Commentary:
New Mexico’s lawmakers decided back in 1973 that the state would protect journalists from having to reveal their confidential sources or share their notes, except in limited circumstances.
In 1973, “Tie a Yellow Ribbon Round the Ole Oak Tree” topped the Billboard 100. “The Exorcist” was the top movie.
In 1973, the Albuquerque Tribune still published. So did the Lordsburg Liberal. The nonprofits New Mexico In Depth, Searchlight New Mexico and Source New Mexico didn’t yet exist.
Email didn’t exist back then. Neither did personal computers. Journalists did their work with notebooks, pens, tape recorders and typewriters.
Journalism and technology have changed a lot. That’s why I’m sponsoring House Bill 153 in the current legislative session. The bill seeks to update the state’s shield law to account for the way journalism is done today.
It expands the definition of who is doing journalism to include nonprofit news, online media, freelancers and other independent journalists. It would even protect one of my colleagues in the House, Rep. John Block, if he was quoting unnamed sources on his news and commentary website the Piñon Post.
And it should. The law as it was written decades ago was intended to protect not only investigative journalists but features and sports reporters and even obituary writers. It isn’t only investigative reporters who run into situations where their work needs protection.
House Bill 153 would also protect journalists’ electronic communications like email from state snooping, except with approval of a judge in limited circumstances: to address terrorism or “a threat of imminent violence, significant bodily harm or death, including specified offenses against a minor.”
There’s a wrinkle I need to mention: In 1982 the N.M. Supreme Court ruled the state’s shield law invalid in court proceedings, saying only the judiciary can dictate rules of evidence. The Court adopted its own shield rule for journalists. That also needs updates, but it’s outside the purview of this legislation. I’ll be working with the Court on that issue after the session.
The 1973 shield law remains on the books and applies to agencies in the executive and legislative branches that have subpoena power. That’s at least 54 agencies, from the State Auditor and Ethics Commission to the Livestock Board and the Board of Acupuncture and Oriental Medicine. The N.M. House of Representatives can use subpoena power when it’s conducting hearings like impeachment proceedings.
If we don’t update this law, an overreaching governor, for example, might be able to access a journalist’s communications to hunt down and stop a whistleblower. Protecting journalists is about protecting the public’s right to know.
This legislation has been carefully written in consultation with attorney Charles K. Purcell, the state’s expert on the shield law, in addition to the N.M. Supreme Court and others. It steers clear of the line the Supreme Court drew in 1982. It applies only to legislative and executive agencies that have the power to summon journalists to testify about their sources or subpoena their notes and communications.
Journalists help safeguard our democracy. They shine light in dark corners. They expose wrongdoing and examine societal challenges. At their best, they help us find solutions. They are as integral to making our democracy work as those of us who represent New Mexicans in the Legislature.
With journalism increasingly under attack, it’s critical that we update our shield law and protect our journalists now, before there’s a crisis we must urgently address.
I hope you’ll join me in urging my colleagues in the Legislature to approve this critical bill before the session ends on March 22.
District 53 New Mexico State Representative Sarah Silva, D-Las Cruces, can be reached at sarah.silva@nmlegis.gov. Sarah Silva's opinions are her own and do not necessarily reflect the views of KRWG Public Media or NMSU.