Today’s Reno Gazette-Journal has an opinion piece from Gene Policinski of the First Amendment Center lauding the “journalist shield law” that is now under consideration in the US Senate.
Ironically, for being the Executive Vice President of an organization dedicated to educating the public about the First Amendment, Mr. Policinski badly misunderstands both the words of the amendment itself and the philosophies that underlie it. He writes:
The latest version of the bill also abandons an attempt to define a journalist as one who earns money in the profession, in favor of a simple statement that those covered must be engaged in the regular dissemination of information to the public. This definition is much more in line with the First Amendment, which attaches no income, circulation or advertising definitions to a “free press.”
At the moment, there is no balance in federal courts on the issue of confidential sources for journalists — even most First Amendment advocates would concede that federal authorities hold the ultimate trump cards: subpoenas, particularly when driven by a grand jury investigation into criminal activity. But there’s no question that the public good has been served many times. For example, whistleblowers are able to speak of government waste and corruption without fear of losing their careers.
No shield law would be a perfect solution to the concerns raised by either a free press or government officials charged with protecting public safety and national security. And the proposed law doesn’t — and shouldn’t — speak to yet another issue, one of journalistic ethics. Overuse of confidential sources also masks the public’s right to know which government official is speaking or leaking.
But striking a reasonable balance between citizen safety and informing citizens about how their government is really operating would seem to serve the interests of democracy without “eviscerating” either the First Amendment or national security.
What Mr. Policinski misses is that the First Amendment also doesn’t have a “regularly engaged in” requirement before a free press is protected. The Senate bill may be “more in line with the First Amendment,” but it’s still not actually in line with it.
The First Amendment makes us all journalists by birthright, and the Internet makes us all able to cheaply and easily exercise that birthright as frequently or infrequently as we wish.
Similarly, all reporters working in this country, just like anyone in any other profession, are subject to the same legal responsibilties that come with residence/citizenship in the US. You have to respond to subpeonas, testify truthfully under oath if called (minus 5th Amendment protections and other well established privileges, of course), not violate laws protecting state secrets, to not be treasonous to the United States, etc.
If a reporter merely investigated something, and the government wants them to testify about their investigation, most of their testimony would be hearsay and inadmissible anyway. But if the reporter is passing on leaked information that has been properly classified, no American who believes in national security or the rule of law should want those people protected for their treasonous actions.
Shielding the leaking source protects the enemies of our country, including domestic moles working for foreign powers, or simply rabid partisans who are willing to see soldiers killed in the field if it serves a partisan agenda. It serves no other purpose.
If the interest is in ensuring an informed public, the effect of shield laws are quite the opposite. Professional reporters are, of course, interested in these laws because it allows them to print salacious stories without having to “show their work.” But shield laws allow a reporter to print the most outlandish and personally or militarily damaging rumor as “fact” without giving the public the benefit of “considering the source.” Without that crucial piece of context, the public is LESS informed, not more. (This is of course evidenced directly by the continued incorrect impression spread by the MSM that Valerie Plame was “outed” illegally by anyone in the Bush Administration, that Joe Wilson’s report repudiated rather than supported the UK intel yellowcake report, etc.)
The American founding philosophy and the Bill of Rights itself is interested in individuals, not arbitrarily defined professional classes of people. If shield laws are to be implemented, they must apply to ALL Americans, not just ones with press passes.
Shield laws which draw arbitrary lines around certain kinds of press, or certain people engaged in it, are simply unconstitutional and should be shunned by a society that believes that all Americans are equal under the law.
Is it really an ‘arbitrarily defined’ professional class? The Bill of Rights does call for freedom of the press.
I’m not necessarily in favor of blanket shield laws–but I do respect the right of reporters to not divulge their sources.
If no one is willing to give tips to reporters, we’re going to have to wade through Internet postings under pseudonyms with fake email addresses to figure out what’s real and what’s not (good luck), while the “real press” does nothing but report on Britney’s custody hearings and who got booted off Dancing with the Stars last night.
The First Amendment protects the ability of ANYONE to be the “press” – remember that small pamphleteers were a very important part of the dialog, and that perceived unfair taxes on paper products were a major contributor to the revolutionary fervor. To think that the First Congress passed the 1st Am. with the idea that it was creating a professional journalist class that would be eligible for special protections under the law simply doesn’t make historical sense.
Reporters don’t have any more (or less) right to refuse a subpoena than I do. They certainly can refuse to divulge sources, and they can sit in jail just as if I felt strongly enough about a secret that I was willing to face contempt charges.
People gave plenty of tips to reporters long before shield laws. The difference is that back then, reporters actually had to do their job, follow up, and get some on-the-record or physical corroboration of that tip. (Or they didn’t, and we had the golden age of Yellow Journalism.)
Remember – “whistleblowers” are rarely sounding the alarm for altruistic reasons. Journalist shield laws allow disgruntled employees or jilted partners to get any bad thing they want about a business or public figure in the paper, and the victim has no ability to investigate or adequately respond. MAYBE they could win a libel suit, but by then, the damage is done.
As you point out, journalists are lazy enough. We don’t need to give them a legal license to not bother checking their facts without consequence. To do so isn’t a protection of the First Amendment – it’s anathema to it.