Rules of Evidence

This amendment, particularly paragraph (b) is a bad idea. The comments make it clear that the law in this area is not settled. If the legislature has not spoken to this issue, and the courts have not made definitive pronouncement, there is no legitimate basis for the Bar to decide the question for the legislature and the courts. This “rule” is therefore legislation by a non legislative body.
Furthermore, the rule does not make the extent of the privilege “clear.” Language like “necessary to prevent substantial injury or death,” is completely undefined and ambiguous.
This “rule” takes an existing problem and makes it bigger.

I am in favor of the adoption of Rule 509 as amended. I believe the rule, as currently constituted, 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 overriden, on the other hand.
The recent amendment to Rule 509, in section (b), clarifies that disclosure of confidential source information may be required if “the person seeking the information demonstrates by clear and convincing evidence that disclosure is necessary to prevent substantial injury or death.” While this situation may arise only very infrequently, I think that is a common-sense and eminently acceptable exception to the privilege. I cannot, of course, speak for all journalists, but as a journalist myself, and as a lawyer who has represented journalists claiming a reporter’s privilege, I would absolutely have no problem with such an exception being written into the rule. Most if not virtually all journalists I have ever known do not want to cause, or abet in any way, substantial injury or death. Thus it makes sense, from a utilitarian perspective, that the privilege could be overcome if such a risk is clearly and convincingly imminent.
I stated in the earlier comment period my general approval of Rule 509, but I would like to once again express the view that this rule, if adopted, will serve the public interest. 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. I, for one, am grateful to all who have worked to reach a sensible resolution to the very serious and important issues raised by subpoenas to journalists for confidential sources and confidential newsgathering. As a journalist who was once the subject of a subpoena, and as a researcher who has written about the topic, I am entirely in favor of the approach adopted by the Advisory Committee and recommended for the Court’s approval. With the adoption of Rule 509, Utah will have reasonable protection for the confidentiality of journalists and their sources but will also preserve the ability to call upon critical evidence when necessary in criminal and civil processes.
The sensible balancing test represented in the current version of the rule is the majority approach across the country and gives judges the most flexibility in considering reporter’s privilege questions. I believe this rule will provide clarity and predictability in this area of the law for criminal prosecutors, civil litigants and the journalists themselves who are most frequently not parties to a legal action but whose information may be deemed relevant to such an action.
One final point: This version of Rule 509, in my estimation, brings Utah squarely in line with Rule 501 of the Federal Rules of Evidence and the cases interpreting that rule. In the federal context, Rule 501 has been recognized to grant reasonable evidentiary privileges such as the reporter’s privilege, subject to a sensible judicial balancing test. This same approach is embodied in Utah’s well-considered Rule 509.
I urge the Court to adopt Rule 509 as currently drafted. Thank you,
Edward L. Carter, J.D.
Assistant professor of communications
Brigham Young University
Of Counsel, Keen Law Offices LLC
Utah State Bar #09871

Although in general I agree that the law in this area is in disarray and creates substantial controversy every time the issue arises, I believe that the issue arises infrequently enough that a particular privilege ought not to be created to address this matter. In my view, creation of new evidentiary privileges is an exercise filled with unforeseeable pitfalls. I can envision at least that the creation of a news organization privilege will engender the constant use of the privilege to attempt to conceal that otherwise would not be considered for concealment given the costs of attempting to claim a privilege that are now visited upon any news organization.
In other words, recognition of a new privilege usually begets the use and even abuse of that new privilege. If the “news gathering privilege” remains without an official imprimatur, the news organizations and other potential users might be more careful in how they claim such a privilege, recognizing that each claim of privilege will be scrutinized more carefully and will perhaps create a costly.
Moreover, it has been a very difficult matter to get courts to conduct adequate in camera reviews. Judges are reluctant to conduct such time-consuming reviews and in the case of another (statutorily) created privilege not recognized at common law (the peer review privilege), it has been practically impossible to get courts to conduct adequate in camera reviews, despite occasional table-pounding by the appellate courts of this state.
I do not think burdening judges with an additional demand for in camera reviews is a wise choice until the courts have been give far more resources (such as discovery masters or magistrates) to adjudicate discovery disputes.

Lack of formal protection imposes a sense of caution on journalists in the use of hidden sources, which such rule may convert into a spirit of license or abandon which is not healthy or beneficial to a community with a vested interest in truth. I would not grant such privileged protection, which invites assault on truth for the sake of venal entertainment. If such a rule is passed, there should certainly be a balancing imposition of responsibility for social and individual harm attributable to intentional or reckless disregard for truth.

I couldn’t disagree more with those that have, without any proof, charged that the corporate media is trying the desecrate the First Amendment. As a Utahn, former Utah news reporter and member of the National Society of Professional Journalists Freedom of Information Committee, I can assure you that this rule would protect the free flow of information to the public. The basic premise behind the free press clause of First Amendment is that “Congress shall make no law” to impede the ability of the press to be a check and balance on government. This privilege helps that premise become reality.
The privilege proposal is a product a long and open process that examined reporter’s privilege rules in 47 states. In fact, the study found Utah to be out of step with most other states. Far from being an First Amendment desecration, it is an enhancement to the ability of vital information to reach the public.
Without a reporter’s privilege, there is a chilling effect on whistleblowers and others who would disclose wrongdoing to news reporters. In that way the rule will serve the public interest.
A reporter’s privilege does not place journalists above the law, but instead the rule ensures an independent press 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. In the end, the public is deprived of important information that may have be revealed.
As a former reporter and editor, I spoke with sources about protecting their identity many times. I tried mightly to get them on the record each time. However, I felt that on several occasions the party I was speaking with was not willing to continue to share information unless I could protect them past the courthouse steps. The investigations in these instances dealt issues important to the public including corruption at a public transit system, misuse of government grant money, installing a new city council member without any public hearings, and an investigation of millions of dollars of money missing from a Utah bank. In some cases, I was not able to fully pursue the story. In other cases, I was never able to report a story. The public interest was harmed because I was not protected by a Utah reporter’s privilege. Such a privilege is long overdue and needed.
Sincerely,
Joel Campbell
Assistant Professor
Department of Communications
Brigham Young University
Provo, UT 84042
joelcampbell@byu.edu

I strongly urge support of the proposed rule.
While it recognizes the privilege, it still leaves the ultimate decision in the hands of the court.
Those who warn that it will encourage reckless behavior by journalists apparently have little trust in the court’s ability to fairly weigh the societal benefits of upholding confidentiality against the need for disclosing vital information unavailable from other sources.
I’d ask critics of the proposed rule to cite cases where the Utah news media have abused confidentiality. If there is a track record of responsible, ethical behavior, what is the compelling argument that that would change under the proposed rule?
Most cases where this issue would come into play involve protecting the identify of “whistle-blower” sources whose livelihoods or standing in the community are at stake. At bottom, this rule is about protecting them, and thus encouraging exposure of corruption, wrongdoing or other activities that beg for public exposure.

