From Deseret News archives:
Choose the right shield rule
The issue is whether reporters and editors should be granted any meaningful privilege to keep sources confidential during court proceedings. A wide-ranging advisory committee set up to make recommendations to the court on this matter ended up submitting two proposals. One would leave all whistle-blowers vulnerable to government action and would make it easy for courts and attorneys to rifle through the notes and other tools journalists use to obtain information.
The other would set up a balancing test that protects reporters and whistle-blowers unless the government can convince the court there is a need to obtain the information, that it is materially important and that it cannot be obtained through any other means.
Clearly, the second recommendation is the best. It would codify a legal standard that has existed for decades in Utah and has been upheld by judges at many levels, including at the 10th Circuit Court of Appeals.
This is more than just some technical issue of little concern to the average person. Nor is it something journalists want simply because they feel a need to dig up dirt in any and all matters without accountability. On the contrary, even the preferred alternative would allow access to reporters' notes if a court clearly saw an overwhelming and demonstrable need.
No, this is a matter essential to the proper conduct of a free and open government — one in which the people truly hold the power. In such a society, the media acts as a watchdog that uncovers government abuses. People who observe those abuses, and who don't trust internal procedures to fix them, must be confident they can tell a reporter without having their names revealed. If the Utah Supreme Court adopts a rule that removes that confidence, it would empower anyone in government who wants to abuse power or enrich himself through corruption.
It's easy to bash the media and point toward their own troubles — troubles that became known because they were reported by media that treat their own the same as they do anyone else. A closer examination, however, shows that the careful use of confidential sources has helped empower the public. Recent examples include reports about secret U.S. prisons in Europe for suspects in the war on terror and the president's domestic spying program, which lately was curtailed after public pressure.
Former New York Times reporter Judith Miller demonstrated what can happen without a reporter privilege when she was arrested and jailed for refusing to hand over notes she took for a story that never was published.
Ideally, the Legislature would pass a law granting reporters a qualified privilege. But lawmakers have been unwilling to do so. A judicial rule, codifying what has been standard practice for about 30 years, is the next best thing.
Utah is one of only three states that have yet to adopt either a law, a court rule or an appellate court opinion. The state Supreme Court ought to remedy that by choosing the correct alternative.
