Shield laws: be careful what you wish for

There has been talk of shield laws for both journalists and bloggers lately, promising to protect us from being legally compelled to reveal sources. Sounds well-intended enough -- certainly we would like our journalists to be able to operate without being punished for doing their jobs, right?

And yet few people have recognized the risk entailed in the idea of a shield law: it gives the government the power to decide who is and isn't a legitimate "journalist".

As with most well-intended regulation, it will likely have the effect of aligning the interests of government and journalists. After all, a journalist with special legal protections (ie, a license) now has something to lose -- and it would be a shame to lose that privilege, wouldn't it? Many, consciously or otherwise, will find that the best way to protect the privilege is to stay in the government's good graces. (My friends on the left would call this "co-opting".)

We've seen this dynamic again and again in the case of industries that have been regulated with the goal of "protecting" some constituency or another. That industry's loyalties are no longer simply with consumers -- now they have also to keep the rulemakers happy. Shouldn't journalists' primary benefactor be their audience?

If there is to be a shield law of some sort, it must apply to citizens, not a newly-created class of citizen. In other words, I don't think journalists are special. Asking government to define "journalist" or "journalism" is an Orwellian exercise.

Or am I looking a gift horse in the mouth?

Comments

[The Gentle Cricket]

It's a difficult subject. On the one hand, we do not want journalists or their sources prosecuted for exposing government corruption (analogous to whistle-blower protection laws), but we don't want to give people a free pass to make up sources in the name of pursuing an agenda, or protecting someone who may have compromised national security.

[jay dedman]

The pitfalls of regulation are well-known. Just as the pitfalls of a totally free-market are equally well-known.

Currently, there are some journalists (mainstream press) who have certain protections under the law. Isn't the argument to now protect journalists who use the web?

You are correct that it's a slippery slope trying to define who is "doing journalism" and who is not.

Let's say we forget the shield law. Let's define what limits the government has on requesting notes/tapes from citizens/journalists. Should the government be able to get any notes/tapes they want...basically making everyone surveillance cameras?

Instead of protecting journalists...is it better to restrict government access to information?

There is some hard evidence to at least question how the federal government conducts itself: http://tinyurl.com/yp4ofn

[Richard Koman]

I wrote the post you link to here. The idea that a shield would apply to everyone completely misses the point. A shield law is a qualified privilege, like the attorney-client privilege, the spousal privilege, etc. The idea of a "privilege" is that it's for a set class of people to futher some public policy goal. What possible policy goal is furthered by protecting everyone from having to tesify? It would make the courts unworkable. The policy goal of protecting journalists is that they provide a public service, they uncover that which government and corporations would like the public not to know. They do that by getting people on the inside to tell them, in confidence, what's going on. They provide a public service by exposing such secret dealings to public scrutiny. This is why Nixon resigned, why Gonzales will resign, why Clinton was humiliated. Without an assurance of confidentiality, insiders wouldn't provide that information. That's why journalists are protected. That's why bloggers who provide promises of confidentiality should be protected. And that's why Joe Blow-citizen should *not* be protected. It furthers no public policy to protect him and it irreperably harms the pursuit of justice *to* protect him.

[Matt S]

Richard, hi, thanks for the comment (and apologies for the delayed response). I agree with all the above, in terms of why a shield law is attractive. The ability to report information while minimizing legal risk is a worthy goal. But I am unsatisfied with distinction between the protected and non-protected classes.

If I, as a citizen, become privy to some information that embarasses a public official, and email it to my friends, it would appear that I am not protected under a shield law. However, if I take 5 minutes and put that information on blogger.com, apparently at that point I become protected.

Is that a correct analysis? If so, it seems the distinction between jounalist/blogger and non-journalist/blogger fairly trivial, which causes me to wonder why we would make such a distinction in law.

From what I have read, it seems that the proposed law is moving in the direction of defining journalism as an activity, versus journalist as a category of person. If so, it would allay some of my concerns.