The Finch Formerly Known As Gold

15 October 2005

This invisible shield

In the wake of a proposed Federal shield law for reporters, Lindsay Beyerstein has been thinking about the dynamics thereof, and they seem to cut both ways:

The right of a journalist to protect her sources is not a constitutional right. Individual jurisdictions have to decide whether the benefits of protecting the press outweigh the costs.

On the upside, these laws prevent the press from becoming an arm of law enforcement. Think about it. It's a reporter's job to gather information. It's as if a reporter has a big flashing sign over her head that reads "Knows stuff about stuff." There's always going to be a temptation for lazy law enforcers to subpoena reporters instead of doing their own investigation. Add to that the potential for authorities to intimidate and harrass journalists with subpoenas. The threat of a subpoena isn't a trivial one. Testifying can ruin a reporter's career because sources will know that her promises of confidentiality isn't worth anything. During the Nixon years, subpoenas were used as political weapons against troublesome journalists.

Unfortunately, shield laws can also impinge upon a citizen's right to bring all relevant evidence to bear in a legal dispute. Shield protections are also open to abuse by both journalists and sources.

Trying to find the middle ground is no easier here than in other human endeavors. In blogdom, a bigger concern seems to be whether the Citizen Journalist (™ Jeff Goldstein) will be extended the same rights and/or privileges as someone from the Real Live Newsroom, and if the effect of shield laws is to create two tiers of reporters, only one of which is acknowledged to have legitimacy.

Some people see shield laws as pushing journalism towards a professional model. This is a legitimate concern. We don't want the state determining who is or isn't a journalist, nor do we want the state to defer to the mainstream media's judgement about who's entitled to report the news. A state-enforced monopoly on reporting would be totally unacceptable in a free society.

Shield laws don't necessarily put the government in that unacceptable position vis-à-vis journalists, however.

Journalism can't be a profession because professions need gatekeepers. Doctors earn their professional rights by establishing that they are uniquely qualified and by agreeing to abide by a common ethical code. By contrast, journalists don't earn the right to investigate and publish their findings — that's a basic constitutional right that we all enjoy.

Shield laws exist to further the free flow of information in society at large, not to grant special powers to a group of people on the basis of their allegedly superior qualifications. Legitimate shield laws exist in order to create overall conditions under which the press can function optimally. Therefore, shield laws should use functional criteria to determine whether someone is a journalist — i.e., is this person reporting and disseminating information on matters of public concern? If we have shield laws that explicitly exclude bloggers and other non-traditional media workers, then we're faced with the worst of all possible worlds. In that case, the government would be making substantive decisions about who is a journalist based on the medium they publish in, their employment status, or the willingness of a media corporation to vouch for them.

It's fine with me if each case is judged on its own merits, but such an approach is definitely contrary to the presumed extant desire for standardized guidelines.

So: do we really need a Federal shield law? Joel Sax says we don't:

I oppose any "all animals are equal, but some are more equal than others" legislation. [Senator Richard] Lugar wrote this legislation to protect future Judy Millers. I think there is already plenty of adequate protection for honest journalists. We don't need a Saint Judy Law.

And to me, at least, there's the question of whether Lugar was motivated more by concern for the Judys, or for the institutions that deploy them.

Posted at 8:32 AM to Political Science Fiction