CA Legislature Passes Federal Shield Law Resolution

Below is Assembly Joint Resolution 31 (AJR 31) which was passed by the State Senate August 16 (40 to 0) and by the State Assembly last year (70 to 0 with 10 abstaining). State Senator Caroloe Migden of SF and Assemblyman Mark Leno of SF are both co-authors.

BILL NUMBER: AJR 31
AMENDED IN SENATE JUNE 19, 2006
AMENDED IN ASSEMBLY AUGUST 25, 2005
AMENDED IN ASSEMBLY AUGUST 18, 2005

INTRODUCED BY Assembly Member Evans
relative to speech

LEGISLATIVE COUNSEL'S DIGEST
This measure would respectfully urge the Congress of the United
States to enact a shield law for America's journalists.

WHEREAS, A free press is vital to the publication of important
news within our society so that our government is accountable to its
citizens; and
WHEREAS, A journalist's promise of confidentiality to a source is
often the only way the public can learn about waste, fraud, and abuse
in government and the private sector, and the forced disclosure of
confidential sources and information will cause individuals to refuse
to talk to journalists, resulting in a chilling effect on the free
flow of information and the public's right to know; and
WHEREAS, The most famous confidential source in United States
history, W. Mark Felt, also known as Deep Throat, voluntarily
revealed his identity as a resident of Santa Rosa 33 years after the
Watergate scandal revealed corruption in the highest levels of the
Nixon White House; and
WHEREAS, Shield laws promote the free flow of information to the
public and prevent government from making journalists its
investigative agents by prohibiting courts from holding journalists
in contempt for refusing to disclose unpublished news sources or
information received from those sources; and
WHEREAS, California's shield law was first enacted in 1935 and
later incorporated as subdivision (b) of Section 2 of Article I of
the California Constitution in 1980 to provide that a journalist may
not be held in contempt for refusing to disclose a news source or
unpublished information gathered for news purposes; and
WHEREAS, California's shield law was broadened in 2000 to also
provide that no testimony or other evidence given by a journalist
under subpoena in a civil or criminal proceeding may be construed as
a waiver of immunity rights provided by the California Constitution,
that a journalist subpoenaed in any civil or criminal proceeding
shall be given at least five days' notice, except in exigent
circumstances, and that a judge must set forth findings on the record
stating why the testimony of a journalist is essential to guarantee
the defendant's constitutionally guaranteed right to a fair trial
when presiding over a criminal trial wherein a journalist is
asserting protection under the media shield law; and
WHEREAS, In O'Grady v. Superior Court (2006) 2006
Cal.App.LEXIS 802, the application of California's shield law was
further broadened to include the gathering and collection of news by
journalists publishing information through the Internet; and
WHEREAS, Thirty-one states -- Alabama, Alaska, Arizona, Arkansas,
California, Colorado, Delaware, Florida, Georgia, Illinois, Indiana,
Kentucky, Louisiana, Maryland, Michigan, Minnesota, Montana,
Nebraska, Nevada, New Jersey, New Mexico, New York, North Carolina,
North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, Rhode Island,
South Carolina, Tennessee - and the District of Columbia have
statutory shield laws giving journalists some form of privilege
against compelled production of confidential or unpublished
information; and
WHEREAS, Eighteen states - Connecticut, Hawaii, Idaho, Iowa,
Kansas, Maine, Massachusetts, Mississippi, Missouri, New Hampshire,
South Dakota, Texas, Utah, Vermont, Virginia, Washington, West
Virginia, and Wisconsin - have established varying confidentiality
privileges for journalists through their courts; and
WHEREAS, In 2005, legislation was introduced in Connecticut to
establish a shield law and also within Maryland and Minnesota to
expand their shield laws ; and, in 2006, legislation was
introduced in Washington to establish a shield law and also within
New York to expand its shield law ; and
WHEREAS, There are several pending measures in the Congress of the
United States to establish a federal shield law for journalists,
some of which recognize the necessity for media disclosure of a
source to prevent imminent and actual harm to national security; and
WHEREAS, Over the last five years, three federal courts of appeals -the First Circuit, the Fifth Circuit, and the Circuit for the District of Columbia- have affirmed
contempt citations issued to reporters who declined to reveal
confidential sources, each imposing prison sentences more severe than
any previously experienced by journalists in American history; and
WHEREAS, In relation to Miller v. United States (2005) 125 S.Ct.
2977 and Cooper v. United States (2005) 125 S.Ct. 2977, the
Attorneys General of 34 states -- Arizona, California, Colorado,
Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Iowa,
Kentucky, Louisiana, Maine, Maryland, Massachusetts, Mississippi,
Montana, Nebraska, New Mexico, North Carolina, North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota,
Tennessee, Texas, Utah, Vermont, Washington, West Virginia, and
Wisconsin - and the District of Columbia stated in an amicus brief
submitted to the United States Supreme Court, "A federal policy that
allows journalists to be imprisoned for engaging in the same conduct
that these State privileges encourage and protect 'buck(s) that clear
policy of virtually all states,' and undermines both the purpose of
the shield laws, and the policy determinations of the State courts
and legislatures that adopted them;" and
WHEREAS, Confidentiality of certain communications has long been
protected in order to further important interests, both public and
private, including communications between doctor and patient, lawyer
and client, and priest and penitent; and
WHEREAS, A May 2005 poll conducted by the First Amendment Center
and American Journalism Review found that 69 percent of Americans
agree with the statement: "Journalists should be allowed to keep a
news source confidential;" now therefore, be it
Resolved by the Assembly and the Senate of the State of
California, jointly, That the Legislature of the State of California
respectfully urges the Congress of the United States to enact a
shield law for America's journalists; and be it further
Resolved, That the Chief Clerk of the Assembly transmit copies of
this resolution to the President and Vice President of the United
States, to the Speaker of the House of Representatives, and to each
Senator and Representative from California in the Congress of the
United States.