Reporter rights: Massachusetts case rekindles US debate
Boston — Does a reporter have the right to withhold from a grand jury or court information gained in confidence from a news source? This much-debated but still largely unanswered question has surfaced anew here in Massachusetts, on two fronts:
* The state Supreme Judicial Court is expected to decide in May whether Boston Herald-American reporter Paul W. Corsetti must go to jail for refusing to tell a grand jury what he was told last year by a Florida prison inmate about a 1978 murder in Lowell, Mass.
* State lawmakers are considering a law which, to a limited extent, would protect a newsmen from being forced by courts or law enforcement agencies to divulge either a source or what they are told in confidence.
Similar so-called "shield laws" are on the books in at least half of the states from Rhode Island to Alaska, with varying degrees of effectiveness.
Within the past decade eight states have added such statutes and several others have strengthened those already in place.
New Jersey earlier this year completed action on a toughened reporter's rights protection measure. The statute requires a newsman to turn over his notes only after a court hearing. Also, those seeking the information must prove there is no other way it could be obtained and that it is essential to the defense in a murder trial.
The push for the stronger New Jersey shield law came after New York Times reporter Myron Farber was jailed last year for refusing to turn over his notes for use in a murder trial. Had the statute been on the books two years ago, Mr. Farber probably would not have been sent to jail. He served 40 days for contempt in refusing to turn over his notes.
While prospects for passage of a Massachusetts statute specifically giving newsmen the right to protect sources are at best uncertain, support for such a measure has increased since the March 24 contempt-of-court citation against Mr. Corsetti.
Like the strengthened New Jersey statute, the proposed shield law for Massachusetts would not convey an absolute privilege of confidentiality.
A newsman could be forced to divulge his source and testify if a person's life were threatened or a crime were about to be committed, provided this could be proved to a judge. The limited protection also would not apply to libel cases. In every instance, however, those seeking the confidential information would have to prove what is being sought could be obtained in no other way.
Mr. Corsetti says he believes that, had such a shield law been on the Bay State books when he refused to answer questions concerning his interview with the prison inmate, it is doubtful he could have been cited for contempt.
The Boston reporter's contention is that police investigators already have similar information and what he might add is not needed.
Mr. Corsetti says he gave the murder suspect his word he would not divulge the information he gathered, including the names of two alleged accomplices, in the courts.
"If I go in and testify, professionally nobody will trust me again," he says. Mr. Corsetti argues, as other reporters in similar circumstances have, that if he is forced to testify, sources won't come forth with things they feel should be kept confidential.
Shield-law foes argue that the First Admendment's provision for freedom of the press does not exempt newsmen from cooperating like any other citizen in testifying about alleged crimes. The public's interest in undercovering wrongdoing generally is more important than the news media's interest in protecting sources, opponents contend.
The Massachusetts proposal lacks the support of the association representing the publishers of most of the state's daily newspapers. Support by similar groups in other states has been instrumental in getting shield laws passed.
The Massachusetts Newspaper Publishers Association is "split about evenly between those who think we need it and those who don't," reports executive director Joseph L. Doherty. He notes that a survey of members last year produced a 26-to-26 vote on the matter.
The difference of opinion stems from concern that a shield law might limit freedom-of-press rights under the First Amendment.
Opposition or indifference to shield-law legislation appears to be softening within the state publisher's association, of which Mr. Corsetti's paper is not a member.
In contrast, the New England Press Association, comprising smaller dailies and weeklies from around the commonwealth and elsewhere in the region, has been and remains in the forefront of the shield-law push.
George A. Speers, general manager of the regional press association, has filed the reporters' source-protection measure each year for the past eight years. In 1971 a shield law almost made it through the Legislature, only to be narrowly defeated in the House of Representatives in a wave of antipress sentiment following the publication of the Pentagon papers.