Monday, September 16, 2019

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Reporter shield law ready for governor’s signature

PIERRE, SD — On a vote of 33-1 the reporter shield law was endorsed Wednesday by the S.D. Senate. Having already been approved by the House on a 47-20 vote, it now goes to Gov. Kristi Noem for her signature. Noem called for the passage of a shield law in her State of the State address.

In the Senate, bill sponsor Sen. Lee Schoenbeck, R-Watertown, said the bill would ensure a vibrant fourth estate in South Dakota.

“It functions like a whistleblower law,” Schoenbeck said, adding that it would protect a reporter from revealing the identity of a confidential source.

Sen. Craig Kennedy, D-Yankton, told the Senate that the law will not protect only reporters.

“We’re trying to protect the people who are the whistleblowers,” Kennedy said.

HB1074 faced initial skepticism from some members of the Senate Judiciary Committee at its hearing on Tuesday.

Passage of HB1074 would not only protect reporters from subpoenas to testify or from being compelled to reveal confidential sources. They would also be protected from having to turn over notes or unpublished photos.

At the committee hearing, Schoenbeck said at first he didn’t understand why the legislation was needed.

“I thought this existed” in South Dakota law, Schoenbeck said. “I was surprised that it wasn’t.”

Dave Bordewyk, executive director of the South Dakota Newspaper Association, said newspaper reporters and broadcasters in the state are bound by the Society of Professional Journalists’ code of ethics. That code calls for them to be accurate and fair; treat sources, colleagues and the public with respect; act independently; and be accountable and transparent.

“They strive every day to live up to this code,” Bordewyk said.

The role of journalists would be enhanced, Bordewyk said, if their confidential sources knew that reporters could not be compelled to reveal their identities.

“We would urge you to strengthen these fundamental freedoms,” Bordewyk said.

Justin Smith, also a lobbyist for SDNA, said the privilege created for journalists in HB1074 already exists in South Dakota law for attorneys, counselors, spouses and ministers. He noted that 39 states and the District of Columbia have reporter shield laws.

In the bill, journalists are defined as those working for a legal newspaper or a broadcast outlet that’s licensed by the Federal Communications Commission. Bloggers are not covered in the bill.

Smith explained that it was impossible to include bloggers without having the law cover everyone who uses the Internet.

“The strength of that niche is its weakness,” said Schoenbeck, explaining that the blogging field is growing because anyone can get into it, but often held in disrepute because anyone can get into it.

Tom Hart, senior legal counsel to Gov. Kristi Noem, testified in favor of the bill, noting that the governor saw a free press as one of the “key checks and balances in our society.”

While no one spoke in opposition to the bill, Sen. Stace Nelson, R-Fulton, said he was bothered by the exclusion of bloggers.

Bordewyk said in researching other shield laws, it was impossible to find language that would include some credible news sites but exclude others who don’t display the ethics of professional journalists.

“That’s not only a challenge in this law, but across the profession,” Bordewyk said.

Noting the work done by journalists to uncover the EB-5 scandal, Sen. Lance Russell, R-Hot Springs asked, “Is this going to be a shield or a sword?” He questioned how a journalist, who knew through his reporting about a felony and kept his source confidential wouldn’t be guilty of misprision of a felony.

Smith said that in researching laws in 39 states, he didn’t come up with a situation like the one the senator described. Journalists would be allowed to waive the privilege if they chose to, he said.

“We believe this bill would lead to a more informed public,” Smith said, noting that the bill was crafted with help from the state’s attorney’s group and that no law enforcement entities had shown up to testify in opposition to the bill.

At times South Dakota media seemed to suffer due to its association with the national media. Nelson asked how the legislation could guard against plagiarism or the “epidemic of anonymous sources” in national news stories.

Smith said any newspaper or broadcaster employs editors to guard against unprincipled journalists.

“We don’t have these problems here in South Dakota,” Smith said.

Russell said the state would be better off with a law that protected whistleblowers rather than journalists, though he doubted a whistleblower protection law could make it through the current Legislature.

“This may be the best thing we’ve got,” Russell said.

The committee endorsed the bill on a 7-0 vote.