Utah court should shield journalists

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News reporters should never become the unofficial arms of prosecutors, police or civil lawyers. Their job is to look independently into matters of public importance, and they need the freedom to publish what they find.

When reporters are used as investigators for law enforcement -- that is, when police or lawyers are free to go fishing around at will in a reporter's unpublished notes, or when prosecutors can force news organizations to reveal sensitive sources of information -- then those with the information are going to think twice about talking to the press.

As a result, important information will go unrevealed about such things as unethical or illegal activity in public office, financial mismanagement, corporate fraud, dangers to public health and a host of other horrors.

That would be bad for a society in which the citizens are supposed to do the governing. Our country has enjoyed great stability largely because problems come to light through a free press. Once exposed, problems can be fixed either by elected officials, by the courts or by the people themselves at the polls.

But you can't fix problems if you don't know about them in the first place.

Whistleblowers, by definition, are on the inside. They are the people in a position to know about wrongdoing, and who have the courage to report it. They often place themselves at considerable risk of retaliation by those in authority. And so it's no surprise that a source's willingness to talk may depend on his confidence that his identity will be protected.

Most states grant professional journalists a privilege against revealing sources who were promised confidentiality. If a whistleblower talks to the press on condition that his name won't be used, the legal system in most places will honor the promise.

The Utah Supreme Court will soon consider a recommendation from its Advisory Committee on the Rules of Evidence -- Rule 509 -- which says that the names of confidential news sources should not be forced into the open until a judge has applied a careful balancing test to weigh the needs of justice against the value of a free flow of information to the public.

The proposed rule also protects journalists from fishing expeditions by prosecutors, police or civil lawyers who may want to scour unpublished notes to help build their cases, even when the news organization is not a party to the action.

Predictably, the State-Wide Association of Prosecutors is unhappy with the recommendation and will be sending a letter to the Supreme Court opposing it. The association wants a free hand to use the work products of journalists, even when prosecutors could get the information they seek through other channels.

We hope that view does not prevail.

Utah journalists have never enjoyed much in the way of protection. Our courts have operated with a hodge-podge of conflicting principles that provide no consistent way to evaluate whether, in the interest of justice, a confidential source must be revealed or whether unpublished notes must be examined. Journalists even risk jail time for refusing to reveal a source, even when there is no dispute about the truth of information published or broadcast.

It's time for Utah to join the rest of the nation. Journalists should be protected by rational, consistent rules that take both justice and freedom into account. We urge the Supreme Court to adopt Rule 509 as recommended by the advisory committee.

This story appeared in The Daily Herald on page A5.

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