I support adoption of the proposed rule as currently drafted. Journalists need strong protections to encourage sources, whistleblowers and other concerned citizens to come forward and speak to reporters about governmental or private industry malfeasance, corruption or incompetence. The ability of the Fourth Estate to keep a watch on our government is only as powerful and effective as those willing to speak to it. It is vitally important to establish a socio-political climate that encourages coming forward, instead of chilling it. Enacting rules such as this one, in all 50 states, and at the federal level, is the only way to ensure that our media remain vibrant and capable of fulfilling their watch dog duties. This rule establishes an environment that encourages sharing with reporters, while leaving the ultimate balancing to judges who must make the decision based upon individual circumstances. In this way, the rule is protective but flexible. I encourage adoption of this rule.

Comment of The Statewide Association of Prosecutors
The Rules of Evidence Advisory Committee and the Utah Supreme Court have made a fine effort to craft a reporter privilege Rule which allows the balancing of the need for the free flow of information with other crucial societal interests.
Of particular note, the assignment of the burden of persuasion to the party seeking confidential unpublished news information under Subsection (c) and conversely the person claiming the privilege for other unpublished news information under Subsection (d) is eminently practical and fair. It is also something of an innovative solution which deserves appreciation.
Prosecutors have been concerned about the privilege contained in Subsection (b), not because we intend to regularly pierce the confidential relationship of the reporter and the source, but because on rare occasions when it may be extremely important we are loath to be left without a safety valve.
We are reasonably convinced that the language of Subsection (b) addresses these issues, but we feel that it is necessary to memorialize our understanding of the term “substantial injury”. Some background may be helpful for future interpretation.
After the publication of the prior draft, The Statewide Association of Prosecutors and the Media Coalition agreed on language to resolve the heated dispute over the absolute privilege contained in Subsection (b) of the May 31st draft. That agreed language was forwarded to the Supreme Court. The compromise language was as follows.
“A news reporter or confidential source has a privilege to refuse to disclose and to prevent any other person from disclosing confidential source information unless the person seeking such information demonstrates, by clear and convincing evidence, a compelling and overriding public interest which cannot reasonably be served by any alternative means and which substantially outweighs the interest of a continued free flow of information to news reporters.”
That language adequately described the balancing test even though it could have been of sleeker style (a typical trait of compromise language). The matter was returned to the committee which substituted the language in the current draft. The current draft is unquestionably more succinct, but it does leave some room for argument as to the scope of the term “substantial injury”.
Because it is paired with the term “death” one might argue that it refers only to “physical” or “bodily” injury. In 76-1-601 (12) the term “substantial bodily injury” is defined. If the Court or the Committee had intended to narrow the application to bodily injury it would likely have used the term already in common use. I am told by Richard Schwermer – the staff attorney for the committee- and by committee member Christine Soltis that the term was left intentionally broad to include any form of injury which might create an overriding public interest (neither Rick nor Christine spoke on condition of anonymity).
There are many possible instances not involving physical injury which might create an overriding public interest. Fortunately, such instances will be rare. Unfortunately, it is the unusual and highly publicized case which affects public confidence in the justice system and particularly the criminal justice system. A single case which causes outrage to the general public inflicts damage which takes many years to overcome. It is for those rare events that we requested this safety valve.
It is not at all far fetched to predict a scenario where, during the trial of an individual for a serious crime such as a homicide, a confidential source tells a reporter that he, rather than the defendant, committed the crime. After the account is published, the defendant would be unable to use the hearsay account in his defense, and without this balancing test would be unable to pierce the privilege to find the source and prove his own innocence. Likewise the prosecutor would have no way to investigate whether the source is accurate and whether he or she is prosecuting an innocent person, or whether the source is a confederate of the defendant who is simply attempting to undermine the trial. We assume from the specific language of Subsection (b) that the potential of a wrongful homicide conviction would be enough of a “substantial injury” to at least have the court balance the interests in the case. Even in the described scenario there may be remedies which would not breach the privilege.
Many violent criminals have a propensity to enjoy bragging about their criminal exploits. An absolute privilege would have opened a new avenue for a criminal to describe in gruesome detail a child abduction and murder which may be printed by an irresponsible “news organization”. We assume that the mental anguish of the victim’s family and the potential public outrage from such a story would constitute sufficient “substantial injury” for the court to at least balance the interests in the specific case.
Although our concerns are in the criminal arena, we also assume that the term “substantial injury” may cover extreme cases which may be the subject of civil litigation.
We do not expect the court to pierce the privilege for criminal prosecution purposes except in the most extreme cases. Clearly the rule anticipates that a reporter should be able to interview people doing illegal things and gather information which has value in bringing to light social problems. We do not dispute the societal value of confidential sources when reporters are gathering information on corruption by persons of power in the public or private sectors.
Another issue which might cause interpretive concerns is the first phrase of line 56 of the Advisory Committee Note. It states “With the exception of confidential source information, the rule adopts a standard that requires the court to balance the interests….” With the change in the language of Subsection (b), a balancing test is now required with regard to confidential source information. That would be true regardless of how one interprets the term “substantial injury”.
Rick tells me that the committee note applied to the May 31 draft and that they did not go back and change the note. We would like to see the note revised, as the notes are always available and are the first source consulted by lawyers and judges in determining the intent of the rules. The current note will likely cause confusion in future cases. We agree with the earlier suggestion of Mr. Hunt on behalf of the Media Coalition that the first clause on line 59 be deleted leaving the sentence to read “the rule adopts a standard that requires the court to balance the interests of the person seeking disclosure against the interests of the free flow of information to news reporters.”
Any additional language stating that the term “substantial injury” was chosen to include injury other than physical injury would be highly appreciated.
Assuming that our interpretation of “substantial injury” is correct, this rule is sufficiently flexible that we should all be able to live with it for a long time and serve the best interests of society.
Paul W. Boyden
Executive Director
Statewide Association of Prosecutors

