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Governor Noem Signs Journalist Shield Law for the 20th Century

Governor Kristi Noem did get her journalist shield law passed. On Friday Governor Noem signed House Bill 1074, which permits certain journalists in certain situations to refuse court orders to reveal their confidential sources.

“Fact-based reporting can be a valuable tool in upholding the integrity of government entities, and investigative reporting can lead to much-needed policy reforms. Even so, local reporters can be forced to testify for investigating important stories, causing them to choose between maintaining the confidentiality of their sources and the possibility of jail,” said Noem. “This Reporter Shield Law will help ensure that investigative reporters can do their jobs without fear of improper legal action. This is a necessary step toward protecting the constitutional right to a free and independent press” [Office of the Governor, press release, 2019.03.08].

From Elisa Shearer, "Social Media Outpaces Print Newspapers in the U.S. as a News Source," Pew Research Center, 2018.12.10.
From Elisa Shearer, “Social Media Outpaces Print Newspapers in the U.S. as a News Source,” Pew Research Center, 2018.12.10.

I’m sorry: it’s hard to take a statement from Kristi Noem on “fact-based reporting” with a straight face.

It’s also hard to take HB 1074 as a serious journalistic reform. Nineteen years into the 21st century, Governor Noem’s shield law fails to recognize anyone writing news online. More Americans get their news from social media than from print newspapers, and more Americans get their news from news websites than from radio, yet journalists like me who work exclusively online are excluded from HB 1074’s definitions and protections.

HB 1074 also strangely corporatizes the protection of sources, saying that only people writing news “for pay” may invoke this new privilege. A lawyer who comes out of retirement to work pro bono for a client may invoke the same attorney-client privilege as any paid partner in a law firm. The clergy privilege statute does not require that a pastor keeping confidence be on someone’s payroll. Nor does doctor-patient privilege depend on money changing hands.

The state’s interest in protecting journalists from improper prosecution and encouraging confidential sources to step forward with important information that may prompt much-needed policy reforms would not seem to hinge on whether the person publicizing that important information is paid or on the medium by which that information is publicized to motivate public action. Yet HB 1074 posits that journalists’ sources deserve protection only if they confide in people who get paid for telling their story and if those stories appear in larger-than-normal pieces of paper, or in periodicals with special Post Office registrations, or on the airwaves courtesy of businesses holding federal broadcast licenses.

The policy changes I might effect by publishing important, sensitive, and factual information from confidential sources on this blog are as important as reforms that might result from stories in newspapers, magazines, radio, or TV. Just like retailerscar dealers, universities, and grocery stores, all of those traditional media are moving their services online. Within our lifetime, the media to which HB 1074 applies may cease to exist.

South Dakota has court precedent and a preceding statute (SDCL 13-1-57) recognizing that journalism includes the new electronic media of this century. That prior statute also makes no distinction between paid and unpaid status of journalists. News matters and confidentiality matters, regardless of whether the journalist making that news public receives a paycheck for doing so.

Despite HB 1074 obsolete corporate view of journalism, I will continue to gather and publish news online, and I will continue to protect the identity of my confidential sources. I look forward to reporting, someday, that Governor Noem, the Legislature, and some amended form of HB 1074 will catch up with me and the rest of journalism in the 21st century.

37 Comments

  1. Kal Lis 2019-03-10

    South Dakota’s traditional media fawns over Governor Noem like the stereotypical nerd fawns over a cheerleader. The odds of any radio, newspaper, or television outlet doing a tough story on her are ridiculously low.

    The only negative coverage she’ll receive is from the blogosphere. So, I expect that, like Trump, she will start asserting that any published reports that contain negative coverage are libel. in the 2020 or 2021 session, she will then start pushing for tighter libel or defamation laws and point to this law as “proof” that she’s not against the first amendment.

  2. grudznick 2019-03-10

    I do understand that fellows like Mr. PP, who the courts have acknowledged is a journalist, and Mr. H would like to be considered gritty beat writers too, however comparing them to licensed and regulated doctors or lawyers who might work without being on a payroll is like saying breakfast leftovers at Hardee’s is just as good as the full Meat Lover’s at Talley’s, only a block away. Now, if bloggers were regulated and could be called journalists then sign grudznick up right away.

