By Amanda Palmeira
The concept of anonymity for sources is difficult for many non-journalists to grasp outside of scenes from “All the President’s Men” or “House of Cards.” But the very nature of journalism involves reporting information that others don’t want revealed and anonymity can often be necessary to bring sensitive issues to light.
Though Massachusetts recognizes reporter privileges through common law, it is one of only 10 states that do not have a statute specifically designed to protect journalists from having to reveal their sources. The state’s legislature is now considering a shield law, however, that would prevent reporters from being compelled to disclose who provided them information.
The New England First Amendment Coalition testified earlier this month in favor of this legislation, H.B. 1533.
The bill would provide “much needed clarity to the legal standard,” said NEFAC’s Robert Bertsche, an attorney at Prince Lobel Tye who testified Oct. 6 on behalf of the coalition. “It would also protect journalists from threatened jail time who refuse to give out their sources, except in extremely rare cases.”
Bertsche said he often receives calls from journalists who want to know whether they can guarantee anonymity to a source.
“I have to say, ‘I don’t know, it depends’,” he said. “Because it means that we’ve got a test that’s going to be argued in the courts and it’s going to take some expense to argue, and many, many times, I’m afraid to admit, newspapers retrench and say, ‘We’d better not go with that story because we can’t be sure that we’ll be able to go to court and protect our sources.’ “
H.B. 1533 defines a journalist as, generally, any individual who has or is currently working for a news organization, and who is or was engaged in newsgathering for that organization. It prevents such journalists from being compelled to disclose “the source of any news or information procured by [that journalist], or any information that would tend to identify such source, while providing services for the news media, whether or not such source has been promised confidentially.”
The only exception to this protection is when “disclosure of the identity of a source is necessary to prevent imminent and actual harm to public security from acts of terrorism,” and when revealing that information would prevent such harm.
State Rep. Josh Cutler (D-Duxbury) also spoke at the hearing, offering his expertise as a former journalist, having been a newspaper editor for more than a decade.
“There are some stories that simply will not be told without some form of this law here in Massachusetts,” Cutler said. “Without assurances that [a source’s] identity will be kept confidential, stories may not be reported on. . . . It’s about protecting the whistleblower. It’s about protecting journalism.”
Cutler said that “this legislation is not about creating a roadblock for our district attorneys or law enforcement – it’s about creating a roadmap, so all parties can operate under a common set of rules.”
He emphasized that the bill wouldn’t just help big media conglomerates like “The Boston Globes of the world” who have legal counsel readily available, but it would also help “the many smaller newspapers, who, when threatened with litigation or are subpoenaed, will have a chilling effect.”
“Not having this law is preventing us from telling the stories that could possibly be the most important stories in our community,”said Laura Hutchinson, a reporter for WWLP News 22. “Sources that are coming to us are fearing for their lives, they’re fearing intimidation, for their safety, for their job security, and because they’re having those fears, they’re contemplating not talking to us about the story at all. And in some cases, this is a very important issue that could make a huge difference in their lives but also in other people’s lives who are experiencing a similar situation.”
Hutchinson described her personal experiences as a reporter, sharing that someone working in a nursing facility once came to her with information about abuse and mistreatment of patients.
“When I was asked the question, ‘How can you protect me if I talk to you? How can I know that I will be kept confidential?’ I explained that, in television, we can blur your face and your voice,” she said, “but as soon as this gets to a courtroom, there’s not a whole lot.”
Ultimately, Hutchinson said, she couldn’t report the story.
Amanda is a second-year law student at New England Law | Boston and was a summer intern for NEFAC. She can be emailed at firstname.lastname@example.org.
NEFAC was formed in 2006 to advance and protect the Five Freedoms of the First Amendment, including the principle of the public’s right to know. We’re a broad-based organization of people who believe in the power of an informed democratic society. Our members include lawyers, journalists, historians, academics and private citizens.
Our coalition is funded through contributions made by those who value the First Amendment and who strive to keep government accountable. Donations can be made here. Major Supporters of NEFAC for this year include: The Robertson Foundation, The Providence Journal Charitable Legacy Fund, The Boston Globe and Boston University.