Why Vt. Journalists Need a Shield Law
Opinion / Mar. 16, 2017 9:03am EDT
When you want to find out what’s going on in our state, nation and world, you most likely turn to the news media, which, for all their flaws, perform the vital function in a democracy of keeping the government accountable and the people informed. Yet the news media are under siege. Their economic underpinnings—classified and display advertising—have shriveled and migrated online. The role of the news media in holding those in power accountable is under attack, particularly by the current administration in Washington.
Most reporters I know are doubling down, trying to be more responsible, more hard-digging, more independent and more careful in checking their biases at the door as they go about their work. It’s the only way to maintain or regain the public trust so vital to the work. This obviously is important in coverage of politics and government. It’s just as important in reporting on the criminal justice system.
That’s why it was so disturbing to see, during the recent sex-crimes case against former Vermont state Sen. Norm McAllister, three journalists from the Burlington weekly Seven Days and one from Vermont Public Radio subpoenaed to testify for the prosecution and against McAllister. I covered the McAllister case for The Associated Press and have reported on others like it. I can tell you it’s really challenging in cases like this, and takes a lot of thought and concentration, to walk the fine line of fairness and evenhandedness toward both the accusers and the defense.
Journalists simply can’t be asked to join the team for either side in these cases—not if we want to maintain and promote the independent news reporting that keeps us informed about the workings of the criminal justice system. That’s why Vermont needs to join the roughly 40 other states with journalists’ shield laws that prevent reporters in all but the rarest of cases from being called to testify.
Franklin County Deputy State’s Attorney Diane Wheeler tried to justify calling Seven Days reporter Mark Davis, columnist Paul Heintz and editor Matthew Roy as witnesses, telling another Seven Days reporter, Terri Hallenbeck, “It’s not the fact that they are journalists. It’s the fact that they are witnesses.”
That’s just silly. The only reason they came to be “witnesses” was because they are journalists; otherwise, they’d have had no reason to contact McAllister or, in Heintz’s case, one of his alleged victims. In order to maintain the trust of their interview subjects, as well as their readers, they needed to be able to do that work without any expectation that they would become tools either of the defense or of the prosecution.
Put yourself for a moment in the role of someone who is talking to a reporter. You want to be sure the reporter is completely neutral on the issue at hand. You do not want to have to wonder if the reporter will show up later testifying against you.
In an even more fraught circumstance, let’s say you are a whistleblower, talking to reporter in confidence. If it’s known the information is coming from you, you could lose your job. But someone needs to shine a light on the fraud or other misdeeds going on in your office, and you can point the reporter to the documents she needs to make the case.
It all breaks down, and the public loses the chance to know the facts of the matter, if you believe the reporter later will be called to testify and to say, “Yes, it was Mrs. Smith who told me what was going on.”
State shield laws differ in certain respects. Here are features Vermont lawmakers should include in a shield law bill in our state, a version of which is under review by the Senate.
First, there should be a high bar: If police or lawyers on either side can get the information they want, or even sufficient information to present a strong case, from elsewhere, they should be required to go that route, even if it’s harder.
Second, if the conversation between the reporter and source was in confidence, it simply should be unobtainable by the court system, like that between a confessor and priest or client and lawyer.
Third, a question will be raised about who qualifies as a journalist covered by the shield law: a talk-radio host? A blogger?
One approach might be to define journalism, rather than journalist. If the subject has been covered by the media outlet in question and a report has been produced for a general audience, whoever produced it is a de facto journalist.
Vermont has excellent, taxpayer-funded law enforcement personnel with extensive techniques, equipment and powers—including the power to seek and execute search warrants and, in most cases, the power to subpoena witnesses and compel testimony. These people and their tools do a top-notch job getting the results they and the public want.
Law enforcement has the funding, the tools and the powers that journalists lack.
All we bring is our independence and willingness to ask questions without regard to whose side in a story the answer might help. A shield law would go a long way toward ensuring that independence is protected and preserved.
Dave Gram worked for The Associated Press for more than three decades, covering Vermont from its Montpelier bureau.