(This story was updated April 20 after final House passage.)
The Vermont House has approved a bill that would protect journalists from having to provide the identity and information obtained from confidential sources.
The so-called media shield bill would prevent a court, police, prosecutors or defense attorneys from requiring journalists to turn over information from confidential sources. The legislation provides limited protection for information from non-confidential sources.
The bill got preliminary approval Wednesday with a smattering of no votes. Rep. Anne Donahue, R-Northfield, was the only member to publicly speak against the bill.
It won final approval on the House floor Thursday by a vote of 140-2. Donahue and Rep. Robert Frenier, R-Chelsea, were the two opposition votes.
The Senate already passed the measure unanimously last month. The next stop for the bill is the governor’s desk, where it is expected to get a signature.
Journalists testified that S.96 was needed to protect sources, including whistleblowers, in an era when government officials are trying to crack down on leaks.
A proponent of the bill, Rep. Martin Lalonde, D-South Burlington, said shield laws are not just to protect journalists.
“The main goal in fact of such laws is to protect sources,” Lalonde said. “These sources may include whistleblowers, crime victims, accused criminals and others whose safety or lives might be threatened” by disclosure.
The Vermont Press Association and a coalition of journalists pushed the legislation after two reporters and an editor at Seven Days, a Burlington newspaper, were subpoenaed to testify last year in a sexual assault case filed against former Sen. Norm McAllister. Also, President Donald Trump threatened on the campaign trail to curb the First Amendment rights of reporters.
Even the threat of a subpoena can stop a news organization from printing a story, supporters said, creating a “chilling effect” on reporting of news.
In Vermont, reporters have been threatened with jail if they didn’t comply with a court order to divulge information.
The bill provides an “absolute privilege” to not turn over information provided by confidential sources.
Non-confidential information would only be turned over if it passes a three-prong test: whether the information was “highly material or relevant”; could not be obtained through other means; or there was a “compelling need” for disclosure.
A reporter’s group estimates there are about 6,000 subpoenas issued each year to journalists, mostly from state courts. Forty states have media protection laws.
Hilary Niles, a freelance reporter who helped lead the “media shield law” effort, applauded passage of the bill.
“This is important because it helps journalists protect our sources. And the better we can protect our sources, the better public service journalism we can report,” Niles said, adding reporters should not be “actually or arguably deputized” to do investigatory work for law enforcement.
“It’s essential for journalist to maintain their independence to do their job,” Niles said, adding sources “entrust sometimes their livelihoods to us and sometimes their physical safety and the physical safety of their families.”
Donahue, a journalist from a family of journalists, labeled the bill a setback for freedom of the press. She said by defining journalism, the bill would not protect those engaged in other types of free speech. (Donahue writes and edits Counterpoint, a publication that focuses on mental health issues.)
The bill would protect traditional news organizations and online publications whose primary purpose was journalism. It would not protect the “Facebook ranter,” Lalonde said.
“The First Amendment belongs to any person with a (printing) press,” Donahue said. “And it belongs to them to say what they want to say,” including a “robust discussion” including opinions.
Any kind of law like this “will always by its nature be too broad or too narrow.” It will protect information she said should be turned over and too narrow by providing “special protection” to only some people for only certain information.
“By defining who and what gains protection, this bill excludes by its nature other persons and other content that are not defined in it,” Donahue said. Instead of providing protection for the press, she said it “fundamentally abridges” freedom of the press.
Paul Heintz of the Vermont Press Association said Donahue is correct that journalists should be protected by the First Amendment alone, but said courts have interpreted the law differently.
For example, a 2005 case in Vermont required WCAX to turn over unaired footage of people celebrating and causing damage at the University of Vermont after the Boston Red Sox beat the New York Yankees. Police made arrests based on the footage that was not used as part of the television broadcast.
The bill that passed Thursday would also protect information that was not published.