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Home Your Right to Know columns 2008 February: Does Wisconsin need a shield law?

February: Does Wisconsin need a shield law?

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State Rep. Joe Parisi (D-Madison) is proposing legislation to create a state "shield law" for news media.

Thirty-two states already have such laws, which protect a journalist's right to keep confidential the sources and material gathered during reporting. The Utah Supreme Court recently passed a rule to create a similar privilege there. The need for shield laws arose in Kentucky in the early 1970s, when a reporter wrote a story about two hashish manufacturers. Authorities wanted to know the men's names, but the reporter refused to reveal them.

Eventually, Kentucky's Supreme Court ruled that reporters who witnessed a crime couldn't keep their sources secret. The decision alarmed the news industry, spurring efforts throughout the country to pass shield laws.

Interestingly, the Kentucky case coincided with one in Wisconsin. The day after the infamous bombing of the UW's Sterling Hall in August 1970, the culprits claimed credit in a note delivered to a Madison underground newspaper.

The paper published the letter in a special edition. Its editor, Mark Knops, was called before a Walworth County grand jury probing a UW-Whitewater fire that some suspected was set by the same people. Knops was asked who had delivered the note, and if he knew the bombers' names. When he refused, he was charged with contempt and sentenced to six months in the Walworth County jail.

Wisconsin's Supreme Court later upheld Knops' contempt of court charge and jailing. But, for the first time, the high court ruled that news people do have a right under the Wisconsin constitution to keep sources confidential - unless there is no other way for the authorities to learn the identities of culprits.

(In the case at hand, the bombers had been named by the FBI. But since they were not captured, the Supreme Court held that their identities were not certain, and the privilege did not apply.)

In late 1970, I interviewed Knops in the Walworth County Jail. "The courts have to give newsmen the right under the First Amendment not to be dragged before investigatory bodies to tell what they know," he told me. "This is how the government will be able to censor the press and control what goes in the newspapers."

Following the Knops' case, there have been other cases where Wisconsin reporters were subpoenaed, but each time the lower courts ruled in the news person's favor. Then, in a 1995 case involving Milwaukee Magazine, a state appeals court handed down a ruling that arguably offers the protections of other states' shield laws.

The magazine printed an investigative report that essentially accused a Milwaukee dentist of bilking patients by pushing them to get unneeded and expensive treatments. It had interviewed several other dentists and dental experts, some of whom spoke on condition of anonymity. The accused dentist's attorneys filed suit and demanded the names, notes and other material from the magazine's interviews.

The circuit court told the magazine to turn these over. But the appeals court declared that journalists have greater protection than other witnesses from having to comply with discovery subpoenas.

Two subsequent decisions involving records' subpoenas - one in 1978 and another in 1983 - affirmed this privilege. And many reporters in Wisconsin believed the protection afforded by these rulings were as good as the shield laws in other states. Rep. Parisi's initiative is prompting a reassessment.

Passing a shield law won't be easy. But Parisi believes members of both parties are alarmed at efforts made elsewhere to force reporters to reveal confidential sources. A federal shield law, which would probably make the state laws superfluous, passed the Senate Judiciary Committee on 15-2 vote last October. But its future remains uncertain, and President Bush has threatened to veto it.

Parisi plans to introduce a bill this year. At the very least, he says, we can codify into state statute the case law that now exists in Wisconsin. This would make the protections state reporters enjoy less vulnerable to being watered down.

Given the anti-news media climate in many courts and increasing pressure brought by prosecutors to obtain reporters' sources and notes, that seems like a good idea.  

Dave Zweifel is editor emeritus of The Capital Times. Your Right to Know is a monthly column distributed by the Wisconsin Freedom of Information Council (www.wisfoic.org), a nonprofit group dedicated to open government.