South Dakota Senate Passes Reporter Shield Law

By Matthew Renda — Courthouse News Service

South Dakota is poised to become the 40th state to pass a shield law for journalists and their sources after a bill passed the state Senate on Wednesday.

The bill, House Bill 1074, gives journalists the right to decline to provide information or the identity of sources to courts, grand juries, legislative bodies or any public bodies with the power to levy contempt charges.

“This provides protection if a journalist puts a story out there from a confidential source, it means they can’t be compelled to turn over their confidential source for that information,” said state Sen. Lee Schoenbeck, a Republican, moments before the bill passed 33 to 1.

The bill passed the House in early February, 47-20.

Governor Kristi Noem still has to sign the bill, a near certainty after she advocated for the legislation during her State of the State address in January.

“Fact-based reporting must be valued and encouraged in order to uphold the integrity of government entities,” Noem said during the address. “To that end, I want to see a common-sense reporter shield law, protecting the constitutional right to a free and independent press. I want that bill on my desk before the end of session.”

The push for protections for journalists and their sources by the state’s Republican-controlled government provides a stark contrast to President Donald Trump, whose hostility toward journalists is well documented.

Trump has not only steadily grumbled about media coverage of his campaign and administration, but has also increased his prosecution of people who provide journalists with information.

Former FBI agent Terry Albury was sentenced to four years in prison for sharing documents he believed showed how the federal government discriminated against individuals of Middle Eastern descent.

Reality Winner, a former contractor for the National Security Administration, was also prosecuted and eventually jailed for leaking confidential information to the press.

Using the legal system to prosecute journalists and their sources is not unique to the Trump administration, however.

The Justice Department during the Obama administration attempted to force New York Times journalist James Risen to testify in the trial of Jeffrey Sterling, who was eventually sentenced to 3 1/2  in prison for sharing confidential information relating to CIA operations.

Risen said he would go to jail rather than reveal his sources and fought the subpoena in the Sterling trial all the way to the U.S. Supreme Court. Despite losing his case, Risen was never subpoenaed and did not testify in the Sterling trial. It remains unclear if Sterling was the source for Risen’s articles.

South Dakota has repeatedly ranked low in transparency rankings, with the Center for Public Integrity giving the state a failing grade in 2015 and again in 2017.

“Lobbyists booze, schmooze, and have their way with South Dakota lawmakers,” the center said in 2017. “When it comes time to see what happened, disclosure forms make it difficult to tell.”

Noem, who was elected last year, ran on a pledge to increase transparency across the state’s institutions and reaffirmed that commitment in her first address as leader of the state.

“We’ll work to bring more sunlight to the statehouse,” she said.

Shield laws are one tool that experts believe help journalists do their job, particularly when uncovering scandals in government agencies.

“It’s based on the belief that a vibrant Fourth Estate is critical for an effective government,” Schoenbeck said before the vote on Wednesday, using an centuries-old term for the press.