  3. jerry 2019-03-10

    NOem is getting positive coverage from the Wyoming legislature and press. They want to encourage her to continue being the idiot she has proven to be, by not passing the hemp legalization bill. Wyoming just passed it and wants NOem to continue so Wyoming can make more profits. The numbers for passing the hemp bill in Wyoming were quite impressive and the Republican Governor signed the bill into law. Good for them and their farmers!!!

  4. Kal Lis 2019-03-10

    Jerry,

    With the farm economy in the tank and old folks being tossed out of closing facilities, have you considered how you’re going to word your apology to Mississippi for calling South Dakota Northern Mississippi?

  5. Buckobear 2019-03-10

    Small steps. I can see the headline now: NOEM BEGINS TO DRAG SOUTH DAKOTA INTO THE TWENTIETH CENTURY.

  6. mike from iowa 2019-03-10

    Shield law will last only until Guv Trumpette Strumpette throws s twitter fit and demands the heads of all journalists on a silver and Black Hills gold tray with South Dakota’s official seal and a likeness of Noem’s horsey on it.

  7. David Newquist 2019-03-10

    There is a more devious aspect to this law. The recent attribution of “anonymous sources not authorized to discuss” matters at hand has obscured a journalistic principle. That principle is that a tip given by a protected source was something that had to be proven by documentation or verified by identified sources. That process was memorialized by
    Woodward and Bernstein chasing down verification of what Deep Throat told them.

    What this law anticipates is officials giving out disinformation which will be attributed to an anonymous source and never checked out or verified, like most of Trump’s claims. And as Kal Lis points out, the South Dakota press corps thinks its function is to grovel in suppliance. Bill Janklow did things in front of the press that they would not report for fear that he would publicly humiliate them. (He lost when he tried to sue the national press.)

    This law is the ground in which officials of the GOP stripe will plant and grow their seeds of disinformation. Those devoted sycophants will never fact check or subject Capitol Dome Gnoem to verification,

  8. jerry 2019-03-10

    Dear Mississippi, it is I, jerry here to apologize to you. I know in the past, we Yankees here have called you names and said you’re stupid, but now I see that you’re so much smarter than we here in South Dakota are. We dummies here see that you have hemp for your farmers and you also have CBD for your citizens. Can you please send someone north to help take away our governor’s desire to look at her belly button and do nothing but pick the lint out during Lent. Oh, and also send someone to pull the Lieutenant Governor’s finger to release the gas that has clouded his melon. We’re number 50, we’re number 50! Hurrah!!

    Distraught in Dakota,
    jerry

    Will that work Kal Lis?

  9. jerry 2019-03-10

    Without Dakota Free Press, South Dakota is doomed to not knowing what is going on in our legislature as well as other very important issues for our state. We are losing journalism in this country and when that happens, we all lose…democracy. Journalists need all the help and protection we can offer. Ring the Bell, here to help keep it going.

    “WAYNESVILLE, Mo. (AP) — Five minutes late, Darrell Todd Maurina sweeps into a meeting room and plugs in his laptop computer. He places a Wi-Fi hotspot on the table and turns on a digital recorder. The earplug in his left ear is attached to a police scanner in his pants pocket.

    Maurina, who posts his work to Facebook, represents the press — in its entirety.

    He is the only person who has come to the Pulaski County courthouse to tell residents what their commissioners are up to, the only one who will report on their deliberations about how to satisfy the Federal Emergency Management Agency so it will pay to repair a road inundated during a 2013 flood.

    Last September, this community in central Missouri’s Ozark hills became a statistic. With the shutdown of its newspaper, the Daily Guide, it joined more than 1,400 other cities and towns across the U.S. to lose a newspaper over the past 15 years, according to an Associated Press analysis of data compiled by the University of North Carolina.”
    TPM By DAVID BAUDER and DAVID LIEB
    March 10, 2019 9:57 am

  10. bearcreekbat 2019-03-10

    Again, I must take issue with Cory’s analysis. Since the new law neither explicitly mentions, let alone excludes, bloggers like Cory who post stories on weblogs, like DFP, I would look to the definitions to see if Cory and DFP are covered or excluded by the statute. The statute I analyze is the last one listed in Cory’s link to LRC.

    http://sdlegislature.gov/docs/legsession/2019/Bills/HB1074ENR.pdf

    First, the new law defines “journalist” as:

    any person who, for pay, is engaged in gathering, preparing, collecting,
    writing, editing, filming, taping, or photographing news for publication in or with a newspaper, magazine, news agency, press association, wire service, or other professional medium or agency that has as one of its principal functions the processing and researching of news intended for publication.

