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Virginia Mulls Shield Law for Journalists

May 1, 2011

By Jeannette Porter
Capital News Service

RICHMOND – While Virginia seemingly venerates all things Jeffersonian, the commonwealth has not yet enshrined in law one of Thomas Jefferson’s most ardently held principles: the protected role of a free press in a democracy.

Delegate Barbara Comstock, R-McLean, would like to change that. In the 2011 General Assembly, she introduced House Bill 2199, which would grant journalists limited protection from being compelled to disclose confidential sources.

Comstock subsequently withdrew the bill from consideration this year so it could undergo further study. A subcommittee of the House Committee for Courts of Justice then voted that the bill be passed by for this session.

Comstock, who is serving her first term representing House District 34, said her goal wasn’t to get a law enacted but to get the discussion started.

“I knew when I introduced it that we were at the beginning of a three-year process,” she said. “I wanted to get the idea out there.”

According to the Virginia-based Reporters Committee for Freedom of the Press, Virginia is one of 13 states that have no law explicitly shielding journalists from having to name their sources in court.

The bill was based on one recently enacted in Texas, Comstock said in an interview.

Despite the bill’s intent to protect the press, it met with a lukewarm reception from the Virginia press corps.

Ginger Stanley, executive director of the Virginia Press Association, wrote to Comstock: “We believe that House Bill No. 2199 does not provide an appropriate degree of protection for journalists and we do not support it in its current form.”

Attorneys for The Washington Post reviewed the bill and had four main concerns:

The bill offered limited, not absolute, protection from the disclosure of confidential sources. In certain circumstances, journalists could be forced to say who gave them their information or go to jail. Shield laws in Washington, D.C., Maryland and 11 other states offer absolute protection.

The circumstances under which journalists could be forced to say who gave them information were “too weak or confusing in some ways.”

The bill did not at all protect information that comes as a result of grand jury cases.

Under HB 2199, a court could find that the public interest in newsgathering outweighed the interest of someone seeking to compel a journalist’s testimony – and yet the journalist still could be forced to testify.

“We welcome your interest in this important issue,” Stanley’s letter concluded, “and we would be glad to work with you and other stakeholders to see whether legislation can be drafted that we would support.”

The Virginia Pro Chapter of the Society of Professional Journalists took a similar line, saying in a statement that it “looks forward to working with Delegate Comstock in the future in defense of journalists’ rights in the Commonwealth.”

Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press (which worked with Comstock on the first draft of HB 2199), also had concerns.

One point of contention was over how to determine whether a person is a journalist. Such a definition can be problematic in an age of blogging and citizen journalism.

HB 2199 used a “status test” to determine who is a journalist. The bill said a journalist is someone who “for a substantial portion of the person’s livelihood or for substantial financial gain gathers, compiles, prepares, collects, photographs, records, writes, edits, reports, investigates, processes, or publishes news or information that is disseminated by a news medium or communication service provider.”

That phrase would exclude unpaid bloggers and student journalists.

“We prefer a function test,” Dalglish said. Under that test, a journalist is someone who reports news – regardless of who the person works for or how much the person earns.

Dalglish wants to ensure protection for student journalists: “We would like to cover broadcast, Internet and so on entities sponsored by an institution of higher learning.”

Dalglish also said HB 2199 seemed to set a lower standard for prosecutors than for other parties in determining whether a journalist could be forced to testify.

Despite such concerns, Dalglish was positive overall that Comstock had put the issue on the table.

“For Virginia to come up with any type of statute will be progress,” Dalglish said. “I wouldn’t single out (Comstock’s HB 2199) as terrible or wonderful. … We approve of her efforts. We have testified all over the country on this issue, and we’re looking forward to working within the state where we’re headquartered.”

Comstock, now back in her Fairfax County district, seems committed to the process of creating a Virginia shield law.

“Thomas Jefferson said, ‘Our liberty cannot be guarded but by freedom of the press, nor that be limited without danger of losing it,'” said Comstock, an attorney who has lobbied for a federal shield law for journalists as well.

“Having worked on this issue at the federal level, I feel strongly about this and particularly strongly that Virginia, as Jefferson’s birthplace, needs to have this protection in law. We will have meetings with the press folks, prosecutors and our members to see if we can get a consensus bill that can get all parties on board.”


Jeannette Porter’s story was published by several news outlets, including:


On the Web

To read or comment on House Bill 2199, visit www.richmondsunlight.com/bill/2011/hb2199

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