Harsh rule put on free speech

By Bob Charlanza
Eastern Poconos Community News

Several times over the past four years we have stressed that the freedom of speech rights of journalists are no more than those of the common citizen. Too often, the average citizen fails to make that connection.

But when journalism rights are abridged, it is really the citizen who is losing more of his rights. The citizen also loses another voice, another opinion, another way of looking at an issue.

Sorry to be the one to bring you bad news on this front.

Pennsylvania's Supreme Court has dealt freedom of speech rights a severe blow in a ruling on Dec. 19.

It ruled that unpublished information gathered by two Philadelphia reporters are not protected by the Pennsylvania Shield Law because the source of the information — a homicide suspect — was known.

But the court remanded the appeal of fines levied against the reporters, set by the trial court at $40,000 for each, to the lower court. In other words, it took the $40,000 monkey off the reporters' backs as being excessive.

As its parent, the Pocono Record, the Community News is a member of the Pennsylvania Newspaper Association, whose media law counsel, Teri Henning, addressed the issue in Headlines & Deadlines earlier this month.

While the ruling doesn't attack the state's Shield Law directly, it certainly cripples it and the far-reaching ramifications are that it makes it much easier for reporters to be subpoenaed to give testimony on legal fishing expeditions and provide all documents, including their notes.

The court has ruled that the Shield Law does not protect reporters' unpublished information when the source becomes public knowledge. The decision revolves around an appeal of the Philadelphia District Attorney in Commonwealth v. Bowden.

The DA attempted to subpoena testimony and documents from two reporters, one for The Philadelphia Inquirer and another for the Philadelphia Tribune, regarding their conversations with a criminal defendant in which he claimed that he shot and killed a drug dealer in self-defense.

The DA had charged him with first degree murder and wanted all the information he provided — including that which wasn't published — from the reporters. The DA said it wanted to check on discrepancies in the story.

The reporters and their newspapers said they have a broad right to protect such information from such a legal hunt and went to court.

It was this broad tradition that has been taken away by the ruling.

The court ruled that the Pennsylvania Shield Law protects only confidential source information and not the broader category of unpublished information. Because the criminal defendant was a disclosed source, the court said, it concluded that the Shield Law did not apply to the subpoenas, saying the prosecutor satisfied the requirements to overcome the privilege by showing that the reporters were the only witnesses to the conversations and because anything the defendant said about the killing was crucial to the prosecution's case.

This has watered down the First Amendment privilege and makes it easier for authorities to obtain all information provided reporters.

The opinion can be found at http://www.courts.pa.us  on the Internet.

Here is an example that comes to mind. Some years ago in Reading, a police reporter was summoned to jail by a robbery-murder suspect, who wouldn't talk to police.

For whatever reason, the suspect gave his confession of the crime in his own words to the reporter which was published in the local paper.

Under the broad interpretation, police could ask the reporter to sign an affidavit to the effect that the published report was the confession he received and that would be the end of it. He would not be forced to testify to anything else.

But under the new ruling, the reporter's notes can be obtained, and he can be questioned about whatever else the suspect said.

There is no doubt that the ruling will put a chilling effect on freedom of speech regarding unpopular views of an issue or an effort to rectify police misdeeds.

And this comes in an era when most newspapers shy away from stories involving unnamed reliable sources. 

Under our system of checks and balances, only the legislative branch could overturn this ruling by rewording the Shield Law to the favor of the broader interpretation. Such a new law would have to upheld by the courts. 

Since the state's Trial Lawyers Association is the most powerful lobby in Harrisburg, what do you think the chances are that such a law could be passed?

Pennsylvania already was regarded as one of the states with a weak Shield Law. So it is doubtful our legislators would go to bat for a newly worded law, even if it found a model Shield Law in another state.

Of course, you could write letters to your elected representatives suggesting that the closer the press remains unfettered the closer you are to safeguarding your democratic rights through getting all the information you can get. 

Send this paper a copy if you do write and we will publish your views. Meanwhile, letters to the editor on the issue would be welcomed.