Massachusetts seeks a press shield through judicial rules, not law
The Massachusetts Supreme Judicial Court has been asked to draft regulations to protect the confidentiality of news sources. Arguing that news sources will dry up unless the identity of those who provide tips and critical information to reporters and editors can be safeguarded, a special task force of lawyers and journalists suggests that what is needed cannot be provided through legislation.
Instead of a so-called ''shield law,'' the course taken in a number of other states over the years, the panel, chaired by Harvard Law School Prof. Laurence H. Tribe, wants the seven state supreme court justices to come to grips with the issue.
The proposal, if implemented, would be the first of its kind in which those involved in gathering, editing, and disseminating information to the public, as well as their sources, would know pretty much in advance to what extent they would be protected from compulsory disclosure.
Professor Tribe and his 11 colleagues on the task force appointed by Gov. Michael S. Dukakis hold that having the courts set up guidelines is appropriate, since at issue are United States constitutional guarantees of freedom of speech and press and ''the judiciary has the ultimate function of overseeing and administering constitutional safeguards.''
Tribe observes that the state supreme court has already drafted regulations for cameras in the courtroom.
Rather than an absolute protection of confidentiality, the task force is seeking a limited shield under which forced disclosure would be possible only when the person seeking such information can demonstrate that:
''1. It is necessary to avoid the violation of constitutional rights or a miscarriage of justice....
''2. Alternate and less oppressive means of obtaining that information have been exhausted.''
Unlike some press confidentiality shields elsewhere, the Massachusetts task force recommendations extend beyond the news media as such. The proposed rules would embrace ''all private individuals presently or formerly connected with the process of gathering, receiving, writing, editing, interpreting, publishing, broadcasting, or any other way of presenting news or other information to the public.''
The rules would protect ''any person engaged independently in such activities'' as well as those ''connected with, or employed by, newspapers, periodicals, press associations, news agencies, radio, television, or other electronic media or any medium of communication.''
Governor Duakis set up the task force after a Boston Herald reporter, Paul Corsetti, was jailed for a week for refusing to divulge sources of confidential information sought by the prosecution in a criminal trial.
Observing that Massachusetts is one of only a few states with ''no statutory language or court rulings for the protection of unpublished information and confidential news sources,'' the governor praises the panel's recommendation.
''Where reporters and editors carry the burden to report the news accurately and responsibly, we in government must ensure the freedom to report the truth without fear of imprisonment,'' he asserts.
The task force proposal would cover not only those directly involved in the writing or broadcasting of information, but also researchers.
The protection being sought would shield those covered from ''civil or criminal contempt, fines, imprisonment, and all other sanctions in any proceedings before a legislative, judicial, executive, or administrative body empowered to issue subpoenas.''
The panel has urged that the Massachusetts Supreme Court, before shaping the proposed shield regulations, seek the ''broadest feasible participation by the press, defense attorneys, prosecutors, and other interested individuals and groups.''