I would like to offer my strong support to this version of Rule 509. A free and independent press is critical for a free society. By its nature, a free press serves a vital role in informing the community of successes and wrongs in our society. At times this requires the ability to have people in sensitive positions to come forward with information about corruption or other wrongdoing.
To compel reporters to divulge sources of information takes away the independence of the press and forces reporters to be de facto agents of the state.
The proposed rule strikes the correct balance in allowing independence of the press while leaving review in the hands of the court.
Geoffrey Fattah
Deseret Morning News

The claim that the corporate media is attempting to desecrate the first amendment is ridiculous. What possible motivation would we have? We in the media feel strongly about the First Amendment and the guarantee that it gives us to produce good news products and practice good journalism. There is hardly a day that goes by that we in the media don’t point to the First Amendment as an extremely important part of the Constitution that gives us the right to do what we do every day without fear of governmental intervention. The shield law would only compliment the press freedom that the media enjoys because of the First Amendment.
There are a lot of people in our communities who rely on the media to keep governmental and elected officials on the straight and narrow. Regularly we get calls from citizens who say they have information about the bad behavior of people and institutions who have a lot of power. They expect the media to, at the very least, investigate their claim and if warranted write a story about it. Often they don’t want their identity revealed because they fear that something bad may happen to them or family members because they went to the media. Reporters need to be able to assure these people that they can and will protect their identity and that the reporter won’t find himself/herself on a witness stand with an attorney demanding that he/she reveal the name of the person who was the source of information. The Reporter Shield Law would allow the reporter to assure the informant that their identity will remain confidential.
During my long career in the newspaper business, over 40 years, there have been many, many times that people have come to the newspaper where I was working with sensitive information that they wanted to tell a reporter. But they wouldn’t talk unless there was an absolute guarantee that their name would not be used. There have been many social ills corrected by good reporting that was initiated by a news tip. There also have been many stories that needed to be written but weren’t because the people who had the information wouldn’t talk because the reporter couldn’t absolutely guarantee that their identity would remain confidential.
Reporters need to be able to guarantee the “whistle blowers” that their identity will remain confidential. Also reporters need to feel comfortable that when they write a sensitive story that they won’t find themselves on the witness stand defending what they have written.

First, having sat through all of the hours and hours of discussion on this proposed rule since it was first brought to the Evidence Advisory Committee I return to the opinion I held on its first presentation. This is not a proper topic for a rule of evidence. Virtually every other reporter’s shield law is a statute. The very length of the proposed rule distinguishes it from others of the rules of evidence. If it is going to be adopted, in any fashion, it should be adopted as a statute leaving the court define its parameters through appellate decisions.
Second, the sky is not falling. All of the arguments for Rule 509 are based on what might happen, not what has happened. The federal courts function very well without a federal counterpart to this proposed rule. To date, Utah’s courts have done so as well. All concerned know that when, and if, reporter’s shield issues arise the need only look to the Bottomly case, written by one of Utah’s brightest and ableest jurists for a clear description of the analysis to apply. This rule is a solution looking for a problem.
The court should not take the bait. If the respective sides to this argument believe the reporter’s shield issue needs to be resolved, let them take it to the legislature. If the court promulgates this rule it may well limit its options when, and if, the issue is ever actually appealed in a Utah state case.

The problem with Drew’s comment below is that it assumes that all “journalists” (I thought they used to be called “reporters”?) are highly ethical and otherwise 100% honest in everything they report. That is the world of fantasy, not the real world. The great bastion of news, The New York Times, has repeatedly been caught making up news stories out of whole cloth. The more political, the more they are fake. Read a 2003 book called Journalistic Fraud: How The NY Times Distorts the News. There was a NY Times reporter several years ago who actually fabracated a whole story about a NY street urchin for which she won the Nobel Prize. Reporters, excuse me, “journalists,” need to be overseen in some fashion because they are so political now, I don’t believe one can trust any of them. I certainly don’t believe much of what they write anymore, especially about the War in Iraq. They need MORE oversight, NOT more privileges, more immunity, more freedome to fabricate. And due to our slander laws, they have no accountability to anyone. Our slander laws, coupled with everyone having a political agenda, means that these reporters have zero accountability. THAT is wrong in my opinion. This proposed rule only exacerbates the problem. I see no good coming from this proposed rule.

I strongly support the creation of a privilege for news reporters. The media is one of our biggest protections against overbearing government, and sources who are protected from disclosure are far more likely to “blow the whistle” (and tell the whole and unvarnished truth) and, in the process, shed some light into what is going on. The limitations and ability to overturn the privilege in limited circumstances are reasxonable and well thought out. I urge acceptance of the proposed creation of this privilege.

I support this version of Rule 509 because I believe it adopts a balanced approach.
As written, the rule does not give reporters, like myself, blanket protection from having to reveal where or who we got our information from. After all, it provides for judicial review, which would allow access to confidential source information to “prevent substantial injury or death.”
I find the hypothetical situation submitted by the Statewide Association of Prosecutors laughable. It’s hard to imagine that someone would approach a reporter to confess to a crime when they’re about to get away with it. It’s a specious argument.
The reporters I know are diligent, hardworking individuals who strive daily to ethically exercise our nation’s First Amendment freedoms and keep the public informed about the world around them. The goal of this rule is not to immunize us from ever having to disclose our sources, but simply to provide some protections for the reporter/source relationship, one that has proven its worth time and again in our history.
Geoff Liesik
Editor
Uintah Basin Standard

