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Court panel to consider reporter protection

A Utah Supreme Court advisory committee Wednesday agreed to look at creating a draft rule that would offer news reporters some protections from having to reveal confidential sources or turn over their notes under court subpoena.

The Advisory Committee on the Rules of Evidence voted to form a subcommittee to examine whether to create some sort of reporters' privilege, an idea brought to them by media law attorney Jeff Hunt and supported by Utah Attorney General Mark Shurtleff.

The pair cast the concept as a way to create consistency in how courts interpret the matter statewide — uniformity they said would benefit everyone, from sources to reporters, because everyone would be on the same page.

Reporters "make inviting subpoena targets," Hunt told the committee. "This is about protecting the role of the news media" to disseminate information.

Utah is among five states without some kind of shield laws, Hunt said.

The proposal to create one follows the nearly three-month jailing of New York Times reporter Judith Miller, who refused to reveal the identity of an anonymous source during a U.S. Department of Justice investigation. Shurtleff filed a brief with 33 other attorneys general, unsuccessfully asking the U.S. Supreme Court to hear her case and institute a federal protection afforded in states.

A bill before Congress proposes a federal shield law, Hunt said.

Hunt said judges in Utah typically use a legal test from a U.S. Supreme Court decision in determining when reporters' unpublished or unbroadcast work or testimony might be subpoenaed. But not all decide the same.

Shurtleff said he did not seek absolute privileges for reporters but a heavy burden for government to subpoena their testimony or documents.

Hunt proposed a rule that would apply to newsgathering organizations, employees, contractors or others who disseminates news or information through them. It would bar them from having to testify "or produce any document in any proceeding or in connection with any issue arising under state law," with limited exceptions in criminal investigations. It also would bar subpoenaing reporters' phone and Internet records to get at such information.

But there was some committee question as to whether telecommunication or Internet providers should be protected, and whether the matter belonged before lawmakers. In the end, members voted to explore a draft rule.

Shurtleff said he would pursue a bill if a rule didn't pan out, and encourage law enforcement to get behind it or remain neutral. But he said some legislators already have characterized the idea as putting reporters above the law.

Robert Breeze, who identified himself as an attorney, agreed in written statements distributed to the committee. He also questioned how a reporter would be defined, and whether the privilege would extend to investigative bloggers.

A draft rule would be discussed by the committee and taken out for public comment before it came to the Supreme Court for final approval.