Minnesota Shield Law Amended to Explicitly Protect Unpublished Materials

This is a special report for the Bulletin written by Mark Anfinson, attorney for the Minnesota Newspaper Association and an instrumental player in the passage of the newly amended Minnesota Free Flow of Information Act, otherwise known as the Minnesota shield law.

In 1996, Minnesota's Supreme Court inflicted the coup de grace on protections for unpublished information formerly thought to exist under the state's shield law. The decision left no doubt that little help could be expected from the courts. If the journalist's privilege were ever going to be vigorous again, that meant the Legislature was the only option. This article describes - and, to the extent possible, explains - how Minnesota journalists and news organizations persuaded the Legislature to make Minnesota's shield law one of the strongest in the country.

Background.
In its 1996 decision State v. Turner the Minnesota Supreme Court conclusively determined that the state's shield law statute (officially known as the Minnesota Free Flow of Information Act) afforded no protection whatsoever for unpublished materials, but covered only confidential sources. This capped a three-year slide toward the precipice that had begun with a 1993 Minnesota Court of Appeals decision, which had also read the statutory language narrowly. Before that time, no case directly dealing with the application of the shield law to unpublished information - notes, outtakes, a reporter's knowledge or memory of events - had ever reached the Minnesota appellate courts, even though the statute had been passed in 1973. But over the years, several state trial court judges had concluded that unpublished materials were protected, and so for two decades the privilege in Minnesota was relatively robust. That is why the Supreme Court's Turner decision was a shock to Minnesota journalists.

The campaign.
The prospect of an ever-increasing number of subpoenas from civil and criminal attorneys was chilling. In response, news organizations and individual journalists from across the state came together, coordinated by the Minnesota Joint Media Committee, and sketched out a legislative campaign. Its goal would be to amend the shield law. Two major obstacles loomed: money, and the Legislature's perceived coolness toward journalists. The two were closely related because the more difficult and controversial a bill, the more it costs lobbyists and lawyers.

The first obstacle was overcome easily when the Minnesota Newspaper Association, the Star Tribune, and the Minnesota Broadcasters' Association pledged more that $20,000. The Society of Professional Journalists contributed another $2,000. Attention then turned to hiring a professional lobbyist, as well as deciding on the exact language of amendments to be proposed. The latter issue was tricky. There was concern that asking for too much could cause the whole effort to fail.

Early in the fall of 1997, the Joint Media Committee (JMC) chose Bob Hentges to lead the lobbying effort. Mr. Hentges had many years of experience at the Capitol, was widely respected, and had once been a reporter himself. Through the fall, the JMC met regularly to coordinate the campaign. Sen. Dick Cohen and Rep. Matt Entenza (both DFL-ST. Paul) agreed to sign on as chief authors of the legislation. Rep. Entenza replaced Rep. Bill Macklin (R-Lakeville), who had introduced a preliminary version of the bill very late in the 1997 session, mainly to call attention to the problem. Rep. Macklin graciously agreed to Rep. Entenza's substitution, recognizing that the chances for success would increase greatly if the principal House author were a member of the majority party.

Approach
Although early in the discussion about the bill, it had seemed best to use the "half a loaf" approach, out of concern that an extreme position would diminish the prospects for passage, the JMC eventually decided that the principle represented by the shield law was too important to be compromised voluntarily. As a result, the amendments introduced in the 1998 session were very aggressive, stating clearly that the privilege covered all unpublished information, and that it could be defeated only if the party seeking the information demonstrated compelling reasons.

Through the fall of 1997, a group of journalists, lobbyists, and media attorneys met with as many leading legislators as possible, attempting to explain the reasons why a strong shield law was good not only for news organizations but for the public as well. At these meetings, the regular media representatives were Bob Hentges, SPJ president Rick Kupchella, and MNA attorney Mark Anfinson. A number of others also helped periodically, including media attorney John Borger and Star Tribune reporter Bob Franklin.

"An unexpected pattern"
As one meeting after another concluded, an unexpected and almost remarkable pattern began to emerge. Nearly all of the legislators listened to the media representatives and agreed to support the bill. In fact, many were enthusiastic. At first, this caused skepticism - media representatives thought they might be missing something. However, as the number of legislative supporters continued to grow, far outnumbering the opponents, the prospects for the bill started to appear much stronger than originally predicted. By the time the 1998 session began in February, a great deal of groundwork had been laid through the meetings with legislators. Sen. Cohen and Rep. Entenza also worked at persuading their colleagues of the value of the bill.

On the second day of the session, the Senate Judiciary Committee held a hearing on the bill - its first public test. For nearly two hours the Committee debated the legislation. Several objections were raised, and the critics tried to amend the bill. But Sen. Allen Spear (DFL- Minneapolis) offered an eloquent explanation of its importance. With that the opposition evaporated, and the Committee approved the bill unanimously. A few days later, it reached the Senate floor. As he had done in the Judiciary committee, Sen. Cohen ably presented the reasons supporting it, and on a vote of 67-0, the Senate approved the bill - a result that had been completely unimaginable only a few months earlier.

Over the next several weeks, efforts focused in the House. Unexpectedly, Speaker Carruthers, who in previous sessions had been a stalwart media supporter, raised concerns that the bill went too far. He may have been influenced by his service in private life as a prosecutor, whose subpoenas the bill was in part aimed at thwarting. However, Rep. Entenza persisted, and eventually the Speaker accepted a few minor changes and agreed the bill could move forward.

All along, supporters said that the House would present the biggest challenge, and media representatives made intense efforts to get the bill through the House Judiciary Committee, which approved it in late March. By this stage of the session, Sandy Neren, long-time chief lobbyist for MNA, had also become part of the campaign. In early April, the bill finally reached the House floor, and although there was some suspense as amendments were attempted, when the vote was taken it favored the bill 123-6.

Then the legislation went to Gov. Ame Carlson's desk. The Governor's dislike for many members of the media was well known, and a veto was definitely a possibility. But after sitting on the bill for three days of building anxiety, Gov. Carlson allowed it to become law on April 6. He issued a petulant statement denouncing media irresponsibility, but the result was the same. The overwhelming House and Senate majorities had been too great to give a veto credibility. Minnesota again had one of the strongest shield laws in the nation.

How did this happen?
The answer is not entirely clear. To a far greater degree than anticipated, however, the legislators accepted the argument that a weak reporter's privilege can greatly diminish the amount of important information the public receives. Legislators also appreciated the fact that working reporters had showed up to make their case. And money was a big factor - the total cost to media organizations exceeded $40,000. The experience shows how the media can achieve good results on major items brought before legislative bodies.

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This page contains a single entry by cla published on November 13, 2009 11:59 AM.

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