Vermont Senate Passes Shield Law Bill

By James Finn

A Vermont state senate committee voted unanimously on March 22 to pass a media “shield” bill. The bill will protect Vermont journalists from having to disclose sensitive information obtained in interviews in court cases, particularly confidential information obtained from sources off the record, according to Seven Days Vermont. In order to become law, the bill will have to pass before the second chamber of the Senate, according to Seven Days.

In the past, Vermont journalists could face steep daily fines and potential jail time if they failed to disclose information provided to them by sources in court, even information obtained off the record, according to Seven Days. Judges, prosecutors, defense attorneys and other court officials could file subpoenas to obtain any information obtained by reporters, including sensitive off-therecord material, that they deemed pertinent to court cases.

Prior to the bill passing, Vermont was one of only 10 states that lacked significant shield law protection for its reporters. Most states have laws in place that provide significant protection against courts seizing information obtained by journalists in interviews, according to USA Today.

In a story for Seven Days, Ken Picard wrote that the shield law will help journalists continue to hold government accountable.

“Journalists contend that when the legal system coerces them into testifying, it makes them appear to be acting as an investigative arm of law enforcement,” Picard wrote. “As a consequence, they lose the independence they need to carry out their constitutionally protected role of holding government accountable.”

“Reporters really shouldn’t be seen as arms of the police or the prosecution,” Vermont Public Radio news director John Dillon told USA Today.

The bill provides journalists with new protections against having to give up confidential information, specifically surrounding off the record interviews. Per the bill, information obtained by reporters on the record will still be accessible via subpoena, but only in extreme or extenuating circumstances. Confidential interviews obtained off the record will not be accessible, even in extreme circumstances, according to VPR.

Vermont Attorney General T.J. Donovan said that this bill presents a significant step forward in advancing Vermont’s freedoms of the press.

“From a principled standpoint, we want a free and unfettered press in this state, and this bill goes a long way in supporting that,” Donovan said in testimony before the Senate.

Some parties expressed concern about ambiguity of some of the bill’s language, which they say could lead people who are not necessarily journalists to claim protection under the new law. Executive Director of the Vermont Department of State Attorneys and Sheriffs John Campbell was one of them.

“We have to point out some of the darker sides here,” Campbell told VPR. “Wherever there is a keyboard or a recording device, there is a potential for someone to claim that the source from where they got the information was in fact protected.”

Recent prosecution of Seven Days and VPR journalists played a role in newfound support for the bill. In 2016, VPR and Seven Days reporters were subpoenaed while reporting on a sexual assault case involving former Vermont State Senator Norm McAllister, according to USA Today. While several of the subpoenas were later dropped, two remained in place until the passing of the March 22 bill.

Past cases played a role in the bill’s advancement. Rutland Herald reporter Susan Smallheer was subpoenaed in 1992 while investigating Charles Gundlah, a suspect in a murder case at the time. Smallheer refused to disclose what she had found even after being subpoenaed and faced time in jail as a result, according to Seven Days. “[I didn’t disclose the information] because my life as a reporter would have been over if I had to testify for the prosecution,” she told Seven Days. “No one would trust me.”

Seven Days Political Editor Paul Heintz expressed similar sentiment surrounding motivations for the bill. “To do our job, we have to have the trust of our sources,” Heinz told VPR. “Our sources will not trust us and will not speak to us if they believe that we are going to end up on the stand talking about what it is they’ve told us, whether it’s on the record or off the record.”