I never thought I'd live to see the South Dakota Legislature seriously consider a law giving news reporters protection against being forced to reveal confidential sources.
A bill proposing such a law, commonly called a reporter shield law, passed the House earlier this week. Gov. Kristi Noem says she supports such a law, so if the Senate approves the bill, she'll get to sign her name and make it official.
I worked 40 years in news, nearly always as a grunt reporter. I don't recall being threatened with jail for failing to divulge a source, but two things about that:
First, I seldom used confidential sources in stories. I had sources I'd have protected, so I guess that meant I'd have gone to jail rather than tell who they were. I figured that was the responsibility part of the First Amendment's freedom of the press. Rights nearly always entail responsibilities. Fortunately, I never had to make the decision about jail. My sources mostly helped me quietly figure out ways to get to the people and the records that would tell the story. A source would tell me who was in a meeting or what was said or what votes were taken. Then I'd ask people who were there or find the minutes or meeting notes or whatever.
Second, times have changed. I last worked a regular beat as a reporter during the 2009 Legislature. Times were beginning to change by then, but the pace of the change has accelerated dramatically in recent years. From the sidelines, things look much more hostile and much more confrontational. I suppose it will remain that way until and unless the pendulum swings back toward the center. Reporters today may well need the protection of a shield law more than I ever did.
In any event, the fact that it's being considered at all is a nice piece of symbolism in an age of Fake News cries and deliberate falsehoods spread as fact. I have a "Journalism Matters'' T-shirt, a gift from my daughter. A reporter shield law is kind of like everyone wearing that sort of T-shirt. If I didn't have the T-shirt, though, journalism still would matter. And should the Senate fail to approve the reporter shield bill passed by the House, the First Amendment still would matter. It still would be the first and last defense of news reporters.
Protecting reporters matters because they are the foot soldiers in the battle for the public's right to know. Reporters go to meetings most citizens can't. Reporters look for documents and read audits and ask questions while the rest of the public is teaching school and stacking hay and frying burgers and plowing snow.
But, listen, if the Legislature and the governor are in a mood to consider protection of reporters and transparency in government, perhaps this is the time to dissect the state laws dealing with access to government records.
About 10 years ago, legislators adopted a section of code that takes the position a government record is open unless a specific exception to openness exists in the statute. That was a 180-degree shift from the previous law, which basically said to anyone seeking a document, "Prove to me that I have to give you this record."
The switch to a presumption of openness was a welcome move. However, lawmakers followed up with a long string of exceptions. "Every record is open except'' this one and that one and so on. The exceptions should be reviewed. Many should be reduced or removed from the books entirely.
The fees the current law allows agencies to charge for records should be revisited. It's meaningless how open a document is if a citizen can't afford it.
And the law should make it easier for citizens to know what records exist and how to find them. A single government-funded position, highly visible and free to the public, could be created to receive all requests for records and to help citizens through the process of obtaining them.
Creating an open-records advocate for all of government would be a huge step. Maybe it's impossible. But I used to think that about a reporter shield law.