Comments from the Utah Media Coalition, December 18, 2007
We write as legal counsel for the Utah Media Coalition, a coalition of virtually every media organization in the State of Utah.
Proposed 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 such protection to journalists. Some 47 states grant some form of protection to journalists to keep them from revealing sources. The proposed 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 an open and thorough process and of fair compromise. 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.
Congress recently has passed a very similar law with provisions requiring the federal courts to balance the same types of interests described above.
Many of our Coalition members have commented individually, but here below– for your additional consideration– are some comments they have published in their editorial pages
Adopt a shield: Reporters, whistleblowers need court protection
Salt Lake Tribune editorial, Tuesday, December 18, 2007
“Ever have the feeling that some elected officials, government agencies and corporate bigwigs operate outside the law with too little risk that they will ever be called to account? Well, we have that feeling all the time, because there’s just too much evidence to believe otherwise.
This nation’s founders gave the press strong constitutional protections to act as the public’s surrogate watchdog on government officials sworn to uphold the law.
From the beginning, newspapers and other media have served as conduits for information provided by sources who are in a position to report corruption, but who can’t be identified without suffering retribution. Today, these people are aptly called whistleblowers, but they would put away their whistles if news reporters did not pledge to protect their anonymity.
Recognizing that this reporter-source relationship is essential to maintaining the free flow of information that is the cornerstone of democracy, all but three states have adopted some level of reporter privilege that ensures the reporter not to be forced in a court of law to divulge the identity of a source or risk going to jail for contempt.
In Utah, one of the three states without a reporter shield law, court rule or binding precedent, the Utah Supreme Court is considering a proposed reporter privilege in the form of a court rule. If adopted, it would provide an absolute privilege not to be compelled to divulge the identity of a confidential news source if a reporter or news organization is hit with a subpoena to testify.
The rule also would provide a reasonable balancing test for a judge to determine whether unpublished confidential information — reporter notes, photographs, tapes or outtakes — must be disclosed. The person seeking the information would have to demonstrate a need that ‘substantially outweighs the interest of a continued free flow of information to news reporters.’
The Salt Lake Tribune is a member of the Utah Media Coalition, which is proposing the rule. Though it has the support of Utah Attorney General Mark Shurtleff, many prosecutors and plaintiff attorneys see it as too broad a protection.
We urge support for the rule and for the court to adopt it as proposed.”
A good shield for reporters
Deseret Morning News editorial, Monday, December 10, 2007
“Each time a reporter is threatened with jail time for refusing to reveal a source, people with information about official corruption become less likely to tell what they know. As a result, freedom suffers and the nation grows a little weaker.
So we’re pleased to see that the Utah Supreme Court has drafted a reporter’s privilege rule that will make it significantly harder for prosecutors, judges and others to punish reporters for failing to give up their information. The rule has been submitted for a public comment period until Jan. 22. It ought to be adopted.
The rule would set up a balancing test that protects reporters and whistle-blowers unless the court is convinced the information can be obtained no other way, and that it is vital and of relevance. These factors have to be weighed against society’s need for a free and independent media that can keep a check on abuses of power. Even if courts decide it is necessary to compel a reporter to reveal information, a judge has to review the information in private before making a final decision.
This would set a uniform standard that guides all state courts in matters dealing with confidential sources. It also does what state lawmakers have refused to do statutorily, despite similar laws that exist in many other states. Until now, Utah has been one of only three states without a law, court rule or appellate court opinion granting a reporter privilege.
As the proposed rule notes, ‘Although recognition of a reporter’s privilege, as with all privileges, may limit the disclosure of specific facts in developing an evidentiary record in a particular case, the law has long recognized that some societal needs and values outweigh disclosure. To this end, the reporter’s privilege has been recognized as important in assuring a continued free flow of information to those who gather and publish the news.’
That free flow of information has come under attack numerous times in recent years, especially on a federal level. Utah’s Supreme Court has demonstrated it both understands and values the role of a free press in preserving liberty. Its proposed rule ought to give all Utahns more peace of mind.”
Based on all the foregoing, the Utah Media Coalition respectfully requests that the court adopt the rule as drafted.
Submitted by Legal Counsel for the Utah Media Coalition:
Michael Patrick O’Brien
Jones Waldo Holbrook & McDonough, P.C.
170 South Main Street, Suite 1500
Salt Lake City, Utah 84101
801-521-3200
Jeffrey J. Hunt
David C. Reymann
Parr Waddoups Brown Gee & Loveless
185 South State Street, Suite 1300
Salt Lake City, Utah 84111-1537
801-532-7840

The comment by Mr. Breeze that “this rule would grant absolute privilege to such reporters as ‘Nadine Wimmer’ to withhold the identity of an eyewitness in a criminal case” should be answered. Breeze and others have suggested in this forum that the proposed Rule 509 would somehow prevent the disclosure of information necessary to a fair trial. This is clearly not true. There is no absolute privilege being suggested here. Under the proposed Rule, a judge would always have the ultimate power to compel disclosure when information is genuinely required. The only question is whether information should be compelled with a heavy hand from a news reporter when compulsion is not truly necessary. I, for one, would never object to providing confidential information if it were needed to prevent a miscarriage of justice, and I support the exceptions in the proposed Rule.
Legislation is not the best way to address confidential sources, in my view, because it tends to be too broad and inflexible. Judges are in a better position to read the nuances of individual cases and to make the calls accordingly, especially in light of settled First Amendment law that requires no further elaboration by the Legislature.
The proposed Rule creates no new “right” for anybody, as Kent Hart seems to suggest. It is merely a common-sense tool governing the circumstances under which evidence should be compelled. Hart is in error, moreover, when he says that “Legislative bodies create rights” — a startling proposition that requires no response. In lay terms under the proposed Rule, the courts retain all the “rights.”
The proposed Rule 509 would establish consistency. If the Bottomly analysis is a sound standard, as even Robert Wilde admits it is, then why shouldn’t it be adopted formally as standard procedure?
Randy Wright
Executive Editor
Daily Herald

