State Justices Hear Debate on Reporter’s ‘Shield Law’ : Supreme Court: Vigorous arguments for and against journalists’ protection are made. At issue is whether they can be forced to testify on unreported events.

In a case presenting a sharp conflict of competing rights, the state Supreme Court heard a robust debate Tuesday over whether reporters may be forced to testify about events they witness but do not include in news stories.

The justices peppered the opposing sides with questions in a dispute that could resolve major questions about the extent of protections under the reporter’s “shield law”--and how they must be balanced with the rights of the prosecution and defense to witnesses’ testimony.

The lawyer for a Los Angeles Times reporter and photographer argued that the law, placed in the state Constitution in 1980, gives journalists “clear and unequivocal” protection from being held in contempt for refusing to disclose unpublished information they obtain on the job.

At the very least, said attorney Rex S. Heinke, before journalists are compelled to testify, it must be shown that their testimony would be important and relevant and cannot be obtained from other witnesses.

But prosecuting attorneys and a defense lawyer joined forces to argue that the privilege is intended only to protect confidential information obtained by a journalist. Granting more sweeping protections would frustrate the prosecution’s ability to obtain evidence and deny a defendant’s constitutional right to a fair trial, they said.

Long Beach City Prosecutor John A. Vander Lans said it would be a “mockery” to elevate the legal status of reporters to the point of denying a fair trial. “We’re not playing a game here,” he said. “We’re trying to get to the truth.”

Los Angeles Deputy Public Defender Albert J. Menaster warned that if the journalists’ contentions are upheld, theoretically a robbery could occur in the courtroom and everyone present could be forced to testify except news reporters. “That’s their position and it’s absurd,” he said.

The case arose in September, 1987, when Times reporter Roxana Kopetman and photographer Roberto Santiago Bertero were accompanying Long Beach police on patrol in a downtown area in response to complaints about drugs, thefts and panhandling. During the patrol, officers questioned Sean Patrick Delaney, 21. After searching the man, they arrested him for unlawful possession of brass knuckles.

In court, Delaney contended that he had not consented to the search and that the seizure of the brass knuckles was illegal because police had lacked reasonable suspicion that he was armed. A Times article mentioned Delaney but did not say whether he had consented to the search.

Both the defense and prosecution sought to get the Times journalists to testify, but they refused, citing the shield law. A judge held both in contempt, and Kopetman ended up spending six hours in jail.

Later, a state Court of Appeal ruled against the two journalists, who then took the case to the high court. The journalists contended that without protections under the shield law, reporters would spend much of their time in court testifying about what they had seen, effectively serving as “free private investigators” for litigants. If reporters became perpetual witnesses for one side or the other, the journalists said, the public’s perception of them as objective sources of information would be undermined.

In Tuesday’s hourlong hearing, the justices questioned Heinke closely on his contention that the shield law gives reporters unqualified protection in refusing to disclose unpublished information.

When a reporter is the only neutral witness, asked Justice Stanley Mosk, doesn’t such refusal “thwart the administration of justice?” The attorney denied that would occur, saying that other witnesses could be called first to determine whether Delaney had consented to a search.

Some court members also appeared skeptical of the claim by prosecutors and Menaster that the shield law was meant only to protect confidential information. The justices noted that the language of the constitutional amendment enacted in 1980 barred contempt proceedings against journalists for refusing to divulge “any unpublished information” obtained while they were gathering news.

Long Beach Deputy City Prosecutor Gerry L. Ensley pointed to ballot arguments supporting the amendment that stressed that it would allow reporters to protect confidential sources. Ensley told the justices that they would be committing “outright fraud” to extend the shield to protect the mere unpublished observations of reporters.

A decision by the court is due within 90 days.