    From the stories I have seen DFP research, investigate and publish over the years, it seems a difficult argument to claim DFP somehow is not a “professional medium or agency that has as one of its principal functions the processing and researching of news intended for publication.” And since DFP solicits financial support through voluntary payments from its readers, which presumably go to Cory, it would seem he qualifies as a paid “journalist” under the statutory definition.

    I note the statute doesn’t define “broadcaster,” but the older dictionary definition seems to be along the lines of “an organization that transmits a program or information by radio or television,” i.e., electrical methods. These days, the idea of broadcasting or a “broadcaster” includes publishers broadcasting through or on the internet.

    Broadcast journalism is the field of news and journals which are “broadcast”, that is, published by electrical methods instead of the older methods, such as printed newspapers and posters. Broadcast methods include radio (via air, cable, and Internet), television (via air, cable, and Internet) and the World Wide Web.

    https://en.wikipedia.org/wiki/Broadcast_journalism

    And given the fact that SD law employs the normal rule requiring a liberal construction of statutes, the term “broadcaster” should be construed to include using the internet along with television and radio. Indeed, many such postings are streamed from the internet to television.

    SDCL 2-14-12. . . . the law of this state respecting the subjects to which it relates and its provisions and all proceedings under it are to be liberally construed with a view to effect its objects and to promote justice.

    Thus, since DFP frequently posts videos and podcasts, along with news stories, that function as news to be published by “news broadcasters,” such as internet websites and subscribing television stations, a normal “liberal” construction of this new law would treat DFP as a “news agency.” Such a construction of the statute is consistent with the statutory definition: “any organization that supplies news to subscribing . . . news broadcasters.” And the point becomes even stronger since the new law does not explicitly exclude blogs like DFP.

    The above analysis suggests that there may well be a much broader construction of the new law than might appear at first glance. It is entirely possible that others might raise arguments more consistent with Cory’s initial concerns, but my bet is that a rational court would agree with my analysis and rule that the statute protects Cory’s efforts. If so, this is a circumstance in which I am happy to identify an alternative construction of the statute more favorable to Cory and DFP.

  11. mike from iowa 2019-03-10

    I think there is a clear case for trolls to be admitted to journalism. They get paid to spread false and inflammatory stories. Nothing was said about the content being factual or verifiable.

  12. Kal Lis 2019-03-10

    jerry,

    I just asked if you had considered the wording. As usual, you went above and beyond.

    BCB,

    I hope your interpretation is correct, but “a rational court” seems about as rare as Quaker mercenary.

  13. grudznick 2019-03-10

    Mr. Mike, you may be from Iowa, but you could be right. Journalists, Lawyers, Lobbists and probably Trolls all get paid to spread stories regardless of facts or verification. Even a blind Iowegian pig falls into the goat pen and finds a Brazil nut once in a while.

  14. Adam 2019-03-10

    Think about this for a second:
    A bunch of rural Fox News and Rush Limbaugh fans (SD State Legislators) are now claiming they are passionate about truth and transparency in reporting. For years now, they’ve seen the truth (real news) as ‘liberal’ and so they’ve thus preferred to live in a fantasy world of lies to avoid what believe is ‘liberal indoctrination.’

    This specific bill, and the legislators who supported it, should become a laughingstock for the United States of America.

  15. grudznick 2019-03-10

    One happy thing about Mr. H’s pictures is that newspapers are dying faster than even grudznick has counted before. We can all agree about that. Stop buying those news papers.

  16. Adam 2019-03-10

    Grutz has also forfeited his right to an opinion about truth and transparency in reporting by virtue of all that he is.

  17. jerry 2019-03-10

    “Rare as A Quaker mercenary.” Good one. There are Calvinist mercenaries though.

  18. mike from iowa 2019-03-10

    Grudzilla, I grade out 100% pure iowan. You should be half as blessed.

    What is the big deal with a so called female Guv of a state that is as corrupt as Northern Mississippi? She herself has been a major part of that corruption while attending official doings in DC on occasion.

    I hope the press and the blogs hold her feet to the fire and clean this mess up.

