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Journalism professors argue for extending shield laws to protect student journalists

Mon, 11/14/2016

LAWRENCE — In our quickly changing media landscape, student journalists have stepped forward to meet their communities’ news needs, often doing work that was once considered the exclusive domain of full-time journalists. And they’ve done so without the legal protections of their professional counterparts. A new study by three University of Kansas journalism professors analyzes laws across the nation that grant journalists the right to protect confidential sources and information from compelled disclosure, finding that they rarely apply to student journalists.

Such protections should be expanded to journalists at the high school and college levels, argue the authors, including Assistant Professor Jonathan Peters, Associate Professor Genelle Belmas and Assistant Professor Peter Bobkowski, all in the William Allen White School of Journalism & Mass Communications. The article is forthcoming in the Fordham Intellectual Property, Media & Entertainment Law Journal, and it has been presented at the national conference of the Association for Education in Journalism and Mass Communication. It is the first comprehensive academic analysis of these issues.

The landmark Supreme Court case Branzburg v. Hayes found that reporters, generally, do not have a First Amendment right to refuse to divulge their confidential sources, but a concurring and dissenting opinion laid the groundwork for how such a privilege could work. That language is now found in numerous state statutes, court decisions and procedural rules giving reporters a basis to resist the compelled disclosure of their confidential sources and information.

“The big question was, ‘Does the reporter’s privilege, in its various forms, cover student journalists?’” Peters said. “Overall, this is an area that hasn’t seen much activity in the courts, and it has gotten virtually no critical or sustained attention from scholars.”

The study analyzes shield laws from across the country and categorizes them, finding that only two states, Maryland and West Virginia, explicitly protect student journalists. Meanwhile, in Ohio, educational organizations where student journalists work are covered. The rest of the states define who is protected by factors such as employment, amount of compensation, readership, publication frequency and producing news for the general public—all of which do not favor student journalists.

Some commentators have wondered why it would be necessary for student journalists to receive such protection, claiming, for example, that they only produce news for their fellow students or for small, niche audiences. But as the media landscape has changed and reporting staffs have shrunk, student media, especially college publications, have provided coverage of their communities on a larger scale than before. For that reason, the authors argue, student journalists deserve the same protections as full-time journalists. Foundations and journalism schools have also encouraged students to take on larger roles in meeting the news needs of their communities.

“We have seen, in the last 10-15 years, a lot of changes in the media industry,” Peters said. “One group we’ve seen step up consistently is student journalists. In our First Amendment tradition, we protect the lonely pamphleteer as much as The New York Times, and in the context of shield laws, it’s untenable to ask students to do more—with fewer legal protections. It’s unwise and unfair.”

Some states do not have shield statutes but make it possible to claim a reporters’ privilege through common law principles or through the federal or state constitutions. There is not a federal shield statute, and in these states, it is unclear how student journalists would be treated.

The article argues for the strengthening of shield laws and to extend them to protect student journalists. In states where students are not covered, the authors argue that the laws should be changed. While it is not common for student journalists to be compelled to testify, one recently was jailed for refusing to disclose sources.  

“This is not a contrived, theoretical problem,” Peters said. “With the expanded roles we’re asking student journalists to play, this could happen more frequently. I still handle cases as a media lawyer, and I had a student journalist shield case just two years ago. If we are asking students to produce informative, investigative journalism, it’s imperative to give them the tools they need to produce it.”

There are more high school and college journalists working today than full-time professional journalists, and on the college level, many students are forming their own news organizations or collaborating with professional outlets to provide coverage on important topics such as state and national government. Providing that coverage is important, then, to the public to ensure continued watchdog journalism and to news outlets that will need to hire skilled, experienced journalists in the future.

“Today, perhaps more than ever, we need young people to be educated about the vital role that the free press has played in the history of our country so that they may carry on this important legacy into the future,” Bobkowski said. “Reporter's privilege is one element of the free press that has played an important role in supporting the vitality of our democracy.”

From top: Jonathan Peters, Peter Bobkowski, Genelle Belmas.



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