Two hypotheticals and a couple of points:
1. Facts: Wrong person charged with attempted murder. Actual assailant has confessed to his mother who confided the fact to a “reporter” but did so under assurances of confidentiality. The mother provided details showing intimate knowledge of crime. Mother tells others that she made a statement to the reporter, but does not provide details other than saying it would be “bad” for the son.
Defense issues a subpoena for the reporter. The reporter asserts Rule 509 because he does not have consent from the mother. This is not a death penalty case.
Result: Under this proposed rule the wrongfully accused could show hardship all day long but could not defeat the claim of privlilege because he cannot show a risk of substantial injury or death. First, no death is possible as it is not a death penalty case. Second, under rules of statutory construction the term “substantial injury” must refer to physical injury as it appears in the same clause as “death”. Hence, this wrongfully accused defendant could not overcome the privilege unless the language was changed to read something like “substantial hardship-financial, physical or emotional.”
2. Same facts but in the context of a civil lawsuit for violent assault. The plaintiff seeking to prove that the defendant “confessed” to his mother would be forbidden to bring forth the testimony of the “reporter” because there is no chance of death of serious bodily injury. The result is a gross deprivation of justice.
3. This privilege is absolute because the media entities need only assert the priviiege. They don’t have to prove lack of hardship, or anything else for that matter. They just have to assert the privilege then then burden and the expense shifts to the little people.
Just like the privilege against self incrimination the proposed media privilege is absolute. It need only be asserted- no conditions need to be fulfilled.
4. A quick check with the Utah Department of Commerce shows that there is no entity doing business in Utah called the Utah Media Coalition. So is this a real organization or a sham designed to show broad support when in reality the whole plan is a operation run by the Salt Lake Tribune?
Finally, the promoters have still not told us how much money has been spent, by whom, from whom and to whom. I think we need this information to get the real picture.
It is obvious that the media lawyers are refusing to disclose this information because they are afraid it will reflect negtively on their scheme. I guess they are asserting a “media privilege” to keep the public uninformed. Sound familiar?
Robert Breeze, 322 2138
robert.breeze@gmail.com

I support the protection of reporters being required to reveal their news sources.
A free country means the public must have a means of obtaining information that cannot be suppressed by government. Without those protections, this country is certain to descend into a fascist police state.
Every protection possible should be extended to news reporters.

The following was printed as a column in the Odgen Standard Examiner
Top of Utah Voices: Utah journalists get better protection to help tell better stories
Monday, December 31, 2007
By Allison Barlow Hess
Commentary
According to a collection of cold war documents, declassified on Dec. 21, 2007, former FBI director J. Edgar Hoover drafted a plan to detain 12,000 Americans whom he considered disloyal.
The New York Times reported, “Hoover wanted President Harry S. Truman to proclaim the mass arrests necessary to ‘protect the country against treason, espionage and sabotage.’ The FBI would ‘apprehend all individuals potentially dangerous’ to national security.”
The plan would have held citizens in military prisons, suspending habeas corpus, the right to seek relief from illegal detention. Seen with 50 years of historical perspective, the secret scheme by the head of a powerful government agency seems both chilling and ludicrous.
Although apparently nothing ever came of his idea, the recent revelation underscores the need to protect Utah reporters who use confidential sources to reveal information important to public welfare, especially when it involves government corruption, fraud or abuse of power. Utah is currently one of only three states in the nation that does not have some kind of law, rule or statute protecting reporters from being compelled to turn over notes or from having to testify in court without risking contempt of court charges and jail time. That could change soon with Rule 509, under consideration by the Utah Supreme Court. The rule which took a committee of members from the media, law and law enforcement two years to hammer out provides some much-needed uniformity for all state courts to follow when seeking to compel information from reporters.
The rule would provide a sensible balancing test, taking Utah from the back of the pack and making it a model among states for reporters’ privilege. According to the proposed rule, “A news reporter or confidential source has a privilege to refuse to disclose and to prevent any other person from disclosing confidential source information, unless the person seeking the information demonstrates by clear and convincing evidence that disclosure is necessary to prevent substantial injury or death.” In cases where there’s a question whether a reporter should be compelled to testify, a judge would review all the evidence in private before making a determination.
“Unfortunately, people who are critical of this try to frame it in such a way that it is just journalists” getting protection, said Joel Campbell, who serves on the National Society of Professional Journalists Freedom of Information Committee. Campbell is also a professor at Brigham Young University and former Utah journalist. “Really it helps the free flow of information in our society. Whistle blowers, people who know of corruption in government, may not go to journalists if they know they are going to be subpoenaed or reporters can’t protect them as a source. Therefore, whistle blowing won’t happen and the public won’t be served with information that might be helpful to our democracy.”
The proposed rule is open for public comment through Jan. 22. A link to both the rule and comments can be found at utahspj.blogspot.com.
Critics of the proposal generally say it’s a solution without a problem and an issue more appropriately handled by the legislative versus the judicial branch.
The current president of the Utah Headliners Chapter of the Society of Professional Journalists disagrees. Ben Winslow said when reporters can’t protect sources, it not only creates a chilling effect, which deters information, but it also puts reporters in the awkward position of becoming part of the news.
“When you haul a reporter into court, one of the big problems is it forces the reporter either to act for the state or for the defense,” Winslow said. “They suddenly become a tool. We’re supposed to be impartial. We’re supposed to be observers. We’re supposed to be stepping away from this and suddenly we become a part of the process.”
The rule was crafted after careful compromise and after much time, scrutiny and heated debate. Paul W. Boyden, executive director of the Statewide Association of Prosecutors, wrote on the public comment Web page that prosecutors would like the term substantial injury “to include injury other than physical injury.” Overall, however, the rule strikes an appropriate balance for all interests.
“Assuming that our interpretation of ‘substantial injury’ is correct, this rule is sufficiently flexible that we should all be able to live with it for a long time and serve the best interests of society,” Boyden wrote.
The best interests of our democratic society will always include rigorous protection for the free flow of information, which Rule 509 would help provide.

We, the board members of the Utah Foundation for Open Government, would like to add our support in favor of Rule 509 and commend the committee on the work it has done on the rule.
As a citizen coalition, we support all efforts to keep government transparent and open to the citizens it serves.
A free and unencumbered press plays a key role in achieving this. While there are many checks and balances outlined in the constitution and U.S. law, we believe the most important of those is the work of the press in monitoring, providing information and educating the public about government and how it is functioning.
However, the press can never truly be free if members of the media live in fear of retaliation,intimidation or undue pressure to reveal their confidential sources through the legal process. Rule 509 ensures that, except in clearly-defined life-threatening circumstances, they can fulfill their constitutionally-protected function in Utah without fear and with the ability themselves to protect those sources. The UFOG board fully supports Rule 509.

