Shield Laws
Shield laws are legislative measures designed to protect journalists from being compelled to disclose their confidential sources in legal proceedings, such as courtroom trials and public hearings. These laws are significant as they foster a free press by allowing journalists to investigate and report on issues without the fear of revealing their sources, which could lead to censorship or retaliation. Most U.S. states have enacted some form of shield law, with California’s law enshrined in its constitution. However, these laws are not without controversy; critics argue they create a form of special privilege for journalists, potentially hindering accountability.
While shield laws aim to balance the public's right to know with the need for journalistic integrity, their protections are not absolute. Courts have occasionally prioritized defendants' rights over these protections, and concerns have been raised about whether judges genuinely uphold these laws. Over the years, shield laws have adapted to address emerging social issues, including protections related to reproductive rights and gender-affirming healthcare, reflecting the evolving landscape of journalism. Additionally, the rise of online journalism presents new challenges for the application of these laws. Overall, shield laws play a critical role in supporting investigative journalism while navigating complex legal and ethical considerations.
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Shield Laws
- DEFINITION: Legislation that extends the concept of privileged communication to the relationship between journalists and their confidential sources
- SIGNIFICANCE: By protecting journalists from having to reveal their sources in courtroom trials and other public hearings, shield laws encourage the news media to investigate news more freely
Most states of the United States have some form of shield law that protects journalists from revealing their confidential sources when they are subpoenaed to testify under oath. For example, California’s law is part of that state’s constitution. Shield laws typically define not only what kinds of testimony cannot be forced from journalists, but they also define who a "journalist" is. Opponents to these laws call such provisions de facto licensing requirements, harking back to early English forms of censorship and Star Chamber courts. The censorship argument bites both ways, however. Without shield laws, governments have greater power to harass journalists and find ways to damage their sources. In contrast, shield laws give journalists and their sources greater freedom to harm defendants with anonymous accusations that cannot be cross-examined.
Shield law protections are not absolute. Some judges have ruled that these laws should yield to other interests and that their use should be restricted to protect limited kinds of information. New Jersey’s State Supreme Court has ruled that any state’s shield law must fall when confronted by defendants’ Sixth Amendment right to confront hostile witnesses. Some critics of the courts contend that because many judges do not like shield laws, they obey them in form but not in spirit.
Proponents of shield laws contend that when governments use subpoenas to intimidate the press, reporters must have the right to protect their sources; otherwise, facts about government corruption and other matters will be suppressed or censored, in fact, if not in name. Opponents charge that such laws have the negative effect of separating reporters from other members of the public by granting them special legal privileges.
Maryland was the first state to legislate a shield law in 1896, but most contemporary shield laws arose from legal battles fought during the 1960s when many reporters refused to testify in trials. The journalists argued that revealing their sources would violate the freedom of the press guaranteed to them under the First Amendment to the US Constitution. The US Supreme Court has never accepted that argument. In Branzburg v. Hayes (1972), the Court explicitly ruled that the press has no special right to withhold the evidence it gathers while reporting news. Lower federal courts, however, have constructed a principle that contributes to protecting confidential news sources. They base the principle not on the First Amendment, but on the need of the public to know. This construction assumes that the public is more likely to be fully informed when journalists report on news unfettered by any form of censorship—such as being forced against their will to reveal their sources.
Shield laws have evolved to address emerging challenges. In response to issues involving reproductive rights and gender-affirming healthcare, multiple states enacted shield laws relating to these topics. Shield laws played a pivotal role in protecting access to reproductive services, specifically abortion care, in states with restrictive laws. Further, the US House of Representatives passed the PRESS (Protect Reporters from Exploitative State Spying) Act in 2024, protecting journalists from revealing their sources in federal court testimony. The emergence of the Internet and online journalism has also created new challenges for applying shield laws.
Bibliography
"ACLU Cheers House Passage of the PRESS ACT." American Civil Liberties Union, 19 Jan. 2024, www.aclu.org/press-releases/aclu-cheers-house-passage-of-the-press-act. Accessed 21 Oct. 2024.
"Interstate Shield Laws." Center for Reproductive Rights, 26 June 2024, reproductiverights.org/interstate-shield-laws. Accessed 21 Oct. 2024.
Kirtley, Jane E. "Shield Laws." Free Speech Center at Middle Tennessee State University, 2 July 2024, firstamendment.mtsu.edu/article/shield-laws. Accessed 21 Oct. 2024.
"Shield Laws for Reproductive and Gender-Affirming Health Care: A State Law Guide." UCLA Law, law.ucla.edu/academics/centers/center-reproductive-health-law-and-policy/shield-laws-reproductive-and-gender-affirming-health-care-state-law-guide. Accessed 21 Oct. 2024.
"Shield Laws." Cornell Law School Legal Information Institute, www.law.cornell.edu/wex/shield‗laws. Accessed 21 Oct. 2024.