Without Reporter’s Shield Laws, who Would be willing to Speak up?
Presented at the 124th annual convention and trade show
Of The National Newspaper Association
Sept. 30 to Oct. 3, 2010, in Omaha, Neb.
By Les Anderson
Professor, Elliott School of Communication
Wichita State University, Wichita, Kan. 67260-0031
††† Note: This paper has been greatly condensed, without detracting from its original meaning. My primary purpose in posting this shortened version is to emphasize the political nature of the defamatory campaign that was unleashed against me when I objected, in a civil manner, and on appropriate grounds , to the unprotected status the bill leaves reporters in rural western Kansas. It’s a “whole other country” from the eastern part of the state.
In February 2007, Doug Anstaett, executive director of the Kansas Press Association, addressed members of the Senate Judiciary Committee in the Kansas Legislature about a proposed reporters’ shield law.
Anstaett told the legislative committee that we in America can handle the truth, and that it is the job of professional news gatherers to do their best to deliver that truth to citizens.
“The American people have shown time and again throughout our history that not only can we handle the truth, we demand it as an absolutely essential ingredient of our form of government,“ he said.
Without the protection afforded by the proposed reporters’ shield law, however, Anstaett said in 2007, sources will continue to be intimidated and will continue to choose to not come forward, and journalists will not learn what public officials and others want to hide.
The proposed shield law didn’t gain much traction in Kansas for several more years. One of the problems Anstaett and the state’s journalists faced was providing real-life evidence to back up their request for new legislation.
In the fall of 2009, Anstaett, the press association and journalists in Kansas got the ammunition they needed. Claire O’Brien, a reporter in Dodge City, had been subpoenaed to testify at an inquisition, where she would likely be ordered to give up her unpublished notes and her confidential source for a story in a local murder case.
According to an Associated Press story by John Hanna, the county attorney was trying to force O’Brien to hand over notes from a jailhouse interview with a man charged with second-degree murder. He also was trying to get her to divulge the identity of a confidential source who suggested the man acted in self-defense and that one of the victims had ties to an anti-Hispanic group. O’Brien refused to comply with the subpoena.
Initially, the Kansas Supreme Court granted a temporary stay of a subpoena for O’Brien’s notes, according to the AP story, but the next day, the reporter received a subpoena (from the county prosecutor) to appear at the defendant’s trial as a witness. The Kansas Supreme Court (immediately)… refused to block the subpoena (without considering the appeal).
Anstaett commented: “It (the supreme court ruling) sends an unmistakably chilling message to our reporters and to their sources that no protections exist for those who want to blow the whistle on government, uncover corruption and abuse, or report on the criminal element in our communities.“
The Senate majority leader agreed that because of the Dodge City case, “We should strike while the iron is hot.“
With his help, a new proposal was enacted into law in that same 2010 session.
Kansas became the 38th state with a shield law.
Not everyone connected with the Dodge City case was happy with the new shield law, especially O’Brien, the reporter who brought the plight of reporters to the attention of the public and the legislature.
O’Brien’s newspaper, the Dodge City Daily Globe, is one of nine Kansas dailies owned by GateHouse Media, which is based in Fairport, N.Y., and owns ( close to 400 newspapers)
In an e-mail in late January to the state press association, her company’s division manager and publishers of four Kansas newspapers owned by GateHouse Media — including her own — O’Brien said she was disappointed in the bill. This e-mail came before it was signed into law.
“(The bill) strikes me as the kind of compromise that will give the legislature an excuse to avoid passing a real shield law for another couple of decades,“ O’Brien said in her e-mail. “We won’t get another opportunity to pass a bill with real teeth in it for a long time, and with the feds packing reporters off to prison in record numbers, I still think our best hope is a proactive and vigorous appeal to public opinion.
She continued: “This bill leaves ample room for forced testimony. If it serves as the basis for my protection, I predict that I’ll soon be right back in the same courtroom. I know this county attorney and this judge well enough to be certain of that. And I gave my word to my sources that their identities would be protected.
O’Brien added in her e-mail: “I’m not willing to go to jail for this bill. I don’t think it will protect me. However, I do remain willing and ready to go to jail in order to achieve real protection for all Kansas reporters.“
“I realize that the above scenario would transpire in theory only if the state meets certain criteria, but, in Ford County at least, the court has clearly demonstrated its willingness, if not eagerness, to rubber stamp every claim the state has made in that regard.” (My note, included here, not a part of the original email or of this paper: as a reporter, I had observed our county prosecutor and Judge Love in action for almost a year. It was clear to people in Ford County that if the shield bill passed, our DA, who went hunting with this judge every other weekend, would simply hand his pal, I mean his honor, a statement claiming that he had, as required by the bill, exhausted other resources. The judge would sign the prosecutor’s subpoena with no pretense of reading the statement. An hour later a deputy would appear at a reporter’s desk and hand him a subpoena.
“I realize that I’m just one factor in this whole scenario, and that each of you will make decisions as you see fit. I realize also that I’m just a beat reporter who probably appears to be getting too big for her britches. But for what it’s worth, and again with sincere respect to all, I’m risking your displeasure only because of deeply held personal convictions.
O’Brien was fired from the Dodge City paper shortly after the issue was resolved.
(She) told an Associated Press reporter that it was in retaliation for comments she made to news outlets after she was found in contempt for failing to appear at the inquisition. Her newspaper’s parent company, GateHouse Media, denied her allegations.
Obrien said she never testified before the legislature on the proposed shield law, although she had initially been asked to provide input. She wasn’t mentioned at the bill-signing ceremony either, nor at the annual state press association banquet, where everyone who played a role re the bill’s success was individually thanked. Except O’Brien.
It emerged late in the press banquet that O’Brien had not only won first place in the news division – and with the very story that had attracted the wrath of the DA in the first place – but that she had broken a state record by winning three additional awards at once.
“Fortunately, the judges were from the Nebraska Press Association,”” the unrepentant reporter commented on the RCFP website.
. In a July 2010 interview after her firing, O’Brien said …she was outside the information flow between the court and the newspaper’s parent company.
..”I was forfeiting some basic rights,” she said.
…She didn’t think it was unreasonable to want copies of everything associated with the case.
“I didn’t want to be leading a parade,” she said. “I wanted to be informed. I had to fight just to be told when motions were going to be presented… anyone facing a criminal charge has a right to information.”
O’Brien received four Kansas Press Association awards for her stories that appeared in the Dodge City newspaper. Ironically, among the awards was a first place for the story on her jailhouse interview.
O’Brien maintains the new shield law may protect the urban Democrats of eastern Kansas in places such as the famously wealthy Johnson County, and in Topeka and Wichita, where the state’s only two large newspapers are respectively located. As for the towns, large and small, that dot the high arid plains of Kansas’ vast central and western regions, the bill provides the reporters who put in 12 to 16 hour days for an average wage of $24,000 a year “about as much protection as nylon netting.“
“Out here,“ she added, “prosecutors rule like kings.“
♦ Purple text – highlighted email, incorporated by Professor Anderson into text and quoted directly by myself.
♦ Blue text – extremely condensed
♦ Orange text – added by me
♦ Black text – by Professor Les Anderson, Elliot school of Communication,Wichita State University
The above paper was also published in Editor and Publisher, November 2010