A Bright Shield: Utah Supreme Court Wisely Adopts Reporter Privilege Rule

A Bright Shield: Utah Supreme Court Wisely Adopts Reporter Privilege Rule

By The Salt Lake Tribune.

The Utah Supreme Court has shown itself a champion of the public’s right to know by granting journalists the near-absolute right to protect the identity of confidential news sources in the state’s courts of law.

In adopting Rule 509, the court recognized the vital public service performed by whistle-blowers in reporting government or corporate corruption to the news media in exchange for the promise of confidentiality.

The rule, one of the strongest in the country, recognizes this pact between reporter and source as essential to maintaining a free flow of information in a representative democracy. Without such rules, many would-be whistle-blowers keep mum, judging the risk of exposure - and retribution - to be too great.

Until this week, Utah was one of only three states without some form of reporter privilege. That lack of a court rule or shield law meant that news reporters who refused to identify a source could be cited by a judge for contempt and sent to jail. The new rule erases that threat except in cases when disclosure is required to prevent “substantial injury or death.”

That is not all. The rule also covers unpublished information such as notes, outtakes, photos, tapes and documents collected by a reporter in pursuit of a story. Now, a judge can order disclosure of such materials only after applying a balancing test - the need of the party seeking the information (a prosecutor or defense attorney, for example) weighed against the public interest that it be protected.

From the beginning, the court took careful measure of the rule proposed by the Utah Media Coalition, of which The Salt Lake Tribune is a member. The proposal had the crucial backing of Utah Attorney General Mark Shurtleff, whose advocacy raised the ire of many Utah prosecutors during the three-year prelude to the court’s decision.

Opponents of the rule said that it was overly broad and they offered alternatives. One that was forwarded to the Supreme Court last year on a majority vote of the court’s own Advisory Committee on the Rules of Evidence would have been far more restrictive than no rule at all.

But the court clearly saw the efficacy of a strong privilege that would foster greater transparency and accountability in government. At a time when government at all levels has succeeded, to varying degrees, in eroding public oversight of its doings - thereby evading accountability - the Utah Supreme Court has wisely acted for the good of the governed.

The lack of a court rule or shield law meant that news reporters who refused to identify a source could be cited by a judge for contempt and sent to jail. The new rule erases that threat except in cases when disclosure is required to prevent “substantial injury or death.”