By Thomas Mitchell
Normally those in the press don’t seek any privilege not accorded any other citizen, but by the very nature of the job — showing up at fires and car crashes, attending public meetings, poking into nooks and crannies of government and society, asking questions and quoting people — there needs to be a means to help keep the press independent.
That is where the Nevada press shield law comes in. It prohibits dragging members of the Fourth Estate in for a third degree interrogation. Otherwise, there would be little incentive for people to talk to reporters, because that reporter could be forced to testify against them.
This past week the Nevada Supreme Court once again upheld the state shield law that states: “No reporter … may be required to disclose any published or unpublished information obtained or prepared by such person in such person’s professional capacity in gathering, receiving or processing information for communication to the public, or the source of any information procured or obtained by such person, in any legal proceedings, trial or investigation …”
The case involved Las Vegas television producer Dana Gentry, whose reporting had proven embarrassing to the son of former Gov. Kenny Guinn, Jeffrey Guinn, the majority owner of two financial services companies bearing the name of Aspen. Guinn and his companies had been sued by investors who alleged breach of statutory, contractual and fiduciary duties.
Aspen countersued, claiming, among other things, defamation. Aspen accused Gentry and the investors of generating embarrassing news stories and that the investors gave Gentry gifts that included work on her home and the hiring of the son of two of the investors at the television station where Gentry also worked.
Aspen sought a subpoena for information about those “favors,” but a local judge quashed it, citing the shield law, and Aspen appealed to the state’s highest court.The opinion by Justice Michael Douglas relied heavily on a case from 2000 that greatly strengthened the state shield law by striking down previous rulings from the court. In that case attorneys had subpoenaed Las Vegas Review-Journal reporter Glenn Puit to ask him about an interview with a state trooper following a fatal automobile accident. Puit invoked his shield law privilege.
Justice Myron Leavitt’s opinion then stated: “Nevada’s news shield statute serves an important public interest and provides absolute protection against compelled disclosure to ensure that through the press, the public is able to make informed political, social and economic decisions.”
Leavitt also wrote that “an effort to use the news media to produce evidence beneficial to a litigant is not a function of the news media, and the shield statute protects it from such abuse.”
In the current case involving Gentry, Justice Douglas basically accused Aspen of making a self-defeating argument. While Aspen claimed it subpoenaed Gentry to affirm its suspicions about her motivation for producing negative news stories, Douglas concluded the subpoena was an attempt to confirm the identities of her sources.
As the identity of a reporter’s sources is information that is protected under the plain language of the news shield statute … (protecting from disclosure ‘the source of any information procured or obtained by’ a reporter), we conclude that the information sought was facially protected under the news shield law,” Douglas writes.
That doesn’t put the press above the law. Both Leavitt and Douglas said the shield can be broached, but only under serious constitutional circumstances.
“We further recognize that although the news shield statute provides an absolute privilege to reporters engaged in the newsgathering process, there may be certain situations, e.g., when a defendant’s countervailing constitutional rights are at issue, in which the news shield statute might have to yield so that justice may be served,” Leavitt wrote and Douglas quoted.
That was not the case for either Puit or Gentry.
(By the way, the term Fourth Estate was coined by Irish philosopher Edmund Burke, who observed that in Parliament there were three “estates” — the House of Lords, the House of Commons and the nobility and clergy. Thomas Carlyle wrote in 1840, “Burke said there were Three Estates in Parliament; but, in the Reporters’ Gallery yonder, there sat a Fourth Estate more important far than they all. It is not a figure of speech, or a witty saying; it is a literal fact … Whoever can speak, speaking now to the whole nation, becomes a power, a branch of government, with inalienable weight in law-making, in all acts of authority.” Sometimes the press even lives up to that role.)
Thomas Mitchell is a longtime Nevada newspaper columnist. You may email him at firstname.lastname@example.org. Read additional musings on his blog at http://4thst8.wordpress.com/.