

“We need a shield law in Massachusetts to that journalists can do their jobs,” she said. “Anonymous sources are crucial” to journalists – “we all know that.”

Media lawyer Jonathan M. Albano followed.  When he started working in this legal area in 1982, the most recent case on the subject was In re Roche, two years earlier, in which the Supreme Judicial Court noted that it might be beneficial if Massachusetts law provided reporters “more clearly defined protection against intrusive discovery” than existed under the common law balancing test then (and now) in force.  With clearer standards in place, “news reporters and sources might be able to base their behavior on better defined expectations, thus encouraging informed expression,” the court wrote then.

“It has been 32 years since that case and there are still no definite rules in place to guide reporters,” said Albano, managing partner of Bingham McCutchen’s Boston office.  “Today, whether a source will be protected, and whether a reporter will be required to testify about that source, depends on which judge you draw,” and that judge’s exercise of her or his discretion, he said.

Prince Lobel partner Jeffrey J. Pyle, appearing on behalf of the New England Newspaper and Press Association (with 230 Massachusetts daily and weekly newspaper members), then described the provisions of the proposed shield law.  “The bill provides much-needed clarity that would protect the future Susan Wornicks of the world,” he told the filled hearing room.

As Jeff explained, the proposed law would apply to “covered persons,” those working for “news media” and who prepared the information at issue in that capacity.   “News media,” in turn, is defined to include not only mainstream and student media but also “any entity that is in the regular business of gathering and disseminating news or information to the public by any means….”

The bill offers a near- absolute privilege as to disclosure of information identifying any news source (whether confidential or not), subject only to an exception where necessary “to prevent imminent and actual harm to public security from acts of terrorism,” in which case disclosure may be compelled if disclosure of the source’s identify “would prevent such harm” and if “the harm sought to be redressed by requiring disclosure clearly outweighs the public interest in protecting the free flow of information.”

The bill offers a qualified privilege as to unpublished information, the disclosure of which may be compelled only if a court finds, after notice and hearing, that there is “clear and convincing evidence” establishing that (1) the information is “critical and necessary to the resolution of a significant legal issue” before a governmental entity, (2) the information “could not be obtained by any alternative means,” and (3) “there is an overriding public interest in the disclosure.”

Jeff reminded the committee of Providence television reporter Jim Taricani’s four months of home confinement in Rhode Island for defying a court order to reveal a source;  James Risen’s ongoing battle to protect his source for national security secrets published in his 2006 book about the CIA; and Fox News reporter Jana Winter’s battle to protect a confidential source for her story about the notebook that James Holmes sent to his psychiatrist, previewing the shooting spree that resulted in the death of 12 moviegoers in Aurora, Colorado.     “In the absence of a shield law,” he said, “Massachusetts reporters face a real and imminent threat of going to jail” simply for doing their jobs.

Speaking for the Massachusetts Newspaper Publishers Association, attorney Peter J. Caruso, Sr. told  legislators that the bill offered them “the opportunity to provide courts, prosecutors, and litigants with “direction and clarity” as to the information that can be obtained from reporters.

State Rep. Josh Cutler, himself a former third-generation newspaper editor, assured his fellow legislators about what the proposed law is not:  “It is not about protecting journalists – it’s about protecting journalism,” he said. It’s not the creation of a new evidentiary privilege, but rather the codification of an existing common law privilege.  It’s not a “roadblock” to district attorneys, but rather “a road map setting forth the rules.”  It’s “not a new, unproven legal theory,” but rather a piece of legislation already in place, to a greater or lesser extent, in 40 states.  And it’s “not about helping media conglomerates,” but rather about “protecting the little guy,” including the small-town newspapers for whom even the “mere threat of a subpoena can have a chilling effect.”

When the floor was opened to questions, State Rep. Christopher M. Markey, who worked for 15 years as a  prosecutor in the Bristol County District Attorney’s office, vigorously challenged the shield law advocates.  He objected that the proposed law would deprive prosecutors of an important investigative and prosecutorial tool.  He also lamented that as to identification of sources, the law would provide an undifferentiated privilege for reporters, the applicability of which would not vary based on the level of public importance of the issue about which information is sough t.  Markey said he believed the law would shift control of criminal investigations from prosecutors to journalists: “You’re putting the burden on government to show there are no alternatives” before seeking testimony from a reporter, such that a “journalist who hasn’t taken an oath is now the only person who has that knowledge” about certain criminal activity.

Albano disagreed, reminding Markey, “The journalist does not decide, the judge decides.”  Markey retorted that the “clear and convincing evidence standard” to be met by those seeking a reporter’s testimony would prove a difficult hurdle to surmount.  He ended with an emotional appeal, saying he is concerned about the law’s impact on “a 39-year-old mother who has a 19-year-old son who has been shot, and who is going to a wake that night,“ and who wants the police to do all they can to find her son’s killer.  “You’re telling the police, ‘Go to everyone else, but don’t go to [the reporter]. “

Few of the other Committee members spoke.  State Rep. Sheila C. Harrington (R.-Groton) asked a few clarifying questions, but the committee co-chairs, Sen. Katherine M. Clark (D.-Melrose) and Rep. Eugene L. O’Flaherty (D.-Chelsea), did not offer their views on the bill. As the hearing wound down, State Sen. Richard J. Ross (R.-Wrentham) spoke directly to news anchor Wornick and saluted her for her battle to fight for her source 30 years ago.  “You went through hell,” he told her.

Bertsche can be reached at rbertsche@PrinceLobel.com.