A special prosecutor has subpoenaed two Philadelphia Inquirer reporters in an effort to identify their confidential sources, but the reporters have a powerful ally in Pennsylvania’s Shield Law.
The prosecutor is examining leaks related to a grand jury investigation of Pennsylvania Attorney General Kathleen Kane. State officials want to know where the Inquirer reporters got their information regarding the grand jury’s deliberations, which by law are secret.
However, experts say the prosecutor has a steep legal hill to climb.
Mike Berry, an attorney specializing in media and First Amendment issues, said that while Pennsylvania’s laws on some media issues such as libel and defamation aren’t necessarily friendly to journalists, the state’s Shield Law, which protects reporters from having to share confidential sources, is among the nation’s strongest.
“In Pennsylvania, there is an absolute Shield Law that makes abundantly clear that no reporter should be required to disclose the identity of a confidential source in any proceeding, relating to any investigation, involving any government entity,” Berry said.
The law protecting confidential sources was tested about 50 years ago, Berry said, and the precedent won’t help the prosecutors.
“A reporter reported on proceedings involving a grand jury and then was subpoenaed to testify who the source was,” he said. “At that time, back in the early 1960s, the Pennsylvania Supreme Court said the law was unambiguous, and that a reporter could not be compelled to reveal their sources, even in the context of a grand jury leak.”
No Pennsylvania journalist has been successfully compelled to share a confidential source since the Shield Law was passed about 80 years ago, Berry said.
A grand jury has been looking into whether Kane leaked secret material to embarrass a former colleague. Kane has denied those allegations and claims she’s being railroaded by political foes. The Inquirer recently reported that a grand jury would recommend charging Kane, triggering the special prosecutor’s subpoenas.
Officials at the Inquirer say that rather than reveal the sources of those reports, their reporters will invoke the Shield Law and won’t be naming names.