A rule of evidence establishing a privilege for news reporters in this instance I believe usurps authority belonging to the Utah legislature. I believe this rule ought to pass through the legislative process just as any other statute is enacted by the legislature and considered by the governor before becoming law.
The clear intent of this privilege is to protect news reporters and employees of government and private enterprises who disclose confidential information to the media. Often the confidential information serves as the basis of news stories discrediting the integrity and character of prominent executives and public officials, on the other hand the privilege prevents corroboration of the information and the reliability of the source on which the published statements are based. The privilege applies in all cases but those where there may be a risk of “substantial injury” or death.
The privilege as framed in this rule is subject to abuse by disgruntled employees, vindictive public officials, or unethical reporters who may employ it as a license to defame their superiors, political opponents, or to disclose information vital to the security of of our citizens or the continued viability of a private enterprise. The proposed rule is a paradox professing to protect the the disclosure of some confidential information while protecting from disclosure information essential to the prosecution and defense of civil and criminal cases.
The adoption a news reporter privilege involves policy decisions which ought to be thoroughly debated and considered by the legislature, subject to the approval of the governor. The proposed method of adoption of this rule is contrary to the constitutional doctrine of separation of powers. This rule is being crafted by the judicial branch of government and will be adjudicated and enforced by the judicial branch of government, largely against the officials and employees of the executive branch of government and occasionally against business executives. The state legislature is the proper forum for consideration of comments from the general public, business owners, the state executives, county and municipal executives, and law enforcement officials. The judicial branch of government is poorly equipped to make policy decisions considering the concerns of all stakeholders in the outcome of a news reporter’s privilege.

I support the adoption of URE 0509 and giving reporters privilege to withhold confidential information. As a crime and public safety reporter at The Salt Lake Tribune, I am contacted by people claiming to be victims of misconduct by police, attorneys or the courts. Some of these claims prove to be false or the offense inconsequential. In legitimate claims, the victim often fears retribution by the original offender or the offender’s colleagues. The victim is, after all, someone whom the legal system already failed. Without promises of confidentiality to these victims, I cannot tell their story, expose problems in our legal system and prevent other people from becoming victims.
Sincerely,
Nate Carlisle
Salt Lake Tribune

The Society of Professional Journalists, the nation’s largest journalism advocacy organization asks that Rule 509, as amended, be adopted by the Utah Supreme Court because of the following reasons:
1. Utah is one of a few states that does not grant protection to journalists.
2. 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.
3. 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.
4. The rule is the product of an open and thorough process.
5. As a society, we value transparent government processes. 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 on 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.
6. The rule serves the public interest.
7. Courts have always recognized the concept of “privileges,” allowing certain individuals to maintain confidences, 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.
8. 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., while protected by the rule, is subject to a 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.”
Sincerely,
Clint Brewer, President
Society of Professional Journalists

Please vote to establish the shield law for journalists. We need to get credible information from journalists whose sources will be able to give such information when they know they will be protected.
This “second” amendment is much better than the first. Thank you.

It should be self-evident that a news outlet’s promise of anonymity to a source providing sensitive information who requests such protection can be vital for both helping inform a community and those who might need to act on the divulged information. Forcing news organizationsto break that promise should also be seen as a way to weaken press ability to perform essential public services.
In considering this issue it’s important to understand that reporter-gathered information does not become a news account until an editor, perhaps a chain of editors, gives the O.K. This means the privilege of maintaining news source confidentiality is not, strictly speaking, protecting merely the reporter or the reporter’s source; news production managers and the very institutions of a free and unintimidated press are involved as well.
But what is the issue? Is the information in question gathered by a reporter as merely a person or as someone functioning as an agent for the organization that disseminates the information as news? Reason would say, in most cases, the reporter is an employee, given the responsibility to uncover information the employer considers fit for public interest. Who, therefore, qualifies as a reporter, a news editor, a publisher for that matter? In the current technologically advanced world of communication, is a blogger to be considered a reporter, or merely a rumor-monger or internet gossip and/or opinionator? Traditionalists — I am one — would contend internet commentators are individuals writing for personal reasons, uninhibited by organizational principles or understandings and, therefore, are not journalists in the customarily acknowledged sense. It is, however, conceivable that an individual blog or blogger might divulge information so important to public security and safety that an accompanying claim for source ptorection might have to be determined legitimate. Defining free speech and press freedom can become much more complex than it appears.
In any event, law enforcement, other government agencies, legal representatives need not be precluded from seeking explanations from news organizations of published news accounts. News executives and workers ought not be reluctant to provide elucidation for such inquiries. After all, normally, getting government or public attention is what expose news is suppose to be about. Moreover, any legitimate news organization with direct information about a crime planned for committing; the identity of those responsible for an already-committed crime or any action hazardous to public health and safety would be obliged to share that knowledge with proper authorities.
However, the curtain must come down on cooperation when news organizations are asked to reveal the identity of sources who were previously pomised anonymity in exchange for information about possible or past public harm. The question in the case of a pending crime ought not be who provided an alert, but now to prevent the crime. Likewise, if a news organization can provide information for solving a crime or prosecuting corruption, proceeding with law enforcment should be the official response, not demanding who provided information on which to act.
And obtaining such protection must be earned. In other words, the news organization must have become convinced utterly that its source has ample reason to remain unidentified. The privilege cannot be unjustifiably claimed. In fact, it does not regularly attach to most news stories.
Reliable news organzizations can usually release public alerts, embarrassing findings or disturbing disclosures without depending on unidentified sources. The claim that a reporter told by an organzized gang member promised anonymity that he, in fact, committed the nurder for which another person is being tried would be withholding essential crime-solving information, and that, consequently, the promise must be broken so the actual killer gets what justice decrees is so lame it cannot stand. A reporter must risk his life by identifying an organized crime killer? Of course not. An organized gang executioner would be considered credible, especially in such an instance? Probably not.
A clearly weak example of why granting the requested privilege may be dangerous actually demonstrates how difficult it can be to anticipate all the potential implications and ramifications. That, in turn, suggests each case involving the privilege must be considered on its merits. But why try to imagine the problems when concrete, actual examples exist and the most recently prominent is the Judith Miller case, in which Miller, a New York Times reporter, refused to say who confidentially gave her sensitive facts, thereby “leaking” federally classified information. It’s fine example because it involved law-breaking, by the leaker, and asked why the reporter should not be required to break her promise of anonymity in the interest of enforcing the law? After serving jail time for her refusal — essentially defying the courts and grand jury — she negotiated an agreement with her source in which the source agreed to be identified. Law-breakjiing was solved, the principle of confidentiality was preserved and neither the press nor government were seriously compromised in the process. It’s probably how most such conflicts would be resolved. No lasting harm to anyone concerned, except the law-breaker, occurred, strengthening the purpose of a confidentiality protection policy or statute.
News work can be difficult, especially investigative reporting; it is not without imperfections. If always perfect, it would not need to, on occasion, bargain for important, essential information, granting, again on occasion, secrecy to a source. At that point, often, complications are apt to arise, implying countless permutations, not the least being infomation crucial to law enforcement becoming public and, obviously, considered by law enforcement officials crucial to them. Previously established arrangements and agreements can resolve such conflicts, but, probably, not all. Impasse will probably have to be worked out through further negotiation or, ultimately, court proceedings, verifying how news work can, indeed, be imperfect.
Ultimatly, news outlets are not asking for some sort of idle, reckless privilege or power. Rather, the assurance is designed to help law enforcment, good government, a greater possbility of public sadfety and security.
Instead of worrying excessively about reporters misusing the privilege of keeping sources secret, worry more about what would be lost if such a privilege did not exist. Primarily, when assurances to sources that, in exchange for vital information, they will not be identified, become repeatedly broken on demand of authorities, the likelihood of such information becoming public would decline, perhaps even disappear. The public, the community, safety and security aggencies would be the losers. Again, news outlets that abused the privilege would effect the same dismal results and be justifiably discredited as a result, the worst repute a commercial news company can contemplate.
This question is more than a contention between press and official authority. It is an ethical matter of the utmost public condern. News organizations, to achieve their stated goals of serving the community they inform, are required to do so honestly, thoroughly, fairly and credibly. They are obligated to report what they discover fully, correctly, even if that requires imparting information obtained on promise of confidentiality. But they must do so seriously, not arbitrarily or merely conveniently. Those government agencies affected, principally law enforcemet, must reciprocate by acknowledging the trust accorded and proceed on the basis of the information gained with the ability and authority their office and responsibility confers. For either to poach on the other with claims of priority would be wrong and destructive each other’s ability to achieve mutually desired and shared community well-being. As long as the ethics of respnsibility, honesty and purpose prevail, protection for a reporter’s reassonable promise of confidentiality to a source of valuable information should not be summarily denied.
Harry E. Fuller Jr.
Former President, Utah Headliners Chapter,
Society of Professional Journalists
Former SPJ Regional Director
Past SPJ Ethics Committee Chairman
Former Adjuct Journalist Instructor,
University of Utah
Member, Utah Bar Ethics, Disciplinary Committee

