Cases throughout the 1990s, such as the Minnesota Daily case, State v. Knutson, which was resolved in January, 1996,* demonstrated Minnesota courts' increasing willingness to narrowly interpret the shield law as it stood, even though journalists thought that the protection outlined in the law extended to their unpublished notes and photos. Minnesota media organizations such as the Society of Professional Journalists and the Minnesota Newspaper Association worked tirelessly to educate the legislature about the importance of this protection and should be commended for their dedication.
The most important change comes in section 595.023. This section was amended to protect unpublished information "whether or not" it would identify a source, although exceptions are allowed if that information is clearly relevant and cannot be obtained elsewhere, and if there exists a compelling and overriding interest requiring disclosure. This addendum is intended to protect journalists from subpoenas for unpublished material.
So how might this change affect working journalists in Minnesota? Bob Franklin, reporter for the Minneapolis Star Tribune and SPJ Freedom of Information Act director, said that the new shield law will actually help reporters avoid having to make sweeping modifications in the way they do their jobs. The change to the shield law "will avoid prompting journalists to make large changes in the way they do their day-to-day work," Mr. Franklin said. "And it will prevent some of the non-day-to-day experiences of being hauled into court to testify."
However, Kate Parry, senior editor for Enterprise, Investigations and Politics at the St. Paul Pioneer Press, said that the shield law alteration will result in changes in newsrooms precisely because subpoenas will be reduced. She noted that subpoenas for journalists' unpublished information occur with increasing frequency and are a serious drain on newsroom resources. This law will help reduce the number of subpoenas and thus prevent the huge diversion of staff time and money. And although journalists try to source on the record as often as possible, "the law protects our ability to do that digging-deep journalism that's got risks associated with it - we need to assure sources that we can keep their anonymity shielded within the scope of the law," Ms. Parry said. This change will help journalists do that when necessary and reduce the amount of time and resources needed to answer subpoenas, she added.
From a legal perspective, media attorney Paul Hannah claimed that the change will reduce the number of subpoenas in civil cases. (Journalists might still have to answer subpoenas in criminal cases if the relevance issue is met). "First, journalists covering contentious issues won't be dragged into the middle of them because of what they've written," Mr. Hannah said, "Second, the law will benefit small and large community newspapers because there will be a marked decrease in the number of lawyers trying to use journalists to provide elements of their cases."
In her 1996 masters' thesis, former Minnesota Daily editor-in-chief Michele Ames wrote about the dangers associated with the courts' interpretations of Minnesota's shield law: "If the trend toward increasing news media involvement as information providers in the court system is not halted...news organizations may find themselves more tentative in covering events likely to place them in the line of fire for subpoenas." The protection of unpublished materials made explicit in the Minnesota Free Flow of Information Act is one step closer to the goal of ensuring that journalists can conduct investigations without fear of courts requiring them to act as an arm of law enforcement through the subpoena process.
Silha Research Fellow
*See Bulletin articles "Point" and "Counterpoint," Spring 1996, for two points of view on editor-in-chief Michele Ames' refusal to turn over subpoenaed unpublished photographs in this case.