Wyo reporters need shield law to protect confidential sources

Wyoming legislators went home from the 2023 general session without advancing a key element of Sunshine Week.

Established in March 2005, the week has primarily been devoted to open records and open meetings, with print and broadcast newsrooms, associations, colleges and instructors celebrating and advocating for the public’s right to access government information. 

But in addition to improving access to public records and ensuring sessions covered under open meeting laws aren’t closed, another vital issue is often left out of these conversations. It is consistent with the government not impeding journalists’ efforts to provide the public with credible news from confidential sources that may otherwise not come forward.

The issue generally doesn’t get much attention in Wyoming, which joins Hawaii as the only two states without a shield law. States with these laws allow journalists to protect news sources that need anonymity, so they can disclose information that is in the public interest without fear of retribution from the government, employers and others.

Courts granting journalists limited privileged communications with their sources enable reporting on alleged crimes and other wrongdoing that might otherwise not see the light of day. Under shield laws reporters are protected from disclosing whistleblowers’ identities or from furnishing the materials they’ve provided. Without shield laws journalists who assure anonymity could be ordered by a court to expose their sources or else face prosecution.

Most journalists I know would take jail time rather than break a promise to a source, but requiring them to make that choice encroaches on the First Amendment’s freedom of the press. While the U.S. Supreme Court hasn’t bought that argument and Congress still hasn’t passed a federal shield law, states have created their own patchwork of laws covering different levels of protections for journalists and their sources.

The Wyoming Legislature has considered three shield-law bills in the past four years and rejected them all. The latest, House Bill 91 – news source shield law, was an unrealized opportunity for Wyoming to advance from not even having a shield law to passing one of the most up-to-date laws in the country.

The first bill was sponsored in 2020 by now-retired Rep. Charles Pelkey (D-Laramie). The House vote was 37-23, but because bills during a budget session require two-thirds approval, it fell three votes short.

Rep. Dan Zwonitzer (R-Cheyenne) picked up the ball during the next general session, and the second bill passed the House, 36-24. But as often happens with worthy legislation, it ran into a roadblock in the upper chamber. The measure died by a single vote in the Senate Judiciary Committee when three members didn’t like the bill’s definition of what kind of journalists would officially be granted the privilege.

To address that concern, Zwonitzer returned with HB 91 this year. Instead of listing the types of journalism professions the bill covered, Zwonitzer focused on the type of news they produce.

Because many existing state laws are outdated and don’t take into consideration media’s rapid evolution, the sponsor proposed airwaves, print, internet, computer applications and other means of communication. 

Only Rep. Cyrus Western (R-Sheridan), a member of the House Minerals, Business and Economic Development Committee, wasn’t satisfied with Zwonitzer’s fix. The committee added “independent journalists” to the list of current and former journalists covered under the bill.

House Bill 91 defined potential confidential material as “any written, oral, pictorial, photographic or electronically recorded information or communication concerning local, national or worldwide events,” or other matters of public concern or public interest or affecting the public’s welfare.” That includes a reporter’s unused notes and videos that aren’t aired.

Under the bill, a journalist could refuse to disclose such information that’s collected while reporting “for a newspaper, magazine, news media, press association, wire service, website or other professional medium or agency researching news intended for publication or a radio or television broadcast.”

“What makes me feel comfortable is if somebody claims this privilege, they would have the burden of proving they are a journalist,” Zwonitzer said. The Minerals panel voted 8-1 to send HB 91 to the full House.

But Majority Floor Leader Chip Neiman (R-Hulett), a Freedom Caucus member, didn’t allow the bill to be debated prior to the legislative deadline. Does the far-right want to punish reporters for delivering so-called “fake news?” 

Neiman’s power to control the House agenda and the budget session’s restrictive rules make it likely lawmakers won’t see another shield law bill until 2025.

When they do, it’s important to take heed of what happened to the reporter shield law Hawaii passed in 2008, so we don’t make the same mistakes.

Hawaii’s shield law was considered the most progressive in the country, protecting traditional, online and nontraditional journalists. But legislative critics managed to add a sunset provision that required the law to expire in five years unless it was renewed. 

An attempt to repeal the sunset provision failed in 2013 when opponents snuck in a “friendly” amendment that allowed them to propose changes that would have gutted and, in some cases, reversed its provisions. Rather than pass a bad law, Hawaii opted for no shield law at all. 

Since starting my career in 1976 as a reporter and later an editor, I’ve found it necessary on many occasions to promise a news source anonymity. Like the vast majority of Wyoming journalists, I have never been subpoenaed and told by a judge to violate that trust, though the threat of such action was definitely conveyed by a few attorneys. 

I can attest it’s great to have news corporations that will back you up, but not every journalist has that kind of expensive support. Neither does an independent blogger who may perform the same functions as a “traditional” journalist, but is unable to earn a particular court’s blessing to obtain the limited privilege under a shield law to keep a source secret.

Brian Martin, an editor who has worked at the Wyoming Tribune Eagle for nearly 25 years, explained to lawmakers why shield laws are necessary.

“Improper use of public funds, embezzlement, abuse of power and more happen all the time,” Martin said. “But we don’t know about it until someone steps forward to tell us about it.”

Many times, that person has decided it’s worth risking their job to expose injustice or corruption. But others can’t afford to take those risks, and must remain anonymous.

Martin’s words are consistent with the time-honored tenets of his profession: A promise to maintain the confidentiality of a source is sacrosanct. 

Damaging a journalist’s relationship with a confidential source can have a chilling effect on free speech. This isn’t a new concept; the American Newspaper Guild in 1934 published a code of ethics that stated “newspapermen shall refuse to reveal confidences or disclose sources of confidential information in court or before judicial or investigative bodies,” such as grand juries.

For journalists in Wyoming, the lack of a shield law constitutes a necessary hazard of the profession when working to develop sources and keep their identity confidential. Until the Equality State passes a shield law, professional ethics require journalists to go to jail if it’s necessary to protect their mission and keep their word.

That’s a good lesson for students considering journalism as a possible occupation — and perhaps a lifetime commitment to gathering and reporting news — to learn during Sunshine Week.