I’m adding my name to those speaking in favor of Rule 509. Confidential sources play an important role for journalists to properly do their jobs, which in some cases includes being the public’s watchdog. If a reporter cannot guarantee to a confidential informant that he/she will not reveal their name, the likelihood of that source stepping forward is greatly reduced.
This is not an attempt by journalists to be “above the law.” We simply want to report the truth, even when the entities that our the focus of our stories would rather the truth be kept hidden.
Pat Reavy
Deseret Morning News

Comments of the Reporters Committee for Freedom of the Press
January 22, 2008
General Interest of Signatory
The Reporters Committee for Freedom of the Press is a voluntary, unincorporated association of reporters and editors working to defend the First Amendment rights and freedom of information interests of the news media. The Reporters Committee has provided representation, guidance and research in First Amendment and Freedom of Information Act litigation since 1970, and frequently files amicus curiae briefs in significant media law cases.
The Reporters Committee also serves as a First Amendment clearinghouse, monitoring and compiling information about significant legal and statutory developments affecting journalists and the public’s right to know and produces several publications to inform journalists and lawyers about media law issues, including a quarterly magazine, a bi-weekly newsletter and podcast, and a web log, which is updated several times daily.
The Reporters Committee also operates a hotline to assist journalists with legal problems as they arise in their work. Often, these legal defense requests come from journalists who have been ordered to appear in court or disclose confidential information. This contact with reporters, editors and media lawyers around the country drives home the importance that reporter’s privilege and shield laws play in the everyday performance of journalism.
As both a news organization and an advocate of free press issues, the Reporters Committee has a strong interest in the policies governing the rights of reporters to protect their confidential sources and unpublished material. And it is through this dual role that the Reporters Committee can offer a unique prospective on the need for a reporter’s privilege in Utah.
Overview
The Reporters Committee submits these comments in response to the Request for Comments on the proposed rule of evidence establishing a reporter’s privilege to protect both confidential sources and newsgathering materials. We take this opportunity to urge Utah to join the vast majority of states in adopting protections for the confidentiality of sources and newsgathering materials of its reporters.
The problem the Advisory Committee seeks to address is very real. In recent years, Utah news reporters have not been exempt from the recent onslaught of subpoenas. They have been subpoenaed in criminal cases and civil cases alike. They have faced subpoenas calling for the identity of confidential sources, unpublished outtakes, and eyewitness reports. See Edward L. Carter, Reporter’s Privilege in Utah, 18 BYU Journal of Public Law 163, 173-179 (2003). Because Utah is among the very few states without a legislative shield law or judicially recognized evidentiary rule governing such subpoenas, the one thing that unifies all of the requests is that the uneven application of uncertain rules results in time consuming, expensive legal battles that ultimately threatened the neutrality of the reporters and their ability to gather the news.
The proposed Rule 509 would provide much of the protection needed for journalists to carry out their essential role in the state of Utah. The rule provides judges the opportunity to evaluate each subpoena with a clearly defined test complete with specific guideposts to steer their hands in determining the proper scope of protection. Most importantly, the rule protects the people of Utah. By protecting the news media’s ability to report the news, the Supreme Court can ensure that important issues continue to enter the public discourse and preserve the proper functioning of the democracy.
Utah is now one of just three states that do not protect the reporter’s privilege by statute, court rule, or appellate court opinion. It is clear that the time has come for Utah to join the vast majority of jurisdictions in offering the basic protections necessary to protect the news media’s right to report the news and the public’s right to know. Proposed Rule 509 is a positive step towards preserving the news media’s contribution to society, and, although the proposed rule is still not perfect, the Reporters Committee applauds the Advisory Committee for attempting to bring Utah to the national forefront in protecting these rights.
Comments
Presented the opportunity for comment, the Reporters Committee would like to highlight some of the particular benefits and drawbacks of the proposed Rule:
I. The flexible definition of “news reporter” protects the dissemination of all news information.
The Advisory Committee wisely defined “news reporter” broadly in drafting the proposed rule, extending its protections to all forms of journalism. The 9th U.S. Circuit Court of Appeals shrewdly remarked that what “makes journalism journalism is not its format, but its content.” Shoen v. Shoen, 5 F. 3d 1289, 1293 (9th Cir. 1993). In picking up this theme, the Committee explicitly protects all journalists, from the local newspaper police beat reporter to the freelance magazine writer to the book author to the documentary filmmaker to the part time Internet citizen journalist.
As the Advisory Committee Note explains, “the rule incorporates a relatively broad and flexible definition of news reporter to accommodate the ever-changing methods of expression and publication. While there are not many ‘lone pamphleteers’ still functioning, they may have modern-day counterparts on the internet.” The Reporters Committee commends the Advisory Committee in presenting a forward-thinking definition in this current age of technological advancement. The definition appreciates that there is no difference between news information disseminated through traditional media and news information disseminated via the Internet. And, given the lightning fast pace in which new technologies are accepted by the masses, it is imperative to extend protections to those future means of communication not yet in use.
