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].
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 retailers, car 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.