Column: Supreme Court upholds shield law for journalists
Popular and predictable as it may be to criticize the members of Nevada’s Supreme Court, I have come today to praise them.
They got it right. They upheld the state’s “shield law” for journalists, something that is vitally important to the way reporters gather information.
I made fun of the Supreme Court several months ago when it got this case initially, although it was really only two members of the court who couldn’t figure out what the word “publish” meant.
Nevada High Patrol troopers had found a guy, drunk, sitting next to his pickup truck in Las Vegas. The guy denied he had been driving the truck, and he didn’t have the keys. So the troopers didn’t arrest him.
Unfortunately, the guy got in the truck later and drove down Lake Mead Boulevard, where he managed to kill himself and four other people.
An NHP officer explained to a Las Vegas reporter, Glenn Puit, why they hadn’t arrested the drunk. Puit wrote about it in the Las Vegas Review-Journal.
When the family of the victims sued, the trooper said he couldn’t remember exactly what he had told Puit. So their lawyers wanted to put Puit on the witness stand to testify about his interview with the trooper.
Puit declined to testify, citing the state’s shield law. It gives journalists broad protection from being called into court to testify about their stories or what people might have told them that didn’t get into the stories.
The idea behind the law is to prevent lawyers from punishing reporters and their sources by dragging them into court whenever they write about something controversial. (As I explained in the earlier column, this isn’t about somebody suing the newspaper itself for libel. It’s about a lawyer using a reporter to get to somebody else, like in Puit’s instance.)
A shield law – and Nevada has one of the strongest in the nation – is a great privilege for journalists. Like other privileges, it carries a heavy responsibility – the duty of journalists to shine a light into the dark corners of their communities.
That’s why it exists. People feel comfortable telling reporters the secrets of the world because they are confident the reporter won’t be called into court and forced to reveal the name of his source.
This doesn’t always work well. Reporters do get dragged into court, and sometimes they’re willing to go to jail rather than break a promise to protect someone’s anonymity.
So it’s not something that reporters take lightly. For example, if someone called me today to say he’d committed a crime, I wouldn’t promise to keep his name a secret. In fact, somebody better have a damn good reason before I make the decision that I would go to jail rather than give up their name.
Anyway, I’m a little off track here, because Puit never promised to keep anybody’s name secret. He put it all right there in the story, and that became the issue.
The lawyers argued that because Puit had written about this case, naming the trooper and quoting him, then the reporter had waived his right to confidentiality. If this is such a big secret he can’t testify about it in court, the reasoning went, then how could he put it in the newspaper?
Well, that seems a bit absurd, doesn’t it? But the first time a panel of Supreme Court justices heard the argument, they bought it.
They said it was like a doctor-patient confidentiality, or a lawyer-client confidentiality. If the patient or the client has revealed the secret publicly, then there’s no need for confidentiality any more.
In its new ruling, however, the Supreme Court’s decision, written by Justice Myron Leavitt, catches a distinction.
Doctors and lawyers keep their secrets in order to protect the privacy of the patient or the client. Journalists, though, keep the secrets not only to protect the source, but because they are supposed to be performing a greater deed for society in exposing the truth.
Because of this additional responsibility, Leavitt reasoned, it is the journalist’s choice whether to waive confidentiality. If he doesn’t, he doesn’t.
“While confidentiality may be one important factor in communications between a journalist and the source of information, confidentiality is not the defining factor in the existence of the reporter’s privilege, nor does confidentiality play a role in determining whether a reporter has waived the privilege,” Leavitt wrote.
Throughout the opinion, the Supreme Court does the one thing that we often accuse lawyers of forgetting. It interprets the shield law to mean exactly what it accomplishes – shield reporters from revealing information in court. It doesn’t pick at the language for holes and weaknesses and loopholes in order to find a way to give the law some arcane, unintended meaning.
That was exactly what the earlier ruling had done. Somehow, two justices had been unable to define “publish” – they thought it didn’t apply to what reporters do with the things they write in newspapers – and the whole thing had to be reviewed.
This time, the Supreme Court got it right.
Barry Smith is managing editor of the Nevada Appeal.