The strength of the rule though is in its careful wording that stops well short of overextending the privilege to non-journalists. By demanding that any news reporter refer only to those “gathering information for the primary purpose of disseminating news to the public,” the rule carefully filters out those individuals who are not actively engaged in journalism. This distinction becomes especially important in considering the Internet. In the age of the Internet, anyone can be a journalist, but certainly, not everyone is. This definition toes that line and guarantees that citizen journalists receive protection, but only where appropriate.
II. The proposed rule properly helps ensure that the pipeline between news reporters and confidential sources will not run dry.
The proposed rule does a great deal to maintain the relationship between news reporters and their confidential sources. In offering a near absolute privilege for confidential source information, the Advisory Committee can do a great service to the people of Utah by joining neighboring states in carefully guarding the free flow of highly sensitive information.
Utah will not be alone in recognizing the need to protect this valuable relationship. Eleven of the 33 states with shield laws, including neighboring Arizona and Nevada, go even further than Proposed Rule 509, offering an absolute privilege to confidential sources. For example, in Arizona, a news reporter “shall not be compelled to testify or disclose in a legal proceeding… the source of information procured or obtained by him for publication.” See A.R.S. § 12-2237 (1960). Similarly, in Nevada, no news reporter “may be required to disclose any published or unpublished information obtained or prepared by such a person in such a person’s professional capacity.” N.R.S. § 49.275 (1975).
The Committee need not fear that such protections will exclude a large amount of evidence from the courtroom. In practice, the protections for confidential source information will only be at play in rare, but exceptionally important situations. Guided by customs and ethics codes demanding that news reporters identify sources wherever possible and the recognition that overuse of unnamed sources negatively affects a reporter’s credibility, reporters very rarely rely on confidential sources in the day-to-day performance of their job. When reporters do promise confidentiality, it is most often because the subject matter of the news is highly sensitive and exposure could result in dire consequences for the source.
Despite its relatively infrequent application, a rule offering strict protection of the confidential source relationship has considerable dividends. Maintaining the relationship between journalists and confidential sources ensures that some of the most important news will continue to reach the public discourse rather than dry up at the source. Within just the last few years alone, confidential sources helped expose the mistreatment of veterans at the Walter Reed Army Medical Center, the Abu Ghraib prison scandal and steroid abuse in our national pastime.
Given the dangerous implications of assaulting the confidentiality of sources, the Reporters Committee advocates an absolute privilege for confidential source information. The proposed rule comes very close to reaching that standard, demanding disclosure only in the limited and exigent circumstances where identification is “necessary to prevent substantial injury or death.” Any exception to the rule, even if it is well-intentioned, is open to potential misuse and abuse in its future application especially since the Advisory Committee offers no explanatory note to clarify how attenuated the substantial injury or death might be to sever the application of the exception. At a minimum, the Reporters Committee suggests that the Advisory Committee include the word “imminent” in the exception’s language to fortify the strength of the protection. More importantly though, such an exception is unnecessary in application. A news reporter will not stand idly by, sitting on information that would prevent the death of another citizen.
III. The qualified privilege applying to unpublished news information offers uniformity in the law and keeps news reporters from becoming the investigative arm of law enforcement and civil litigants.
Although subpoenas involving confidential sources ordinarily garner the boldest headlines and the most public attention, the vast majority of subpoenas served on reporters do not involve confidential sources. These subpoenas regularly seek reporters’ notes, e-mails, recordings, phone records, computer files, drafts, outtakes and unpublished photographs and represent a significant intrusion into and burden on the editorial process.
In the interest of remaining consistent with current Utah state jurisprudence, the Advisory Committee points to the factors the 10th U.S. Circuit Court of Appeals outlined in Silkwood v. KerrMcGee Corp. to consider when addressing the qualified privilege. 563 F.2d 433 (10th Cir. 1977). These factors become important not only because they offer uniformity, clarity and consistency in the law, but also because they prevent news reporters from becoming an investigative arm of law enforcement and civil litigants.
Oftentimes, subpoenas for unpublished news information are supported by liberal discovery rules that allow litigants to engage in fishing expeditions covering information that is only marginally relevant to the issue at hand. By demanding that the information sought goes to the heart of the matter and is unavailable from alternative sources, the rule prevents lazy prosecutors and civil litigants from abusing news reporters as shortcuts in the litigation process.
Conclusion
The Reporters Committee urges Utah to join the majority of states in protecting the confidential sources and newsgathering materials of news reporters. Although Proposed Rule 509 certainly could go further in the protections it offers, it does represent a significant step in the right direction towards protecting news reporters from burdensome, costly subpoenas and the public right to know.
Respectfully submitted,
Lucy A. Dalglish, Esq.
Executive Director
Gregg P. Leslie, Esq.
Legal Defense Director
Matthew B. Pollack, Esq.
Reporters Committee Legal Fellow
The Reporters Committee for Freedom of the Press
1101 Wilson Boulevard, Suite 1100
Arlington, VA 22209
703.807.2100
http://www.rcfp.org