LRB-3247/3
RPN:jld:pg
2007 - 2008 LEGISLATURE
March 11, 2008 - Introduced by Representatives Parisi, Zepnick, Boyle,
Pope-Roberts, Mason, Berceau, A. Williams and Sheridan, cosponsored by
Senators Lehman, Risser and Miller. Referred to Committee on Judiciary
and Ethics.
AB946,1,2
1An Act to create 885.14 of the statutes;
relating to: limiting disclosure of
2information gathered by news persons or news media.
Analysis by the Legislative Reference Bureau
Under the Supreme Court's interpretation of article I, section 3, of the
Wisconsin Constitution, prohibiting any law that restrains the liberty of the press,
a member of a news media, such as a reporter, has a qualified privilege to refuse to
disclose sources of information received in confidence. The privilege is qualified
because the reporter may be required to reveal the source if proof is presented
showing that the source may have information that is competent, relevant, material,
and favorable to the requester and that there are no other reasonable and adequate
alternative sources for the information. The Supreme Court has held that the value
of freedom of the press must be balanced against the societal values favoring
disclosure, which requires a review of the facts in each case to determine whether to
allow a reporter to refuse to disclose a confidential source.
This bill creates a statutory prohibition against any person, including a judge,
from issuing a subpoena to compel a person or business engaged in gathering or
disseminating news or information to the public (news media) to testify about or
disclose any of the following:
1. The identity of, or information that would tend to identify, a confidential
source.
2. Any news or information obtained in confidence by news media in gathering
and preparing news or information for the public.
3. Any news, information, or identity of any source of news or information,
other than those listed in items 1. or 2., above, that is obtained in gathering or
preparing news or information for the public.
The bill provides exceptions to the prohibition. Under the bill, a person may
request a circuit court to compel the news media to provide the news, information,
or identity described in item 3., above. The bill requires the circuit court to have a
hearing on the request. If there is a criminal investigation or prosecution ongoing,
the requester must establish by clear and convincing evidence, based on information
from a person other than the news media, that there are reasonable grounds to
believe that a crime occurred. In a civil matter, the bill requires the requester to,
based on information from a person other than the news media, establish that there
is a cause of action.
Under the bill, if the requester meets the burden of proof regarding the criminal
or civil action, the circuit court may compel the news media to provide news,
information, or an identity described in item 3., above, only if all of the following
apply:
1. The news, information, or identity is highly material and relevant.
2. The news, information, or identity is critical or necessary to the maintenance
of a party's claim, defense, or proof of an material issue.
3. The news, information, or identity is not obtainable from any alternative
source.
4. There is an overriding public interest in the disclosure of the news,
information, or identity.
The bill also prohibits the issuance of a subpoena requested by a third party who
is seeking records, information, or other communications relating to a business
transaction between the third party and the news media. The prohibition applies if
the identity of a source or news or information may be discovered as a result of the
subpoena. The court may issue the subpoena after a hearing if the third party
establishes that the news, information, or identity is highly material and relevant,
critical or necessary for the third party's claim, and not obtainable from other
sources.
Under the bill, if there is a criminal investigation of a news media, the court
may issue a subpoena compelling the news media to reveal records, information, or
other communications without giving the news media notice of the request for the
subpoena or an opportunity for a hearing before the subpoena is issued. The court
may issue a subpoena in this situation only if the prosecution shows that providing
the news media notice and an opportunity to be heard would pose a clear and
substantial threat to the integrity of the criminal investigation.
Under the bill, the news, information, or identity of a confidential source that
is obtained in violation of the prohibition is inadmissible in any judicial, legislative,
or administrative proceeding or hearing.
The people of the state of Wisconsin, represented in senate and assembly, do
enact as follows:
AB946, s. 1
1Section
1. 885.14 of the statutes is created to read:
AB946,3,3
2885.14 Disclosure of news person or news media sources, news, and
3information. (1) In this section:
AB946,3,104
(a) "News media" means any business or organization that, by means of print,
5broadcast, photographic, mechanical, electronic, or other medium, disseminates
6news or information to the public, including a newspaper, magazine, or other
7periodical; book publisher; news agency; wire service; radio or television station or
8network; cable or satellite network, service or carrier; or audio or audiovisual
9production company; and a parent, subsidiary, division, or affiliate of any of these
10businesses or organizations.
