By Lena Williams, Guild-CWA :: Does Illinois’ shield law protect a reporters’ sources and notes or not?
It appears to depend on which judge you draw, which has been bad news for Patch.com reporter and editor Joseph Hosey, a past Guild member.
The shield law creates a “qualified” privilege for journalists, but it’s up to the courts to decide whether that privilege applies.
That caveat is at the heart of the legal battle facing Hosey, who scooped all competitors last year when he got his hands on police reports about a gruesome double murder in Joliet, one of Chicago’s southwest suburbs.
Last September, about seven months after breaking the story, Hosey was ordered to reveal the identity of his confidential source. Judge Gerald R. Kinney threatened jail and fines if Hosey refused, which he did.
Although the judge’s order is stayed while being appealed, Hosey faces a one time-fine of $1,000 and a staggering $300 for each day he refuses to comply. He could also go to jail – indefinitely, the judge warned.
Hosey’s fate hinges on whether the Illinois Appellate Court, where the case is pending, finds that the state’s shield law protects reporters even:
- When “all other available sources of information have been exhausted.”
- When the “disclosure of the information sought is essential to the protection of the public interest”
- When “the plaintiff’s need for the disclosure of the information sought outweighs the public interest in protecting the confidentiality of sources of information.”
With Illinois’ and many other states’ shield laws are so open to interpretation, subpoenas for journalists appear to be on the rise.
A Columbia Journalism Review article on Hosey’s legal battles reported that a 2008 study in the Minnesota Law Review “found hundreds of subpoenas issued to the media each year, with the number then on the rise. The study, based on a survey of 761 newsrooms around the country, estimated that more than 7,200 subpoenas were issued to journalists in 2006—with nearly 90 percent coming at the state level journalists.”
The court overseeing the double murder case claims due diligence, saying it collected sworn affidavits from more than 500 police employees, courthouse workers and attorneys, all of whom denied leaking the information.
Based on that, Judge Kinney ruled that the state’s shield protections didn’t apply, ordering Hosey to reveal his source.
The Newspaper Guild is among 39 news organizations and civil liberties groups that filed an amicus brief in March in support of Hosey and Patch Media. The coalition includes the National Press Club, the First Amendment Coalition, Courthouse News Service, the American Society of News Editors, the Associated Press, the Reporters Committee for Freedom of the Press and the Society of Professional Journalist and 30 others.
SPJ President David Cuillier told CJR that Kinney’s decision is “a witch hunt to find the leaker,” that could have chilling effects for newsgathering.
“All of this directly affects how journalists do their jobs,” he said. “We need to ensure that journalists don’t have to go to jail to protect the flow of information and to protect the ability of people to come forward with the information that’s important.”
The amicus brief, written by the Reporters Committee, argues that upholding Judge Kinney’s order would gut Illinois’ reporters’ privilege law:
“In the future, a party who seeks privileged information from a reporter will merely have to obtain affidavits from anyone who could possibly be the source, then declare that someone must have lied and, therefore, insist that unmasking the source is necessary.…This is a complete misuse of the statute.”
hile Judge Kinney issued a gag order in the case on March 1, 2013, the amicus brief states that Hosey began to quote from the police reports several days earlier, on Feb. 26, 2013. Further, Illinois’ Freedom of Information Act requires police agencies to provide arrest information and reports to the media.
Hosey’s supporters also challenge the claim that knowing who leaked the information is vital to defending the criminal case. “Identifying Hosey’s source will not make any element of the defendant’s murder charge more or less probable,” the brief states.
Hosey has been a Chicago-area reporter since 1999. Before joining Patch.com, he worked at The Joliet Herald-News and was a member of The Chicago Newspaper Guild. He is the author of “Fatal Vows: The Tragic Wives of Sergeant Drew Peterson.”
His refusal to divulge his source is a local drama similar to the eight-year stand New York Times reporter and Guild member James Risen has taken against federal officials pursuing his testimony against a suspected source. The Newspaper Guild is honoring Risen with the Herbert Block Freedom Award at a ceremony next month.
In July, Hosey also won a prestigious award, the 2014 John Aubuchon Press Freedom Award presented annually by the National Press Club to two journalists, one foreign and one domestic, who have demonstrated through their work the principles of press freedom and open government.
“There is no interest here that overrides the public’s right to a free flow of information, and that is predicated to a large degree on the ability of sources to maintain anonymity in divulging important information to the press,” NPC President Myron Belkind said in announcing the award. “Hosey is to be commended for courageously standing up for that principle in the face of judicial pressure.”