A Utah Supreme Court advisory committee has been working to change that. It has drafted a proposal to create a reporter's privilege in judicial proceedings, allowing journalists to protect the identity of confidential sources.

But attorneys for local news organizations say journalists are better off without a rule than they would under the committee's proposal.

"It's more like Swiss-cheese protections," said media attorney Michael O'Brien. "There's lots of holes in it."

News media attorneys have received support from Utah Attorney General Mark Shurtleff, who backs an alternative version of a reporter's privilege for confidential sources.

The issue of whether journalists should be allowed to protect such sources drew national attention in 2005 when New York Times reporter Judith Miller refused to name a source during her grand jury testimony in a special prosecutor's investigation into the leak of a CIA operative's identity. Miller served almost three months in jail for contempt. In California, blogger Josh Wolf has been jailed for more than six months after he refused a judge's order to hand over video footage he had shot of a protest.

Nationally, several bills to create a "shield law" that would protect reporters from having to divulge confidential sources have failed in Congress.

John Lund, chairman of the Utah Supreme Court advisory committee, noted the group is charged with formulating rules of evidence for court proceedings, not creating a rule tailored to benefit reporters.

"This is an advisory committee on rules, not a legislative process," Lund said. "If the rule doesn't do it for [news media attorneys'] constituency, they have other options," such as legislation to create a shield law.

Still, Lund said, the proposed rule respects the First Amendment by allowing reporters to protect confidential sources.

"If you sit down with a confidential source and the source says, 'My problem is, if you get dragged into court, then I'm at risk, and I need to be sure you won't disclose me,' we wanted reporters to be able to say, 'Yes,' to that question," Lund said.

But O'Brien and attorney Jeffrey J. Hunt - who represent the Utah Press Association - said the proposal includes six exceptions to protecting confidential sources, and includes no protection for unpublished, non-confidential information, such as reporters' notes, tape recordings, photographs and video outtakes.

O'Brien, who represents The Salt Lake Tribune , said unpublished, non-confidential material accounts for most of the information sought by police, prosecutors and civil attorneys.

The rule would allow those entities to issue subpoenas "to rummage through reporters' notes" without a showing of "need, materiality or the inability to obtain the information elsewhere," he said.

Lund challenged that claim, saying that the disclosure of unpublished, non-confidential material simply puts reporters on the same footing as others who testify. "That's the area where the news organizations are not different from any other business," he said.

For example, Lund said, his law firm can only claim a privilege to information that falls within the lawyer-client privilege.

The proposed rule also does not provide protection for journalists to safeguard the identities of government whistle-blowers in cases where the leak itself is alleged to be a crime, Hunt said.

"Think NSA [National Security Agency] domestic spying program, Pentagon Papers case and Watergate," said Hunt, who represents the Deseret Morning News .

O'Brien noted: "The First Amendment gives the press a special role in our democratic form of government. The framers of the Constitution wanted reporters to be able to go out and gather the news without being constantly hounded by subpoenas."

Hunt predicted there will be "stiff opposition" to the proposed rule.

The media attorneys support an alternative rule that is consistent with the balancing test used for two decades by Utah courts and which is similar to the approach taken in most states that have protections for reporters. Under that criteria, courts balance the various competing interests and rights of judicial parties when deciding whether to compel testimony.

Utah Attorney General Mark Shurtleff also favors the alternative rule and said he hopes to rally support among county prosecutors.

Shurtleff believes some sources prefer talking about crime to reporters rather than the police, which still allows police to collect evidence, even if they don't know the original source.

"The bottom line is, we in law enforcement recognize a need for confidential sources," Shurtleff said. "If there is no privilege [protection] to go to a reporter, they may not report at all."

The rule proposed by the advisory panel includes these exceptions in which a reporter would have to divulge a confidential source:

* Information that enables or aids anyone to commit a crime;

* A clear and imminent threat of harm to any person or place if the information is withheld;

* Information falling within every citizen's duty to report - such as abuse of children or elder adults - to police or child welfare authorities;

* A reporter's direct observations of the commission of a crime, or physical evidence of a crime possessed by a reporter;

The alternative rule to the advisory committee's proposal was posted by Provo attorney M. Dayle Jeffs, who was one of five committee members who voted against the more restrictive rule. Twelve committee members voted for the proposed rule, Jeffs said

Both the proposed and alternative rules will be forwarded to the Utah Supreme Court.

The alternative rule grants reporters the privilege to refuse to disclose sources and news information unless a court determines by a preponderance of the evidence that:

* The entity or person seeking the information has made reasonable efforts to obtain the information from sources other than the reporter;

* The information is relevant to an issue of substantial importance and goes to the heart of the matter;

* The interests in compelling disclosure of the information outweigh the interests in protecting the free flow of information to the public.

"We're hoping the committee will revisit the issue and adopt the alternative rule," Hunt said.

shunt@sltrib.com