Protected or Not? Non-Traditional Journalists and Shield Laws

by Gionna Kinchen

A shield law is defined by Britannica as “any law that protects journalists against the compelled disclosure of confidential information, including the identities of their sources, or the forced surrender of unpublished written material collected during news gathering, such as notes.” Shield laws exist in 41 of the 50 states in America, but the specific protections provided vary greatly state by state. One of the largest areas of variability in these laws lies in the eligibility of individuals to receive shield law protections. These discrepancies call into question: what defines a journalist?

The state of New Jersey’s shield law is considered by many to cover a large range of different types of journalists, including traditional and non-traditional. The law provides absolute protection in civil cases and a qualified privilege at the court’s discretion in criminal cases for any “person engaged on, engaged in, connected with, or employed by news media for the purpose of gathering, procuring, transmitting, compiling, editing or disseminating news for the general public or on whose behalf news is so gathered, procured, transmitted, compiled, edited or disseminated,” according to N.J. Stat. §§ 2A:84A-21 to 21.8. This means that not only writers, but also producers, editors, reporters, broadcasters and the like are all protected. It is not a requirement that one is a paid employee of a news source to be protected, according to the Digital Media Law Project. However, the law requires one to be “connected with” the news media, which, according to the law, includes “newspapers, magazines, press associations, news agencies, wire services, radio, television or other similar printed, photographic, mechanical or electronic means of disseminating news to the general public.” Therefore, to be protected one does not have to be employed or associated with a mainstream news source; anyone who reports news through any of the means listed above is protected. According to the Digital Media Law Project, this includes “periodicals online, Web radio, regular podcasts … [and] blogs.”

California’s shield law is an example of one that provides fewer protections for non-traditional journalists. California’s shield law states that any “publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed … [in addition to any] radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed” is protected under shield law. Although the law itself does not mention online journalism,  O’Grady v. Superior Court (2006) established that the California shield law applies to people that gather or report news “for dissemination to the public, regardless of whether the publication medium is print or online,” according to the Digital Media Law Project. The case stated that California shield law protects “open and deliberate publication on a news-oriented Web site of news gathered by that site’s operators,” but does not necessarily protect “the deposit of information, opinion, or fabrication by a casual visitor to an open forum such as a newsgroup, chatroom, bulletin board service, or discussion group.” The case also determined that, unlike New Jersey’s shield law, California’s shield law does not protect blogs, due to the “rapidly evolving and currently amorphous meaning” of the word “blog.”

Unlike in the state of New Jersey, Californian journalists, as well as journalists in 34 other states, are given a court-recognized privilege in addition to shield law protection. Therefore, while an individual is not eligible for protections under California’s shield law, they may still be eligible to receive some protection based on the First Amendment of the United States Constitution. When applying the qualified privilege, Californian courts will use a balancing test that consists of the following questions: “(1) whether the reporter is a party to the litigation; (2) the importance of the information to the case; (3) whether other sources for the information are available; (4) the importance of protecting confidentiality; and (5) the strength of the case of the party seeking disclosure,” according to the Digital Media Law Project.

The state of Florida is another example of a state with a shield law as well as court-recognized privilege for journalists, however protections under both are narrowly tailored. In Florida, for one to qualify for shield law protections and qualified privilege, one must be a “professional journalist,” meaning “a person regularly engaged in collecting, photographing, recording, writing, editing, reporting, or publishing news, for gain or livelihood, who obtained the information sought while working as a salaried employee of, or independent contractor for, a newspaper, news journal, news agency, press association, wire service, radio or television station, network, or news magazine,” according to Fla. Stat. § 90.5015. Florida’s shield law excludes many of the non-traditional journalists covered in New Jersey and California, including amateur journalists and bloggers, or anyone who does not receive monetary compensation for their work. In addition, the wording of the law makes it unlikely that any journalists employed by an online publication would be covered, according to the Digital Media Law Project.

In Massachusetts, there is no shield law. However, journalists may be protected under Massachusetts Common Law. Since Common Law is made by the judge, it operates on a case-by-case basis and has no official guidelines, and therefore may be subject to inconsistencies and ambiguities, according to the Digital Media Law Project. In the case Summit Technology, Inc. v. Healthcare Capital Group, Inc., 141 F.R.D. 381, 384 (D. Mass. 1992), it was decided by a federal court interpreting Massachusetts law that “an investment analyst who wrote a report for his job was covered by the common law privilege for reporters even though he was not a part of the ‘organized press,’” according to the Digital Media Law Project. However, this decision is not legally binding in Massachusetts courts, and therefore may or may not influence the way Massachusetts rules on future cases of this nature. Massachusetts does however recognize a qualified reporter’s privilege, much like Florida and California.

shield laws have been shown to have an extremely large degree of variability depending on the state. While states like New Jersey and California have extremely broad views of who is qualified for shield law Protections, other states like Florida have extremely restrictive shield law eligibility requirements, and a handful of states, like Massachusetts, have no shield law at all and provide nearly no protection for journalists. Many journalists have pushed for a federal shield law to combat these discrepancies, but at this point in time, no federal shield law exists.