  19. grudznick 2019-03-10

    Mr. Adam, how so?

  20. grudznick 2019-03-10

    grudznick got all your goats, Mr. mike, even the ones that are banished because you can’t get the Certificate of Veterinary Inspection.

  21. Debbo 2019-03-10

    DFP’s Biggest Liar, Grudz/Jeremiah Murphy, has nothing worth hearing to say. If you want my goat, Murphy Biggest Liar, you can have it. Take my goat and your Big Lies somewhere else and play together, you and the goat. The 2 of you make an appropriate pair. Mike, wanna give Jeremiah Biggest Liar your goat too? He wants to “have fun with them,” I guess. Everybody, send your goats to Jeremiah Biggest Liar. Let them keep him busy.

  22. grudznick 2019-03-10

    Ms. Geelsdottir, are you an old short-haired woman or a junior high girl having a hissy fit?

  23. Debbo 2019-03-10

    I have a hard time believing Noem and the SDGOP want to protect journalists. I’m inclined to be skeptical. BCB’s analysis seems sound, as usual, but I’m leaning more towards Dr. Newquist’s expectations of how this will actually play out. The SDGOP is not– is Not –altruistic and especially not interested in protecting anyone who might be critical of them.

  24. Roger Cornelius 2019-03-10

    Debbo,
    Some people like Grudz/Jeremiah come to DFP to do nothing but take up space, distract and interrupt intelligent conversation.
    Truth to tell, I can not recall a time when Grudz has ever made a significant contribution to any thread.
    1st Amendment protections for the media and its ever expanding role in reporting of history as it develops should be a given.
    Cory is the only blog in the state that provides comprehensive coverage when the legislature is in session. There is no other blog, newspaper or broadcast media that comes close to what Cory reports.
    I have always liked reading the news and am disheartened by what is happening with our print journalism.
    I shouldn’t have to point out Cory’s investigative skills as a reporter. Regardless of how the EB-5 and other scandals turned out, Cory was right in his reporting.

  25. Debbo 2019-03-11

    Thanks Roger. I rarely read Jeremiah’s comments, especially when he addresses me. I know Biggest Liar has nothing worth reading. 🙂

    Yes, Cory is probably one of the best reporters/analysts in SD. I’m sure the SDGOP doesn’t like that about him.

  26. leslie 2019-03-11

    Perhaps this protects Fox News from consequences of its propaganda?

  27. Adam 2019-03-11

    Ya see, we gotta put a ‘shield’ between reporters, the news, and everyone else. Gotta block the facts from peoples eyes – create a forcefield of BS to keep country folk dumb – only way to save our newspapers and preserve Fox News and Rush Limbaugh for years to come.

    Ain’t seen no liberal come up with nothin better.

  28. Cory Allen Heidelberger Post author | 2019-03-11

    Nerd note: I counted myself among the nerds (most others counted me there, too), and I did not fawn over cheerleaders.

  29. Cory Allen Heidelberger Post author | 2019-03-11

    Nerdosity aside, Kal Lis hits on a really interesting sub-motive, possibly unique to South Dakota, for focusing solely on commercial journalists. The commercial media in South Dakota are beholden to the corporate and political elites more so in our one big small-town state than they might be in other states. Noem knows she doesn’t really have to worry about heavy boat-rocking from most of the paid reporters who kid-glove her and the GOP to keep themselves out of trouble. They’re already cowed. She just needs to set the stage for ways to attack the non-professionals, the troublemakers who can’t afford to fight a libel suit. HB 1074 sets up a counterdefinition of “journalist” that prevents me from pointing to the Chapter 13-1 definition of journalist in court as the only statutory guidance a judge may consider in some anti-blogger action.

    Watch the long game, friends.

  30. Kal Lis 2019-03-11

    Cory,

    I have never considered you stereotypical.

    Don’t get me started on the nerd vs. geek tangent.

  31. Cory Allen Heidelberger Post author | 2019-03-11

    David, too, identifies a disturbing potential aspect of the long game. Could HB 1074 really be part of a longer disinformation plot?

    Let me throw some skepticism at the question: what disinformation could the Noem regime sow under HB 1074 that it can’t already through other means? What motivation would Jonathan Ellis and Seth Tupper have to run such disinformation? The shield law would allow them not to reveal that their source was Kristi or Kennedy or McCaulley or some part of her machine, but doesn’t stop some injured party from suing the newspapers for defamation.

