Do We Need a Shield Law?

Journalists should be able to protect their sources, within reason

Uncategorized July 25, 2013 0

Do We Need a Shield Law? Journalists should be able to protect their sources, within reason Last week, an appeals court in Virginia rejected...

Do We Need a Shield Law?

Journalists should be able to protect their sources, within reason

Last week, an appeals court in Virginia rejected New York Times reporter James Risen’s request to keep secret a source who had disclosed secret CIA details for his book. The 2-1 decision reversed an earlier ruling that had given him the right to keep his source a secret.

The divided rulings show how contentious the idea of journalistic privilege is when it comes to criminal investigations.

The issue of how journalists can report on government activity — especially national security — while maintaining an effective network of sources is critical for the health of the country. Put simply, without detailed reporting about what the government keeps hidden, we have few other ways to either expose or oppose wrongdoing.

Yet too often, effective journalism requires some degree of law-breaking — either by a source or, more rarely, by a journalist. Whether such law-breaking is justified is a deeply contentious issue in the news industry.

Eight years ago, another national security reporter faced a choice similar to Risen’s. Judith Miller, who also wrote for the New York Times, was called upon to reveal her source for a story outing CIA agent Valerie Plame. Ms. Plame’s outing was part of the bitter debate leading up to the 2003 invasion of Iraq, when Ms. Plame’s husband, former ambassador Joseph Wilson, publicly disputed the Bush administration’s claim that Iraqi agents were trying to purchase yellowcake uranium in Niger. Ambassador Wilson alleged at the time that Bush administration officials outed his wife’s work as a spy in retribution for his embarrassing criticism of Iraq war intelligence.

In the investigation that followed Ms. Plame’s exposure, a grand jury subpoenaed Judith Miller to make her reveal her source for revealing Ms. Plame’s identity. Ms. Miller refused and went to prison.

The appeals court ruling last week decided that reportorial privilege does not protect a reporter from being legally compelled to participate in a criminal ruling.

Until now the only testimonial privilege for unofficial witnesses that is rooted in the Federal Constitution is the Fifth Amendment privilege against compelled self-incrimination. We are asked to create another by interpreting the First Amendment to grant newsmen a testimonial privilege that other citizens do not enjoy. This we decline to do.

Yet the circumstances of Mr. Risen and Ms. Miller could not be more different. Risen is defending the alleged source for a chapter in his 2006 book, State of War: The Secret History of the CIA and the Bush Administration. The government has accused that source of improperly disclosing classified information about a CIA operation to provide Iran with flawed nuclear weapons plans.

Ms. Miller, on the other hand, was protecting an administration source who had outed the spouse of a whistleblower in retribution.She also had few defenders among her journalism colleagues because of the stories she printed in support of the invasion of Iraq, which falsely alleged that Saddam Hussein had weapons of mass destruction.

Despite the differences between the two, there is no clear precedent for when journalists are justified in concealing their sources from legal recourse or scrutiny. Now that the 4th Circuit has rejected journalists as a special class deserving of unique legal protections, it’s worth asking if journalists should be protected — and, perhaps even more broadly, what a journalist is.

Most states have what’s known as a shield law, which protects journalists from being compelled to testify in such a way that exposes their sources. But there is no similar law at the federal level.

Yet it’s unclear exactly who deserves protection even should a national shield law get passed. At the end of 2011, a federal judge ruled against a Montana-based blogger, saying she did not deserve First Amendment protection for accusing Oregon attorney Kevin Padrick of corruption.

Based on the evidence presented at the time of trial, I conclude that plaintiffs are not public figures, defendant is not ‘media’ and the statements at issue were not made on an issue of public concern… Thus, there are not First Amendment implications.

The judge went on to note that because the blogger did not have credentials or an affiliation with a formal news agency, and did not perform sufficient fact-checking for her writing, she did not qualify as a journalist.

Shield laws protecting journalists sound great in theory, but rely on defining what journalism actually is.

There is no settled definition of a journalist, either legally or academically. A blogger can be vulnerable to a judge arbitrarily ruling she is not a real journalist and therefore is liable for defamation. While there is relatively little danger of a traditional journalist employed by an established news organization being caught up in a similar court case, the ambiguity of what a journalist is should spark concern for those trying to defend journalism as a protected class.

The biggest questions about reporting as a protected First Amendment activity aren’t wrapped up in the larger question about how one defines “journalism.” The Department of Justice recently released its guidelines on what it thinks journalism is, partly as a response to several recent controversial investigations. Reporters at the Associated Press (who had their phone records seized), Fox News (one reporter was investigated as a possible criminal for reporting), and the New York Times are journalists by anyone’s definition. Even so, they all have faced legal scrutiny by DOJ lawyers for their reporting on the assumption that they crossed a line into illegal activity.

Even so, it’s not clear that a national shield law is necessary or even appropriate. States face different concerns than the federal government when it comes to national security issues: They are not responsible for the country as a whole, and national security is not a major concern the way it is for the federal government. The stakes in a journalist concealing a source in a local criminal proceeding are a bit different than a journalist revealing the details of international espionage about, say, a nuclear confrontation with North Korea.

At a national level, could a shield law be meaningful without concretely defining what constitutes journalism as a protected class? That, too, is far from certain — especially as the lines between amateur and professional journalism become blurrier. But it’s entirely possible that in the push to protect some journalism from legal retribution, other forms of it could be sold up the river. And no one should want to see that.

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