Kansas legislature

Kansas Legislature

Shield law bill faces uphill battle

Proposal to protect reporters likely to languish in committee

February 19, 2007

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— New ideas often are a hard sell for legislators.

A case in point is shield law legislation languishing in the Senate. The intent is simple: protecting reporters from having to reveal their sources for stories.

While some question the need for such a law, supporters say it's less about protecting reporters than protecting the public's right to know, akin to state laws requiring most official records and government meetings be open to public scrutiny.

Doug Anstaett, Kansas Press Association executive director, said it's essential for reporters to be able to protect sources - who often share information at their own peril - if they are to uncover corruption and dishonesty.

"Reporters can't do that if sources won't step forward with tips and other sensitive information, and those sources sometimes won't step forward without the promise of confidentiality," Anstaett said. "Even down to the smallest community in the state, people have a right to know what their government is doing."

The possibility of a reporter facing the choice of going to jail or revealing a confidential source can have a chilling effect.

"Reporters ought not be prosecuted for accurately reporting information that holds government accountable," said Senate Majority Leader Derek Schmidt, who along with Senate Minority Leader Anthony Hensley is sponsoring the bill.

Thirty-five states have laws protecting reporters from revealing their sources. The last time a shield law proposal was offered in Kansas was in 2002 and it died in a House committee.

"There's always resistance to providing additional privileges. You have to balance the interest of the judicial system against the rights of the press," said Schmidt, R-Independence.

Balancing test

That constitutional confrontation has created tension just about anytime the shield law idea has been broached.

But the bill would establish a balancing test for a court to decide whether a reporter must reveal sources or unpublished information.

Under the bill, that could happen only if there's clear and convincing evidence that the disclosure is relevant, it can't be obtained by other means and it's of a compelling and overriding interest and necessary to secure the interests of justice.

That balancing test for determining privilege has its genesis in a 1972 U.S. Supreme Court ruling. Six years later, the Kansas Supreme Court acknowledged that privilege exists, citing the federal case, but didn't say much about it.

For years, many reporters, editors and legislators thought the case law was good enough, but others say it's better to put those protections in law.

"The value of it is that there are procedural safeguards so that not only is it statutory instead of case law, but the procedures can be followed as set out in the law," said KPA attorney Mike Merriam.

Running out of time

Normally, a bill sponsored by heavy hitters such as Schmidt and Hensley wouldn't have much trouble passing the Senate.

But that probably won't happen with the proposed shield law.

The bill was introduced Feb. 6, which is considered late in the legislative world with scores of other bills ahead of it for committee consideration.

"We committed early to introduce the bill, but we needed to make sure it was in the form that was best and that just took some time," said Hensley, D-Topeka.

The bill is in the Judiciary Committee, but Chairman John Vratil said he doesn't plan a hearing because too many other bills must get out of committee before a midweek deadline.

"We just are going to run out of time," said Vratil, R-Leawood.

Yet if Vratil's committee is too busy, the proposed shield law could find life in some other committee. Legislative leaders can route a bill through one of a few committees not subject to any deadlines.

"I would like for there to be a hearing this year," Schmidt said.

Still, the odds are against a proposed shield law making it to the governor's desk this year. For one thing, some legislators don't like what reporters write often enough to be skeptical about granting them legal protection, even in the name of holding government accountable.

Even if the Senate would pass the bill - and that's no forgone conclusion - backers expect a more hostile reception in the House.

Often it takes years for an idea to gain enough popularity for passage, and the intervening years can be used to educate politicians and the public.

Consider last year's success at enacting a law allowing law-abiding Kansans to carry concealed guns. That happened after a decade of effort to generate enough support so that it became law over the governor's veto.

So supporters of a shield law ought not to despair about dim prospects for their legislation this year.

Comments

Ragingbear 8 years, 5 months ago

Hmm. You would think that the entire "Freedom of the press" thing in our constitutional rights would have covered this. Then again, one could think alot of things that were not correct. For example, wasn't the Iraq Mission accomplished about 4 years ago? I thought so, but was wrong.

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