 

Bibliography

“California Protections for Sources and Source Material | Digital Media Law Project.” Digital Media Law Project, Digital Media Law Project, www.dmlp.org/legal-guide/california-protections-sources-and-source-material.

“California Shield Law.” Bill Text – SB-558 Reporters’ Shield Law., Bill Text, leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201320140SB558.

“California Shield Law.” FIRST AMENDMENT COALITION, FIRST AMENDMENT COALITION, firstamendmentcoalition.org/california-shield-law/.

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT. JASON O’GRADY Et Al., Petitioners, v. THE SUPERIOR COURT OF SANTA CLARA COUNTY, Respondent; APPLE COMPUTER, INC., Real Party in Interest. Digital Media Law Project, 26 May 2006.

“Florida Protections for Sources and Source Material | Digital Media Law Project.” Digital Media Law Project, Digital Media Law Project, www.dmlp.org/legal-guide/florida-protections-sources-and-source-material.

“Massachusetts Protections for Sources .” Digital Media Law Project, Digital Media Law Project, www.dmlp.org/legal-guide/massachusetts-protections-sources-and-source-material.

“Massachusetts Protections for Sources and Source Material | Digital Media Law Project.” Digital Media Law Project, Digital Media Law Project, www.dmlp.org/legal-guide/massachusetts-protections-sources-and-source-material.

“New Jersey Protections for Sources and Source Material | Digital Media Law Project.” Digital Media Law Project, Digital Media Law Project, www.dmlp.org/legal-guide/new-jersey/new-jersey-protections-sources-and-source-material.

“2013 New Jersey Revised Statutes :: Title 2A – ADMINISTRATION OF CIVIL AND CRIMINAL JUSTICE :: Section 2A:84A-21 – Newspaperman’s Privilege.” Justia Law, Justia Law, 2019, law.justia.com/codes/new-jersey/2013/title-2a/section-2a-84a-21/.

“Reporters’ Privilege Compendium: California Shield Laws Guide – RCFP.” The Reporters Committee for Freedom of the Press, The Reporters Committee for Freedom of the Press, www.rcfp.org/privilege-compendium/california/.

“Shield Laws in the United States.” Wikipedia, Wikimedia Foundation, 5 Feb. 2020, en.wikipedia.org/wiki/Shield_laws_in_the_United_States#State_laws.

“Summit Technology, Inc. v. Healthcare Capital Group, Inc.” Legal Research Tools from Casetext, Casetext, 19 Mar. 1992, casetext.com/case/summit-technology-inc-v-healthcare-capital-group-inc.

“The 2019 Florida Statutes.” Online Sunshine: Official Internet Site of The Florida Legislature, The Florida Legislature, 9 Apr. 2020, www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&Search_String=&URL=0000-0099/0090/Sections/0090.5015.html.

The Editors of Encyclopaedia Britannica. “Shield Law.” Encyclopædia Britannica, Encyclopædia Britannica, Inc., 28 Nov. 2016, www.britannica.com/topic/shield-law.

United States District Court, D. Massachusetts. “Summit Technology, Inc. v. Healthcare Capital Group, Inc.” Legal Research Tools from Casetext, Casetext, 19 Mar. 1992, casetext.com/case/summit-technology-inc-v-healthcare-capital-group-inc.

 

 

The Electoral College and the First Amendment

by Iris Wexler

On Wednesday May 13th, 2020,  the U.S. Supreme Court heard oral arguments on Chiafalo v. Washington State (combined with another similar case in Colorado.)  The issue in these cases is basically whether the electors who comprise the electoral college have a right to vote their conscience rather than the will of the voters they represent. https://www.scotusblog.com/2020/05/argument-analysis-in-a-close-case-concerns-about-chaos-from-faithless-electors/   

 How this case is decided  could have a profound effect on the upcoming 2020 presidential election. In Chiafalo v. Washington case the high Court will decide whether state laws punishing electors for voting differently than is mandated by state law violates the First Amendment right to free speech and expression. The Chiafalo v. Washington case is pending adjudication of the United States Supreme Court 2019-2020 No. 19-465.

