South Dakota moves closer to adopting Shield Law
By:   //  Investigative Reports

One of the few remaining states without a reporter Shield Law is moving closer to adopting one.

South Dakota’s House of Representatives passed the journalists’ Shield Law last week. The bill now heads to the state Senate.

Shield laws protect journalists and newscasters from being legally forced to reveal confidential sources of information or be compelled to testify in court about sources. Known as ‘reporter’s privilege,’ the law if passed will only protect professional journalists. Bloggers and citizen journalists will not be covered.

Although South Dakota has no Shield Law, courts recognize a privilege for sources is qualified or contains exceptions.

The Need For a Shield Law

Currently 40 states have enacted specifically tailored shield laws. The rest of the states, with the exception of Wyoming, protect a reporter’s privilege through other league means such as case law or the state constitution.

The Columbia Journalism Review explains the need for a shield law because “Generally, any person who is asked or ordered to testify at a legal proceeding, or to produce documents relevant to one, is required to comply. If the person doesn’t, she’s subject to a contempt finding, which means a judge could put the person in jail, or fine her, or both. The penalty’s chief purpose is not to punish—it’s to extract compliance.”

It continues, “There are exceptions called privileges. The most famous is the attorney-client privilege that exempts an attorney from testifying against a client about confidential communications. Many states recognize similar privileges for medical doctors, therapists, religious advisors, and spouses. They all stem from the belief that there’s a public interest that justifies the exclusion of testimony by certain people against others.

“For example, the attorney-client privilege recognizes that clients need good advice, and they can get it only if the client is honest with the attorney. The client might not be honest if she thought her attorney could be called to testify against her. So rules developed that exempt attorneys from testifying against clients in most circumstances.”

More from the CJR: “Journalists have argued that they should have a privilege for roughly analogous reasons. They rely on sources to provide the news they publish, and those sources might not share sensitive or critical information in the absence of anonymity—out of fear that they’ll be punished for sharing it. So privileges developed protecting journalists, because there’s a public interest in encouraging the disclosure of newsworthy information.”

The Bill 

House Bill 1074 establishes journalists and newscasters as being, ‘any person who, for pay, is engaged in gathering, preparing, collecting, writing, editing, filming, taping, or photographing news’ for a wide variety of outlets, including student journalists.

What is not included in HB1074 is a provision for bloggers and other social media-based operations not affiliated with credentialed news sources, publications, or call letter broadcast stations.

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