Mass. lawmakers mull putting reporter’s privilege on books

Thursday, May 31, 2007

Legislation under consideration in Massachusetts could add protection for reporters’ confidential sources.

The Free Flow of Information Act, co-authored by attorney Jeffrey Newman, would allow Massachusetts reporters to maintain source confidentiality except in limited circumstances. Under the proposed “qualified-privilege” statute, no member of the judicial, legislative or executive branch of Massachusetts’ government could compel the disclosure of the identity of a person providing information to news media without an overriding public interest in such disclosure, particularly in the prevention of terrorism.

Fifteen members of the state House of Representatives sponsored the legislation, H.B. 1672, which is expected to have a hearing in June.

Newman, who helped spearhead the push for the legislation, said he approached news organizations in Massachusetts about promoting a shield law. After the AP wrote an article about the effort, “we were approached by a number of legislators who wanted to sponsor the bill,” he said.

If the bill passes, Massachusetts would become the 34th state with a statute protecting reporters’ confidential sources and one of 19 with qualified privilege. The District of Columbia and 10 states have absolute reporter’s privilege, five states have hybrid privilege and 17 states, including Massachusetts, have no shield law.

“If this bill passes, news sources will be protected and significant stories relating to the health and safety of the public, some of which are being held up now for fear of court orders requiring disclosure, will be released,” Newman said.

Currently, Massachusetts courts generally recognize a qualified reporter’s privilege, but there is no law that specifically outlines when reporters can be forced to reveal their sources. Shield-law supporters say that has led to mixed results in court.

“Because of the lack of clarity … in our law, the results cannot be anticipated given the same set of facts,” Newman was quoted as saying in a July 2006 AP story.

Newman told the First Amendment Center Online that a high-profile defamation case in 2005 prompted action by news organizations.

When The Boston Globe refused to reveal confidential sources in Ayash v. Dana Farber Cancer Institute and The Boston Globe, 443 Mass 367 (2005), a trial judge instructed the Globe and a reporter to pay $2.1 million in damages. The state’s highest court upheld the judgment, and the U.S. Supreme Court refused to hear the case.

“This case sent shock waves through the media industry here and raised concerns over whether using confidential sources might just be too expensive for the media here,” said Newman.

The Globe case involved the alleged libel and defamation of Dr. Lois J. Ayash, who was blamed in a 1995 article for the death of Globe health columnist Betsy A. Lehman. The paper incorrectly identified Ayash as the leader of a team who signed a drug order of four times the appropriate amount for Lehman’s chemotherapy treatment. While the Globe ran a correction and said that Ayash did not sign the drug order, it left the “leader of the team” designation intact.

Ayash sued Richard Knox, the reporter, and the Globe, and tried to extract source identities from Knox for her additional case against the drug company. Judges in the lower courts agreed that Knox should reveal his sources, which he continually refused to do. The state Supreme Judicial Court, in awarding $2.1 million to Ayash, said that Knox should have disclosed his sources.

Also, in neighboring Rhode Island television reporter James Taricani was assigned to house arrest for six months when he refused to reveal a source.

As a result, numerous news-media organizations have been involved in supporting the bill, including The Boston Globe, New England Cable News, WCVB Channel 5, WBZ Channel 4, WHDH Channel 7, the Boston Herald, the Associated Press, Hearst Inc., WBUR and others.

Newman is a partner of Prince, Lobel, Glovsky, and Tye LLP in Boston and specializes in media law.

Courtney Holliday is a junior majoring in economics and public policy at Vanderbilt University in Nashville, Tenn.

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