 “Under the current law of Washington State, presidential candidates in each political party are required to nominate for the Electoral College electors from its party equal to the number of representatives and senators allotted to the state. Washington follows a “winner-take-all” electoral system, meaning that all of a state’s electoral votes go directly towards the winner of the popular vote in that state. The nominees are required to vote for the candidate running in their party, and nominees who fail to vote for their candidate is subject to a fine up to $1,000” (Oyez, paragraph 2). 

The argument of the case is whether there should be enforcement towards voting laws in Washington state revolving around “faithless electors”. The law would entail threatening electors who vote contrary to their party’s candidate. The issue of this is whether “faithless electors” should receive a fine up to $1,000 if voting contrary to their party, following potential punishment or replacement. The highly anticipated decision that will be made by The Supreme Court is forecasted to be presented by the upcoming 2020 United States presidential election. 

The case arose after the 2016 presidential election took place when petitioners Peter Bret Chiafalo, Levi Jennet Guerra, and Esther Virginia John were nominated as a few of the presidential electors of the Democratic Party in Washington State. When Clinton/Kaine won Washington state’s popular vote, the electors were entitled to cast their ballots based on the winners of the election. Instead, for President, they voted for Colin Powell and different candidates for Vice President. The electors who violated the requirements were fined $1,000 by Washington Secretary of State for failing to vote for the nominee of their party as well as violating the state’s law.  

The results based on the national election; it was evident that Donald Trump would be our next president. Some electors and appellants nationwide announced that they would not vote for Clinton nor Trump and would attempt to prohibit Trump from receiving the minimum number of votes from the Electoral College to prevent him from becoming president. Stated in the Constitution, if neither candidate receives a majority of the Electoral College votes than it is the House of Representatives’ responsibility to decide the next president. 

In response, the electors disputed the fines to an administrative law judge, stating that the fine is violating the First Amendment and it is unconstitutional. The electors believe that the fine is violating their First Amendment rights because casting a vote is their given choice and it is exercising their freedom of speech and press. They believe voting is a form of speech under the First Amendment and it is their fundamental right entitled to full protection under the United States Constitution. “The electors argued that the constitutional provisions governing presidential elections give entitlement to electors to have the right to vote for whomever they wish regardless of the state’s law. The electors also claimed a First Amendment right to veto the preferences of Washington’s voters. The Washington State Courts responded by rejecting these arguments. The electors precisely asked the Court to rule on First Amendment issues but lacked support in their statements” (Public Citizen 1). “The judge approved the imposition of the fine due to the electors having no authority to rule on constitutional matters upon the judge. The appellants appealed to the Thurston County Superior Court. In response, the court declared the Secretary of State. The appellants proceeded to direct review on appeal to The Washington Supreme Court” (Ballotpedia, 2019).

“On May 23, 2019, Washington Supreme Court upheld the ruling of the trial court, stating that the fines were constitutional under Article II, section 1, that the electors were not granted discretion in casting their votes under the Twelfth Amendment nor did the fine impede with a federal function. An elector acts under the authority of the State, meaning that a First Amendment right is not considered violated when a state imposes a fine based on an elector’s violation of their pledge” (Ballotpedia, 2019).  

The case was scheduled to be heard among the United States Supreme Court before the October 2019-2020 term. The oral argument of this case was initially scheduled for April 28th, 2020. On April 3rd, the U.S. Supreme Court announced that the trial would be postponed due to following health guidance in response to the severity of COVID-19.

The argument of this case presents an important unresolved question of federal constitutional law. The United States Supreme Court is being asked whether enforcement of this law is unconstitutional because a state does not have the power to enforce how an elector must cast their ballot, and if it violates the First Amendment if a state penalizes an elector for exercising their constitutional discretion. 

In conclusion, the questions that are being tackled is if there should be a law issued by the state requiring presidential electors to vote based on the direction of the state’s law and if they should be subject to a fine. If the U.S. Supreme Court rules that the state’s electors have the right to vote their conscience without penalty, it could change what the electors do, and theoretically impact future electoral college outcomes. The Supreme Court is being asked to resolve a critical question involving the foundation of our democracy before the 2020 election to avoid possible chaos, resolve uncertainties, and confusion that could arise post-election litigation. 

 

Work Cited

“Chiafalo v. Washington.” Oyez, www.oyez.org/cases/2019/19-465. Accessed 10 Mar. 2020.

