Shield Rule…

Why Utah needs a reporter’s privilege rule

Rule 509, as amended, should be adopted by the Utah Supreme Court because of the following reasons:

Utah is one of a few states that does not grant protection to journalists.
Some 47 states grant some form of protection to journalists to keep them from revealing sources. The U.S. Congress is also considering a similar federal shield law after reporters spent time in jail for not revealing their sources. The rule strikes an appropriate balance between necessary protection to ensure the free flow of information, on the one hand, and recognition that sometimes the privilege may be overridden, on the other hand.

The rule is the product of open and thorough process
The rule represents the work of many sincere and earnest people in not only the professions of journalism, the law and law enforcement, but also the Advisory Committee and the judiciary. Through this process, an advisory committee became intimately familiar with the shield laws of other states and the District of Columbia. If adopted by the Supreme Court, the Utah rule will be a model of reporter’s shield laws in the nation.

The rule serves the public interest
Courts have always recognized the concept of “privileges,” allowing certain individuals to refuse to testify, out of an acknowledgment that there are societal interests that can trump the demand for all evidence. The Utah reporter’s privilege proposal is in line with other states that have adopted such privileges.
Without a reporter’s privilege, there is a chilling effect on whistleblowers and others who would disclose wrongdoing to news reporters. In that way it will serve the public interest. A reporter’s privilege does not place journalists above the law, but instead it ensures an independent press that is a check and balance on government. Journalists must be able to remain independent, so that they can maintain their traditional role as neutral watchdogs and objective observers. When reporters are called into court to testify for or against a party, their credibility is harmed. Potential sources come to see them as agents of the state, or supporters of criminal defendants, or as advocates for one side or the other in civil disputes. In the end, sources are less likely to talk to journalists when there is no legal protection.

The rule is not absolute
When disclosure is necessary to “prevent substantial injury or death” journalists could be compelled to reveal sources or information. Unpublished non-confidential newsgathering material, e.g., outtakes, notes, photographs, etc., also is protected by the rule, subject to the balancing test that the Utah federal and state courts have been using for the past 20 years. Therefore, in a case-by-case basis a judge can determine whether ‘the free flow of information to news reporters outweighs the need for disclosure.”

Sources: Edward L. Carter, BYU Department of Communciations; Reporters Committee for Freedom of the Press


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