Note: Originally published Dec. 26, 2007, by CNHI News Service.

By William B. Ketter
CNHI News Service

Overzealous prosecutors who fish for criminal evidence in the work product of news reporters have suffered a significant setback in Minnesota.

That state’s appeals court on Christmas Eve reversed the ruling of a local judge requiring the Mankato Free Press to turn over unpublished notes about a reporter’s chance phone conversation with a gunman in a case that involved the wounding of two police officers and the suicide of the gunman.

“It was a great Christmas present,” said Publisher Jim Santori. “We are pleased with the upholding of the state law to protect free flow of information.”

That law is commonly known as the Minnesota shield law. It was specifically written to protect journalists and their sources against overreaching lawyers and judges who refuse to acknowledge a so-called reporter’s privilege in gathering news.

In Minnesota, as in other states with shield laws, there are exceptions to that privilege. They include circumstances where the press is the only source of critical evidence, the guilt or innocence of a defendant is at stake or there’s an overriding public interest in the journalists’ sources or information.

Minnesota’s appeals court determined that the local prosecutor did not clear the hurdle of proving overriding public interest in order to force The Free Press to relinquish its notes and phone conversations in the case of Jeffrey Skjervold.

Skjervold was the subject of a seven-hour standoff with police after a domestic dispute at his home on Dec. 23, 2006, in the hamlet of Amboy, Minn. Two police officers who tried to arrest Skjervold were injured in an exchange of gunfire with him.

Midway through the standoff, reporter Dan Nienaber unexpectedly got Skjervold on the phone while randomly calling homes in the community in an effort to find out what was going on. Police refused to tell reporters the details of why they were at the scene.

The conversation was brief, though Skjervold did describe aspects of the shootout that resulted in the wounding of the officers. A few hours later, Skjervold shot himself dead as police prepared to move in and end the ordeal.

Normally, that would close the case because the criminal subject had taken his life. But the local police and county attorney were perturbed that a news reporter had talked with Skjervold while a crime scene was in progress, and demanded that the paper turn over notes and recorded conversations with him.

Strangely, they did not say what they expected to do with the information, though it had been speculated they might want to prosecute reporter Nienaber or determine the liability, if any, of the police officers involved in the shootout.

It didn’t matter to Blue Earth County Judge Norb Smith. He ordered the newspaper to turn over the notes and any recorded conversation to the local prosecutor, ruling that the Minnesota shield law did not apply in this particular police-press dispute.

The Free Press, with the support of state and national press associations, appealed the ruling on the ground the shield law was relevant, especially since the police and prosecutor refused to say why they wanted the journalists’ notebooks and recordings.

The appeals court concluded that without stating a specific reason for demanding the unpublished information, the police and prosecutor had no valid argument for requiring the newspaper to provide it.

Mark Anfinson, the paper’s attorney, characterized the appellate ruling as victory for the Minnesota shield law. He said only a few challenges have been made to that law since it was enacted in the 1990s, and thus the decision strengthens the hand of the press.

Thirty-seven states and the District of Columbia have shield laws to protect journalists against disclosing confidential sources or relinquishing notes and outtakes against their will.

Still, these laws have not discouraged judges from raining subpoenas down on reporters. One reason is federal courts have ruled that no privilege protects journalists called before grand juries, a finding that has landed journalists – most recently Judith Miller of the New York Times and freelance blogger Josh Wolf – in jail.

That has led to efforts to enact a federal shield law, with exceptions for “imminent and actual harm” to national security and the usual proof that the confidential source or unpublished information was critical to proving a case, and that the public interest in disclosure outweighed the right to protect a news source.

The problem is President Bush opposes the federal shield law, saying it would put the nation’s security at greater risk during the war on terrorism. Thus there is little chance the proposal will become law during his final year in office.

Yet decisions such as the one issued by the Minnesota appeals court in the Skjervold case help the press go about its job of reporting the news without fear of the courts. This is important when you consider a prime role of the press is to keep an ever watchful eye on government, including the local police.

William B. Ketter is vice president of news for Community Newspaper Holdings Inc.

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