Service, Wire. “Supreme Court to Hear Washington Case of ‘Faithless’ Electors.”HeraldNet.com

,HeraldNet.com, 17 Jan. 2020, www.heraldnet.com/news/supreme-court-to-hear-

washington-case-of-faithless-electors/

“Chiafalo v. Washington.” Ballotpedia, ballotpedia.org/Chiafalo_v._Washington.

Barnes, Robert. “Supreme Court to Weigh Whether States, Including Washington, Can 

Punish ‘Faithless’ Electors.” The Seattle Times, The Seattle Times Company, 17 Jan. 2020 http://www.seattletimes.com/nation-world/supreme-court-will-hear-whether-states-may-punish-electoral-college-members-who-ignore-popular-vote-results/

Docket for 19-465, http://www.supremecourt.gov/docket/docketfiles/html/public/19-465.html.

“Chiafalo v. Washington.” Public Citizen, www.citizen.org/litigation/chiafalo-v-washington/.

Hamm, Andrew. “Chiafalo v. Washington.” SCOTUSblog, www.scotusblog.com/case-files/cases/chiafalo-v-washington/.

 

Porn Warnings in Utah

 

When someone goes onto a website like Pornhub to view pornography, they usually know what they’re in for. Let’s be honest, most of the time the video titles can give a pretty good idea of what the viewer is about to watch. However, in Utah, they’re taking it a step further.

Now when someone goes to watch porn in the state of Utah, not only will they get the no-brainer video title, but they will also get a warning label to really drive the point home of what’s coming next, thanks to H.B. 243.

H.B. 243 just passed through Utah’s State Legislature on April 1, and it did so “without Governor Gary Herbert’s signature” (Porn warning labels bill becomes Utah law amid controversy).

The new law “allows the attorney general or a member of the public to bring an action against a person who distributes pornography without a visible warning or specific searchable text for a website” (HB 243).

The label must be a sentence long and it must warn the viewer about potential to harm minors. If porn producer’s don’t comply, they’ll face a “$2,500 penalty” (Porn warning labels bill becomes Utah law amid controversy).

Originally, the law was targeted toward all pornographic material, but was narrowed down to porn that is considered legally obscene after facing criticism that the measure could be seen as unconstitutional.

Considering that porn is protected by the First Amendment, this bill has faced backlash from the Porn industry. Mike Stabile, a representative with the Free Speech Coalition, an adult entertainment group, has made it clear that he finds this law to be a grotesque overstep on the First Amendment.

“The law may be narrowed, but the chilling effect on speech is huge — people not speaking or creating out of fear of prosecution,” Stable has said. (Pornography labeling bill passes Utah Legislature but could face First Amendment legal challenges)

In order for porn to lose First Amendment protection, it has to fall under two categories: child pornography and obscenity (Pornography & Obscenity).

Unfortunately, the problem with obscenity is subjectivity. Anyone can decide what they consider to be obscene, especially under this new law.  Although this law only applies to “hardcore material” porn producers fear that this legislation has the potential to “unfairly force porn producers to defend themselves in court because it allows private citizens as well as the state to file complaints” (Porn warning labels bill becomes Utah law amid controversy).

The entire purpose of the bill is to protect children. Republican Representative Brady Brammer, a sponsor of the law, has said “the measure is aimed at helping people worried about the widespread availability of porn online and how easily children can find it.” (Pornography labeling bill passes Utah Legislature but could face First Amendment legal challenges)

However, a judge would be the deciding factor in determining whether or not the porn qualifies as obscene. Ultimately, producers could avoid the penalty by “showing that they have included the label most of the time.”(HB 243) Unfortunately, this is where the problem of subjectivity comes into play.

For years U.S. Supreme Court Justices have struggled with pinpointing what is and isn’t obscene. It began in 1957 with Roth v. United states where it was ruled “in a 6-to-3 decision written by Justice William J. Brennan, Jr., that obscenity was not within the area of constitutionally protected speech or press.” (Roth v. United States)

Then in the 1964 decision for Jacobellis v. Ohio, Justice Potter Stewart could not even provide a definition, he just simply said, “But I know it when I see it, and the motion picture involved in this case is not that.” (Jacobellis v. Ohio)

To decide whether or not Jacobellis’s conviction should be reversed, the Supreme Court of Ohio looked to the obscenity test, which the court defined as “whether, to the average person, applying contemporary community standards, the dominant theme of the material, taken as a whole, appeals to prurient interest.” (Jacobellis v. Ohio)

Today, courts utilize the three-prong obscenity test, or the Miller test, which was developed in the case of Miller v. California. The test decides on obscenity by determining:

  • Whether “the average person, applying contemporary community standards”, would find that the work, taken as a whole, appeals to the prurient interest,
  • Whether the work depicts or describes, in a patently offensive way, sexual conduct or excretory functions specifically defined by applicable state law,
  • Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific values (Miller v. California)

In Utah, deciding if material is considered pornographic is eerily similar to the obscenity test. According to the state’s criminal code, Utah does not require an expert witness to testify for or against the fact the material or performance is or is not harmful to adults or minors or is or is not pornographic.

