Our opinion: Noem, S.D. House correctly supports protection for reporters; Senate should do the same.
It’s remarkable that, while the news media are under unprecedented challenge from the highest national leadership, the South Dakota Legislature is moving forward with strengthening the practice of a free press.
On Monday, the South Dakota House of Representatives voted 47-20 for protections for journalists who refuse to disclose information or sources. HB 1074 would block courts, the Legislature and other public bodies in South Dakota from holding in contempt journalists who assert the privilege. It would also make information obtained in violation of the law inadmissible in legal proceedings. It’s a measure that should become law.
It’s worth noting that this legislation would not weaken or diminish South Dakota’s libel and defamation laws or lead to reckless newsgathering and reporting. Thirty-nine states already have similar legislation in place; the South Dakota law is based largely on what other states have on the books.
The bill gained traction because Gov. Kristi Noem has pushed for a reporter shield law. That didn’t come as a total surprise. In August, candidate Noem met with representatives of the South Dakota Newspaper Association and – on her own and without prompting from the journalists – said her administration would seek a reporter shield law in South Dakota.
“There should be that protection for investigative reporters to do their jobs without fear of consequences and legal action,” she said.
While reporters – including those of us at the Freeman Courier – often have “off-the-record” conversations with public officials and citizens alike, it’s unlikely this law will have significant impact locally. But it could, and that’s precisely why having it in place matters – not for journalists but for citizens.
One of the best explanations on why this matters comes from Jonathan Peters, media law professor. Here are excerpts from what he wrote in the Columbia Journalism Review in August 2016:
Generally, any person who is asked or ordered to testify (or produce documents) at a legal proceeding is required to comply. If the person doesn’t, she’s subject to a contempt finding, which means a judge could put the person in jail, or fine her, or both. The penalty’s chief purpose is not to punish—it’s to extract compliance.
However, there are exceptions called privileges. The most famous is the attorney-client privilege that exempts an attorney from testifying against a client about confidential communications. Many states recognize similar privileges for medical doctors, therapists, religious advisors, and spouses. They all stem from the belief that there’s a public interest that justifies the exclusion of testimony by certain people against others.
Journalists have argued that they should have a privilege for roughly analogous reasons. They rely on sources to provide the news they publish, and those sources might not share sensitive or critical information in the absence of anonymity—out of fear that they’ll be punished for sharing it. ... There’s a public interest in encouraging the disclosure of newsworthy information.
If journalists are, or are seen as, investigative arms of the government or private interests, then the public might lose faith in their reporting and be loath to trust them with information.
There are countless important stories that have been brought to light because people were willing to share information with reporters knowing their identity would remain confidential.
“Deep Throat” (later revealed to be Mark Felt) as a source in “Watergate” is a classic example. But there are scores of other whistleblowers, victims and people who felt ethically bound to share information that helped reporters uncover crime, abuse and corruption. Bringing that to the light of day is an essential role of a free and vibrant press.
Even here in Freeman, that’s helped provide essential background and direction for local reporting over the years.
It’s encouraging that Gov. Noem and the South Dakota House have given strong support to putting a reporter’s shield law in place. The bill now moves to the Senate, which should pass it and send it to Gov. Noem’s desk for her signature.
The Freeman Courier editorial reflects the opinion of publisher Jeremy Waltner and former publisher Tim L. Waltner