AB946,3,1511
(b) "News person" means any person who is or has been engaged in gathering,
12receiving, preparing, or disseminating news or information to the public for a news
13media, including any person supervising or assisting the person in gathering,
14receiving, preparing, or disseminating news or information to the public for a news
15media.
AB946,3,18
16(2) Except as provided in sub. (3), no person having the power to issue a
17subpoena may issue a subpoena compelling a news person or news media to testify
18about or produce or disclose any of the following:
AB946,3,1919
(a) The identity of a confidential source of any news or information.
AB946,3,2120
(b) Any information that would tend to identify the confidential source of any
21news or information.
AB946,3,2422
(c) Any news or information obtained or prepared in confidence by a news
23person or news media in gathering, receiving, or preparing news or information for
24potential dissemination to the public.
AB946,4,4
1(d) The news, information, or identity of any source of any news or information
2that is not described in par. (a), (b), or (c) and that is obtained or prepared by a news
3person or news media in its capacity in gathering, receiving, or preparing news or
4information for potential dissemination to the public.
AB946,4,10
5(3) (a) Subject to par. (b), a circuit court may issue a subpoena compelling a
6news person or news media to disclose news, information, or identity of a source of
7any news or information, described in sub. (2) (d), if the court finds, after notice to
8and an opportunity to be heard by the news person or news media, that the person
9requesting the subpoena established one of the following by clear and convincing
10evidence:
AB946,4,1311
1. In a criminal investigation or prosecution, except as provided under sub. (4)
12(c), based on information obtained from a person other than from that news person
13or news media that there are reasonable grounds to believe that a crime has occurred.
AB946,4,1614
2. In a civil action or proceeding, based on information obtained from a person
15other than from that news person or news media that there appears, on the face of
16the complaint, to be a cause of action.
AB946,4,1917
(b) A circuit court may issue a subpoena compelling a news person or news
18media to disclose the news, information, or identity of a source of any news or
19information, under par. (a), only if all of the following apply:
AB946,4,2220
1. The news, information, or identity of the source of any news or information
21is highly material and relevant to the investigation, prosecution, action, or
22proceeding.
AB946,4,2523
2. The news, information, or identity of the source of any news or information
24is critical or necessary to the maintenance of a party's claim, defense, or proof of an
25issue material to the investigation, prosecution, action, or proceeding.
AB946,5,3
13. The news, information, or identity of the source of any news or information
2is not obtainable from any alternative source for the investigation, prosecution,
3action, or proceeding.
AB946,5,54
4. There is an overriding public interest in the disclosure of the news,
5information, or identity of the source of any news or information.
AB946,5,10
6(4) (a) The prohibition under sub. (2) applies to a subpoena requested by a 3rd
7party that seeks records, information, or other communications relating to a
8business transaction between the 3rd party and the news person or news media if
9that subpoena may discover the identity of a source or obtain news or information
10from the news person or news media.
AB946,5,1711
(b) Whenever a 3rd party requests a subpoena that seeks records, information,
12or other communications relating to a business transaction between the 3rd party
13and the news person or news media, the news person or news media shall be given
14reasonable and timely advance notice of the request and an opportunity to be heard
15before a circuit court before the subpoena is issued. The circuit court may allow
16issuance of a subpoena under this subsection only if the 3rd party establishes that
17all of the conditions specified in sub. (3) (b) 1. to 3. are met.
AB946,6,518
(c) If the subpoena requested by a 3rd party is in connection with a criminal
19investigation in which the news person or news media is the subject, and advance
20notice under this paragraph would pose a clear and substantial threat to the
21integrity of the investigation, the government agency in charge of the investigation
22shall certify that threat to the circuit court when requesting the issuance of the
23subpoena. The circuit court may order that a subpoena requested under this
24paragraph be issued without giving the news person or news media advance notice
25of the request for a subpoena and the opportunity to be heard if the court determines
1that providing that notice and opportunity would pose a clear and substantial threat
2to the integrity of the criminal investigation. The governmental agency shall notify
3the news person or news media of the subpoena as soon as possible after the
4governmental agency determines that the notification no longer poses a clear and
5substantial threat to the integrity of the investigation.
AB946,6,8
6(5) The news person's or news media's publication or dissemination of news or
7information described in sub. (2) (a) to (d) does not constitute a waiver of the
8protection from compelled disclosure under sub. (2).
AB946,6,11
9(6) The news, information, or identity of a source of any news or information
10obtained in violation of this section is inadmissible for any purpose in any judicial,
11legislative, or administrative action, proceeding, or hearing.