Their test for deciding whether material is pornographic is as follows:

  • The average person, applying contemporary community standards, finds that, taken as a whole, it appeals to prurient interest in sex.
  • It is patently offensive in the description or depiction of nudity, sexual conduct, sexual excitement, sadomasochistic abuse, or excretion; and
  • Taken as a whole it does not have serious literary, artistic, political or scientific value. (76-10-1203. Pornographic material or performance)

While Brammer has expressed before the law passed that “he knows that it will most likely face a legal challenge,” (Pornography warning label bill clears House committee) no challenges have come thus far.

But this law does beg the question, what is considered obscene, and is protecting youth from porn more important than infringing on the First Amendment?

Sources

https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/adult-entertainment/pornography-obscenity/

https://supreme.justia.com/cases/federal/us/413/15/#tab-opinion-1950401

https://supreme.justia.com/cases/federal/us/413/15/#tab-opinion-1950401

https://le.utah.gov/~2020/bills/hbillenr/HB0243.pdf

https://www.sltrib.com/news/2020/04/04/porn-warning-labels-bill/

https://www.sltrib.com/news/politics/2020/02/12/pornography-warning-label/

https://www.oyez.org/cases/1956/582

https://www.stgeorgeutah.com/news/archive/2020/03/10/apc-pornography-labeling-bill-passes-utah-legislature-but-could-face-first-amendment-legal-challenges/#.Xo_CbshKjIW

https://le.utah.gov/xcode/Title76/Chapter10/76-10-S1203.html?v=C76-10-S1203_1800010118000101

 

 

 

More Thoughts on the U.S. Supreme Court’s Term/Analysis

Last week the Court ruled, in another 5-4 decision, that the state of California cannot force pregnancy crisis centers to post information about where and how a woman can get an abortion. (See the article below.) The state passed the FACT Act, concerned that economically challenged and uneducated women would not be aware that free abortion and pregnancy related services are available to them. The act, which was upheld by the 9th Circuit Court of Appeals, was struck down by the U.S. Supreme Court on the grounds that the state of California was violating the First Amendment rights of these private crisis centers by forcing them by law to engage in “compelled speech.” Defenders of the law also accused the centers, some of which are unlicensed, of engaging in deceptive advertising.

Both this decision and the prior one upholding the right of a baker to refuse to make a designer wedding cake for a gay couple on the grounds of religious freedom, deal with the issue of compelled speech. Clearly, the states, in this case California and Colorado, cannot mandate through legislation, certain types artistic or even commercial speech. Regardless if one agrees or disagrees with the message in the speech, these decisions are important in clarifying the free speech rights of private citizens and organizations. First, the Masterpiece Cake case expands the notion of what constitutes speech that is considered artistic–in this case a cake.

Secondly, the argument that one party must be ‘compelled’ by the state to engage in speech in order to not discriminate against another party’s rights did not hold sway by the majority of the Court, however slim. The state cannot assume that every person has to create art (which is speech) for every occasion or inform every pregnant woman that she can receive a free abortion just because gay marriage and abortion are legally protected rights.

To some, this seems irreconcilable. How can this be, they ask? Consider that anti-discrimination laws punish or prevent action, not speech, that would disenfranchise certain people.  While Mr. Phillips does not have to celebrate gay marriage by creating a cake for the two men who walked into his shop, he also cannot stop them from getting married.  Legal observers can only conclude that affirmative rights acknowledged or given by the state, such as marriage equality or abortion, are not eroded by upholding free speech that does not promote them.

Editors Note June 4, 2018

In a 7-2 decision the Supreme Court ruled that the Colorado Civil Rights Commission violated a baker’s First Amendment rights to free speech when it punished Jack Phillip’s refusal to bake a custom-made cake for a gay couple who were getting married. Phillips objected to baking the cake, which he called an ‘artistic creation,’ on the grounds that gay marriage is against his religious beliefs. In a decision authored by Justice Anthony Kennedy, Court said the Colorado Civil Rights Commission showed impermissible hostility to religion, the practice of which is protected by the First Amendment.
https://apnews.com/459b5e723c4c47ffa40df839097503c9/Justices-side-with-Colorado-baker-on-same-sex-wedding-cake