House committee recommends passing journalist ‘shield law’

By Zach Hagadone
Reader Staff

Members of the Idaho House Judiciary, Rules and Administration Committee voted unanimously Feb. 19 to advance House Bill 158 with a “do-pass” recommendation, putting it to the full body to determine whether journalists in the state should be shielded from legal action forcing them to divulge confidential information about their sources. 

Sponsored by Idaho Falls Republican Reps. Barbara Ehardt and Marco Erickson, the bill would amend Idaho Code to add a new section that states, “No person engaged in journalistic activities shall be compelled to disclose in any legal proceeding, trial before any court, or before any jury the source of any information procured or obtained and published in a newspaper, print publication, digital news outlet, or by a radio or television broadcasting station with which the person is connected.” 

Exceptions would be for  information that affects national security or is related to “imminent physical harm.”

If approved by the Legislature, the law would go into effect July 1.

Introducing the bill on Feb. 19, Ehardt noted that Idaho is among only 10 states in the country that do not have a shield law in effect to protect the confidentiality of journalists’ sources, which she said “is incredibly important.”

“We’re literally talking about sources, and not being forced to reveal sources, which is often us,” she said toward the end of the hearing.

Erickson told the committee that the First Amendment does not extend to protecting journalists from giving up information on their sources, which is why shield laws have been enacted in other states. Meanwhile, he noted that the use of subpoenas to acquire source information in lawsuits is “very cost burdensome to some of these small news organizations.”

Idaho Press Club President Melissa Davlin, who also serves as lead producer and host of the Idaho Public Television program Idaho Reports, represented the state’s press corps before the meeting, stating that she’d seen more requests to quash subpoenas seeking journalists’ source material in the past year than in her entire 12 years with the Press Club and two years as president.

“This is really concerning, not just for us but for our sources who turn to us for help exposing issues in their community,” she said.

Rep. Joe Alfieri, R-Coeur d’Alene, asked about the definition of “national security,” to which Davlin responded that a judge would make the consideration regarding what constitutes a national security risk, and including that exemption in the bill showed that, “We as the press are willing to recognize that there is a balance” between the social interest of certain information and safety.

Rep. Clint Hostetler, R-Twin Falls, asked whether the bill would enable reporters to “make up sources,” then protect them from revealing that they had

fabricated statements.

Davlin said that’s the reason for the establishment of journalistic ethics and libel and defamation laws.

“I still can’t make things up without backing,” she said, later adding, “A good, ethical journalist would use [confidential or anonymous] information to verify what she or he can confirm.”

Rep. Dale Hawkins, R-Fernwood, asked how H.B. 158 would address information acquired through illegal means, such as breaking into a legislative office and absconding with documents.

Davlin said that breaking and entering, as well as theft, would be criminal charges liable to the individual who obtained the materials. However, if such information made it into the hands of a reporter, professional ethics and other legal guardrails would require further confirmation and — per the proposed bill language — those exemptions related to national security and physical harm would apply.

“Most of what we deal with is with information that is obtained legally,” she said, later referring to the breaking-and-entering scenario described by Hawkins, when she added, “That’s not something that happens often, I would say.”

Nate Sunderland, who works as the editor of East Idaho News, testified that his organization was hit with subpoenas to reveal source information in a lawsuit between a local business and attorney. While his outlet “fought them tooth and nail,” a confidential recording made by one of his reporters did feature in the trial.

“That’s a horrible reality,” he said, noting that such actions represent a “chilling impact” on whistleblowers who seek to reveal corruption in government and business.

South Idaho journalist Don Day also testified to being served with legal filings to reveal source information, and attorney Ken Burgess — who represents the Idaho Press Club — reminded the committee that it had the week before endorsed an anti-SLAAP bill from member Heather Scott, R-Blanchard, that sought to protect free speech by shielding individuals from frivolous lawsuits.

“This is anti-SLAAP legislation Part B,” he said.

Finally, Reader Publisher Ben Olson testified at the hearing in Boise, recounting the yearslong campaign of harassment by racist robocaller Scott Rhodes, who targeted the paper and Olson after reporting revealed his identity as the distributor of hate speech at Sandpoint High School in late 2017.

The Reader’s investigation into his activities in early 2018 uncovered that Rhodes had been spreading similar material and engaging in harassing phone calls to public and private individuals around the country, resulting in a $9.8 million dollar fine levied by the Federal Communications Commission in 2020 under the Truth in Caller ID Act.  

When the U.S. Department of Justice took him to federal court, Rhodes represented himself, and sought to subpoena Olson’s notes, emails, and audio and visual recordings of anyone with whom he spoke during his reporting.

“It was clearly an attempt to further harass me and potentially harass sources who spoke with me,” Olson testified.

The subpoena was ultimately quashed, thanks to the pro bono representation of retired U.S. Attorney for the District of Idaho Wendy Olson, but not until after several years of sustained harassment.

“The potential that this individual might have been able to access my confidential sources’ information means that they, too, might have been subject to the same harassment. We need a shield law that prevents this from happening,” Olson said.

“I encourage you to move this bill forward. Our sources — and readers — are your constituents, and they deserve protection from baseless and frivolous subpoenas used as a tool of harassment,” he added. “They also have the right to speak freely to reporters — either on or off the record — with the confidence that whatever information they provide is safe from people who would use that information to cause them harm or embarrassment.”