From the Kba Media-bar Chair

• Citation: Vol. 92 No. 1 Pg. 16
• Publication year: 2023
• Pages: 16

From the KBA media-bar chair 92 J. Kan. Bar Assn 1, 16 (2023) Kansas Bar Journal February, 2023

January, 2023

An Overview of Kansas' "˜Shield Statute,' aka Journalist's Privilege

By Eric Weslander, KBA Media-Bar Committee Chair

Note to Kansas litigators: If you ever find yourself in a situation where you think a journalist's interview notes, recordings, or other work product may be a potential source of information helpful to your case, you need to be aware of the protections of the Kansas "shield statute," K.S.A. 60-480, et seq.

In 2010, Kansas became the 38th state to adopt a shield statute, also known as "journalist's privilege," that protects journalists' unpublished notes or other source material from disclosure except in strictly limited circumstances. The statute formalizes and furthers journalists' rights under the First Amendment and the Kansas Bill of Rights to gather and disseminate news freely without the threat of undue government intrusion into their work product or their interviews with sources.^[1] A federal shield statute, the Protect Reporters from Exploitative State Spying act — or PRESS act — passed the U.S. House of Representatives in September 2022 and was under consideration in the U.S. Senate at the time this article went to press.

The conflict between newsgathering and litigation discovery occasionally makes headlines in Kansas, such as when the Kansas Attorney General's Office issued a subpoena in July 2021 to Justin Wingerter, a former Topeka Capital-Journal reporter who had authored a book on a wrongful murder conviction that had become the subject of a lawsuit against the state of Kansas. The subpoena had apparently been issued without the knowledge of Attorney General Derek Schmidt — a former journalist himself, and who was instrumental in enacting Kansas' shield law — and was promptly withdrawn.

At the time, Wingerter told Kansas Reflector that complying with the subpoena would have meant turning over virtually "everything" in his file, including material from sources to whom he had promised confidentiality, and that he therefore considered the subpoena unconstitutional and did not intend to comply with it.^[2] (Under the statute, a journalist cannot be held in contempt for failure to comply with a subpoena except after exhausting the specific procedures in the shield act, including the right to a hearing.)

Earlier this year, the Kansas shield statute was in the news again when attorneys for the...