  32. David Newquist 2019-03-11

    As public figures are exempted from defamation suits except when the malice can be proven extreme, the media are protected as long as they are reporting what some official said. But that is the danger of quoting anonymous sources, because the media then assumes a responsibility. An old comrade in journalism from the Chicago Daily News, George Thiem, won a Pulitzer when he proved that 10 newspaper editors were on the payroll of the Illinois governor for writing laudatory pieces for the governor and detractions for his opponents. I have seen such pieces in the state media, particularly during the Janklow years, although I doubt anyone was getting paid. They were just inclined to suck as part of what they regarded the power structure. I think the Capitol Gnoem has that kind of following.

  33. Cory Allen Heidelberger Post author | 2019-03-11

    Bearcreekbat, when I go to court under HB 1074, remind me of your comment above. You’re pretty good!

    Now, not that I should argue against my own counsel… but…

    BCB’s older definition of “broadcast” says “by radio or television.” His turn to an i.e. seems fatal to his argument: if the definition is “radio or television,” can he really impute to those old-timey definers an intent to cover any means of disseminating news involving electrical methods?

    Whatever the definitions, Section 2 makes clear HB 1074 covers journalists only when they are “gathering or obtaining news for publication in a newspaper, magazine, or for broadcast by a radio or television transmission station or network” working for or associated with “the newspaper, magazine, or radio or television transmission station or network.” Those conditions seem to preclude any appeal to a properly broad definition of “journalist”; I’ve got to be journalizing for a newspaper, magazine, radio station, or TV station.

    I do produce audio and video, but not yet in the clear employ of any broadcaster, and not with any clear association with any such broadcaster.

    I know—I’m an ingrate.

    So, members of the jury, who’s right here, BCB or me?

  34. Cory Allen Heidelberger Post author | 2019-03-11

    But wait:

    What if we hang onto BCB’s favorable and broad interpretation of “journalist,” an interpretation one South Dakota judge has already acknowledged favorably, then use that broad definition to say that HB 1074 carves out an unreasonable exception?

    The state here acknowledges that a certain privilege is important to journalists’ proper exercise of the First Amendment. Yet the state arbitrarily divides journalists into separate classes, one that gets the opportunity to exercise its First Amendment rights to the fullest, another that doesn’t. Is such an arbitrary separation defensible?

  35. David Newquist 2019-03-11

    I need to clarify that number of 10 editors. There were almost 40 newspapermen on that payroll, but 10 were weekly or very small daily editors in locations that were considered to have key constituencies. Their columns lauded the governor in ways to increase his appeal in those localities. After Thune, lost very narrowly to Tim Johnson, he tried a similar strategy against Tom Daschle in addition to those broadside attacks picturing Daschle next to bin Laden, suggesting Daschle was treasonous, and a betrayer of his wife for a beauty queen.

  36. Debbo 2019-03-12

    Hmmm. I thought the US had a journalist shield law, but perhaps not in the world of Frantic Flaccid Fool. Per the Strib, https://goo.gl/gcVYev

    “the U.S. government has developed a secret database of journalists, as well as activists, tied to the largely Central American caravans traveling through Mexico. In several instances journalists were stopped for secondary screenings at the U.S.-Mexico border and, in some cases, there were alerts placed on their passports.”

    “Freelance photojournalist Mark Abramson told the organization that U.S. border agents searched his notebooks, which of course could have contained names of sources who were promised protection. He also was required to leave his bag and phone behind while questioned.”

    “This would be an excellent time for so-called constitutional conservatives, particularly in Congress, to let the Trump administration know that using federal government agencies such as Customs and Border Protection to single out, if not intimidate, journalists is wrong and must stop.”

    “Undermining journalists can create a chilling effect and jeopardize scrutiny of public policy decisions made on behalf of U.S. citizens. It is more than the journalists’ livelihoods, if not lives, that are interrupted, it is Americans’ right to know what is happening in the world.”

    The editorial indicates that President Obama also infringed on press freedom:
    “The Obama administration drew criticism in 2013 for secretly obtaining phone logs and e-mails of reporters as part of leak investigations, and officials often made it difficult to obtain information requested under the Freedom of Information Act.”

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