More Hacking at the Shield Law

Monday, July 10, 1989

Page 8

EDITORIAL

More Hacking at the Shield Law

July 7 appears to be a jinxed day for the press. On that date one year ago, and again this year, a court of appeal panel refused to give effect to the unambiguous language of the state reporters' Shield Law, contained in the Constitution and the Evidence Code.

The 1988 ruling was issued by Div. One of this district. Justice Robert Devich wrote for the panel in declaring that a judge properly found a reporter and a photographer in contempt for declining to testify as to unreported and unphotographed observations during an arrest.

Presiding Justice Vaino Spencer subsequently entered a dissent. The state Supreme Court granted review in that case, as well as in a case where a contrary view was expressed by Div. Six of this district.

Friday, the Fifth District Court of Appeal, in an opinion by Justice Marvin Baxter, proclaimed that the Shield Law affords no protection to a television news photographer who seeks to resist testifying at a deposition as to events he witnessed at a news scene.

The opinions by Devich and by Baxter fly in the face of the clear language of the Shield Law.

Under Art. I, Sec. 2 of the state Constitution, as well as Evidence Code Sec. 1070, there is an immunity from contempt "for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public."

Inasmuch as a civil contempt adjudication would be the only vehicle for coercing the testimony of a non-party, the unavailability of contempt proceedings necessarily means that there exists a testimonial privilege.

Devich and Baxter, however, are not satisfied with the Shield Law, as written. Arrogating to themselves legislative powers—powers superseding those of the electorate who brought into being the constitutional provision and the elected representatives who enacted the statute—they have added a qualification:

The protection against compelled disclosure of unpublished materials exists only where the information was derived from a confidential news source.

It is true that the original purpose of the statute as enacted in 1935, and the primary objective of both the statute, as amended, and the constitutional provision, is to keep reporters from being jailed for refusing to betray confidential news sources. But the clear wording of the Shield Law in its two (nearly identical) forms evinces an unmistakable intent to create a separate, independent prong: protection of unpublished materials.

While opinions in the cases decided by Div. One and Div. Six can no longer be cited in litigation, there is no restraint on their being quoted in an editorial. We believe the words of both Presiding Justice Spencer and Justice Gilbert to be persuasive.

Spencer, after quoting the applicable Shield Law provisions, observed:

"These provisions are clear and unambiguous—they apply to 'any unpublished information' obtained while the newsperson is engaged in his or her job of 'gathering, receiving or processing of information for communication to the public.' (Emphasis added.)

"There is no limitation to unpublished information obtained from a private or confidential source.

"Inasmuch as the language of these provisions is clear and unambiguous, there is no need to construe them and the court may not go behind their terms in search of the intent of the Legislature or voters in order to construe them on that basis....Nor can the court add limiting terms not found in the provisions...."

She went on to say:

"The shield laws, by their express language, protect newspersons from having to disclose 'any unpublished information obtained in the course of their newsgathering activities. (...[E]mphasis added.) They are thus shielded from the civic duty of ordinary citizens to testify as to their observations of public events when called upon by the courts to do so, when their observations are made while they are on the job. The Legislature and the voters have chosen to give them this protection in the interest of maintaining a free press, even at the cost of the loss of relevant evidence at trials."

Justice Gilbert's reading of the Shield Law yielded this declaration:

"[T]he news gatherer's privilege gives absolute protection to a journalist in a civil lawsuit in which the journalist is not a party."

In finding that the Santa Barbara News-Press need not yield its photographs of an accident, he said:

"Whether the photographs sought are bound for oblivion in a wastebasket or have some special significance to the News-Press is not important. The news gatherer on the beat does not have to worry about potential uses of his or her material in third party actions. The shield law is to be broadly applied. Its provisions afford absolute protection to nonparty journalists in civil litigation from being compelled to disclose unpublished information."

The Devich/Baxter view of the Shield Law is foggy. And Baxter's discussion of the issue is shamefully muddled.

One misconception underlying his opinion is that the cameraman's observations at a news scene were the product of "happenstance." To the contrary, what he observed were events that occurred at a news scene which were directly the result of the news event. His deposition testimony is sought concerning an accident which resulted from debris in the road; the debris was there as a result of an earlier accident; the cameraman was there to do a report on the previous accident. This is hardly akin to a journalist witnessing an accident on the way to work and snidely proclaiming that he doesn't have to relate what he saw to the police or anyone else because of a shield law. The station provided the footage it showed on the air, but the cameraman declined, as the Shield Law permits, to testify as to information he gathered at the news scene which was not broadcast.

It is to be hoped that the state high court will faithfully apply the unambiguous wording of the state Shield Law and recognize the privilege as it was written, rather than as jurists of the Devich/Baxter ilk would seek to reshape it.