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Journalist Shield Laws – How to Unconstitutionally Help Our Enemies and Keep the Public Ignorant

November 9th, 2007 · 2 Comments

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.

Tags: 1st Amendment