Breaking the Shield

In June, 1980, the voters of California enacted a state ballot proposition that gave constitutional protection to a right already afforded journalists by statute--the right to say no to judges and other authorities who might try to force them to disclose their confidential sources or to reveal unpublished information gathered on their beats. The newsman’s shield was added to the state Constitution because of half a dozen celebrated cases in which judges had overridden the statute, ruling that it had to yield if it conflicted with a defendant’s right to a fair trial or with legitimate court orders. Once Proposition 5 passed, journalists assumed that in any future courtroom confrontation they could not be held in contempt for refusing to hand over their notebooks or to testify about what they had seen on the job--that’s what the state Constitution said.

And yet, once again, a California court has chosen to ignore the newsman’s shield. A state Court of Appeal ruled earlier this month that Times staff writer Roxana Kopetman and intern photographer Roberto Santiago Bertero could be forced to testify in Long Beach Municipal Court about events that they witnessed while preparing an article about a Long Beach police sweep of a shopping mall. Citing the shield law, the two Times journalists had declined to answer questions about whether a 21-year-old man later charged with possessing brass knuckles, a misdemeanor, had consented to the police officers’ search of his jacket. In a story published last Sept. 27, Kopetman had written about the arrest but did not specify whether the young man permitted the search. His consent became important because the police probably had no reason to stop him--he had been sitting quietly at the mall--and no probable cause to search him; without his consent, the search would likely be ruled unconstitutional and the brass knuckles excluded from evidence.

Justice Robert R. Devich, writing for the Court of Appeal, said that the newsman’s shield had no application because journalists have the same duty as any bystander to testify about what they witness at a public event. Unless confidential sources would be revealed, the shield does not come into play and “there is no basis to differentiate the newsperson’s observation of the event from that of any other citizen,” Devich wrote.

We would agree with Devich that a Times reporter who, say, wanders into a liquor store on his way home from work and witnesses a holdup could not invoke the shield and refuse to testify. Off the job, a journalist is no different from any other citizen. But the Times reporter and photographer were working and would not have witnessed the arrest if they had not accompanied the police officers for the express purpose of writing a story about Long Beach’s controversial program to rid the downtown of undesirables.

Forcing the two journalists to testify about anything that they saw on the job but did not publish clearly violates the letter of the newsman’s shield: The Constitution says that reporters cannot be held in contempt “for refusing to disclose the source of any information” or “for refusing to disclose any unpublished information” obtained while reporting a story. The appeal court, in effect, ignored the second half of the provision.

Devich’s opinion also seems oblivious to the shield’s purpose--ensuring the free flow of information. If the two journalists were compelled to testify, what effect would that have the next time a reporter asked a police officer to let her accompany him on his rounds? We submit that officers won’t want a reporter looking over their shoulders if there’s some chance that she may later dispute on the witness stand the official version of how an arrest was made; the police may simply refuse to let her ride along, which would deprive the public of worthwhile information. And if the reporter supports the police version she may be no better off; she is likely to be regarded by the defendant and other witnesses as an arm of law enforcement.

If the appeal court’s views are upheld, the danger is that the California media may be converted into free investigators for all litigants. In the course of their work, journalists frequently gather information about all kinds of crimes and witness all sorts of public events. Will they be summoned to court and asked to testify every time a story evolves into a lawsuit? That’s the prospect. While we acknowledge that, as members of the media, we would resent that imposition on our time and resources, we believe that the public’s interest will also suffer if media autonomy is compromised.