“News Source Shield Law” Treats Journalists as a Special Interest

By Steve Klein

The Merriam-Webster Dictionary entry for "journalism" begins with two terse, distinct definitions: "a: the collection and editing of news for presentation through the media[;] b: the public press[.]" Under the First Amendment, the protection of "the freedom of . . . the press" appropriately tracks the first, broader definition. Americans have the right to gather information and publish it in media of their choosing (be it with a printing press or a YouTube video) whether acting as a professional (or, at least, institutional) journalist or not.

House Bill 91, a "news source shield law" that is now before the Wyoming Legislature, relies on a narrower definition, and would prevent the government from forcing institutional journalists to disclose their sources except in narrow circumstances such as when the "[f]ailure to disclose the news information will create an imminent risk of death or serious bodily harm[.]" It is a revised version of a bill that failed in the legislature two years ago.

In the new bill, journalism is:

gathering or obtaining news for publication in or with a newspaper, magazine, news media, press association, wire service, website or other professional medium or agency that has as one (1) of its principal functions the processing and researching of news intended for publication or for broadcast by a radio station or television network[.]

One must also be "employed by or . . . otherwise in a news gathering capacity with" such a "professional medium or agency" to qualify.

The result? Professional journalists get special protection, while regular citizens do not. If a reporter at the Casper Star Tribune publishes an anonymously sourced story about corruption in the government, he generally cannot be forced in court to disclose his sources. But if a citizen who does not regularly gather or obtain news presents the same anonymously sourced information through his personal Twitter account, he does not qualify for protection and can be compelled to reveal his sources in court. (Refusing to do so is generally punished with contempt, and if the bill passes the citizen journalist may be jailed until he relents or until the government gets tired of trying.)

Concededly, protection strictly for professionals infects many shield laws across the country, some of which date back the better part of 100 years. But the timing could not be worse to consider such an antiquated law in Wyoming. The state's institutional press is small, and the work of professional journalists is bolstered by citizen reporting on social media and from nonprofit organizations. The latter, in particular, are criticized as biased, but that carries less and less weight from the institutional press in Wyoming and beyond. Regardless, professional journalists have done nothing to warrant special legal protections over those provided to a citizen blogger.

What's left of Wyoming's institutional press came out in force for the bill two years ago. I am curious as to their efforts this year and if anyone has been jailed or even threatened with it in Wyoming courts over the revelation of sources. Of course, anonymous speakers have been fined and threatened under the state's campaign finance disclosure regime—laws championed by two of the very sponsors of the News Source Shield law, Rep. Dan Zwonitzer and Sen. Tara Nethercott—but that irony is perhaps a post for another day. From the outset, professional journalists who claim to hold special interests in check should not seek special legal protections for themselves, because that's what special interests do.