(SACRAMENTO, CA) On June 19th, the State Assembly will hear a resolution authored by Assemblymembers Noreen Evans (D-Santa Rosa) and Mark Leno (D-San Francisco) calling upon the United States Congress to enact a shield law for America's journalists.
 
Assembly Joint Resolution (AJR) 24 will be reviewed – along with other legislation – during an Assembly Judiciary Committee hearing starting at 8:00am in Room 4202 of the State Capitol.  The hearing of AJR 24 is on the heels of yesterday’s review of a proposed federal shield law by the House Judiciary Committee where U.S. Department of Justice Officials expressed opposition to such a law.
 
“This isn’t the first time the Bush Administration is way wrong,” said Assemblymember Noreen Evans (D-Santa Rosa).  “The lack of a federal shield law undermines our ability to protect a free press under state law.  No protections exist for California’s journalists subpoenaed to a federal court.  Congress must act to save a free press.”
 
A journalist's promise of confidentiality to a news source is often the only way the public learns about waste, fraud and abuse within government and the private sector.  Absent legal protections from the forced disclosure of confidential news sources, potential whistle blowers may remain silent.
 
“The framers of the Constitution understood very well that a truly free society demands a press without government obstruction,” said Assemblyman Mark Leno (D-San Francisco).  “In an age when our cherished freedoms are vanishing at the hand of our own Federal Government, we must do everything in our power to uphold the democratic principles our country was founded on.  Without a federal shield law, I worry about a dramatic and chilling effect on our freedom of the press and journalistic integrity in America.”
 
49 states and the District of Columbia have either statutory or common law shield protections.
 
California's shield law was enacted in 1935.  In 1980, it was incorporated into our state constitution by the voters through Proposition 5.  In 2000, legislation broadened the shield in two basic ways.  First, a journalist subpoenaed in any civil or criminal proceeding must be given at least five days' notice, except in urgent circumstances.  Second, during a criminal trial wherein a journalist is subpoenaed as a witness and asserting shield protections, a judge must set fourth findings on the record stating why the journalist's testimony about a confidential source is essential to guarantee a defendant's right to a fair trial.
 
There are currently two companion measures pending in the United States Congress to establish a federal shield law for journalists, H.R. 2102 and S. 1267, called the Free Flow of Information Act.
 
Last year, the State Legislature unanimously passed a similar resolution by Evans.  With a new Congress and a House Speaker from San Francisco, Evans and Leno felt another resolution was in order.
 
AJR 24 is sponsored by the California Newspaper Publishers Association.  Further information about AJR 24 can be found online at http://www.leginfo.ca.gov.  Further information about the pending federal Free Flow of Information Act can be found online at http://thomas.loc.gov.
 
The text of AJR 24 follows.
 
 
 
 
BILL NUMBER: AJR 24        AMENDED
               BILL TEXT
 
               AMENDED IN ASSEMBLY  JUNE 13, 2007
 
INTRODUCED BY   Assembly Members Evans and Leno
   (Coauthor: Assembly Member Nava)
   (Coauthors: Senators McClintock and Migden)
 
                        MAY 21, 2007
 
   Relative to speech.
 
 
               LEGISLATIVE COUNSEL'S DIGEST
 
 
   AJR 24, as amended, Evans. Speech.
   This measure would respectfully urge the Congress of the United
States to enact a shield law for America's journalists.
   Fiscal committee: no.
 
 
 
   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) 139 Cal.App.4th 1423,
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-three states--Alabama, Alaska, Arizona, Arkansas,
California, Colorado, Connecticut, 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
Washington--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, Sixteen states--Hawaii, Idaho, Iowa, Kansas, Maine,
Massachusetts, Mississippi, Missouri, New Hampshire, South Dakota,
Texas, Utah, Vermont, Virginia, West Virginia, and Wisconsin--have
established varying confidentiality privileges for journalists
through their courts; and
   WHEREAS, In 2007, legislation was introduced in six
states--Kansas, Massachusetts, Missouri, Texas, Utah, and West
Virginia--to establish a statutory shield law and in New York to
expand its shield law; and
   WHEREAS, Pending measures in the Congress of the United States
would establish a federal shield law for journalists  ,
recognizing the necessity for media disclosure of a source to prevent
imminent and actual harm to national security; and  
through the enactment of the Free Flow of Information Act; and
    WHEREAS, The pending Free Flow of Information Act establishes
that a federal entity may not compel a journalist to divulge
confidential sources unless a court determines by a preponderance of
the evidence that (1) it is necessary because all reasonable
alternatives have been exhausted, (2) it is essential to a criminal
investigation, it is necessary to prevent imminent harm to national
security or to individuals, or it is necessary to identify a person
who has violated medical and financial privacy laws, and (3)
balancing the public interests, nondisclosure of a confidential
source would be contrary to the public interest; and
    WHEREAS, The pending Free Flow of Information Act stipulates
that the testimony or documents sought by a federal entity from a
journalist should be narrowly and appropriately tailored in scope;
and
   WHEREAS, Over the last six years, four federal courts of
appeals--the First Circuit, the Fifth Circuit, the Ninth 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.