Chilling effect, defined

I’m something of a skeptic when it comes to shield laws. The whole point of the First Amendment is that it belongs to all of us, not to the media by themselves. As soon as you pass a law saying that reporters don’t have to give up their confidential sources, then you – or, rather, the government – has to start defining who’s a journalist and who isn’t. Not impossible, perhaps; judges make these kinds of determinations on a case-by-case basis all the time. But hardly an ideal situation.

Still, news that the Cleveland Plain Dealer has decided not to publish two investigative reports so as not to expose its journalists to the possibility of imprisonment shows that the situation has really gotten out of hand post-Judith Miller, post-Matthew Cooper. Mark Fitzgerald reported on this yesterday in Editor & Publisher. Robert McFadden has a follow-up in today’s New York Times. Plain Dealer editor Doug Clifton says the stories are “profoundly important,” but that he doesn’t dare risk publishing them following the imprisonment of Miller, who has refused to give up her source in the Valerie Plame matter.

Clifton’s stance may be part overreaction, part grandstanding. In fact, nothing has changed legally, and his reporters are presumably no more or less likely to be called before the grand jury than they would have been before the Plame matter brought the question of journalistic privilege to public prominence. In 1972 the Supreme Court ruled, in Branzburg v. Hayes, that journalists, like all citizens, must testify before the grand jury when called to do so. As a practical matter, the courts have tended to rely on a balancing test called for by one of the dissenters, Potter Stewart. But that’s a custom, not a constitutional principle.

Still, there’s no question that the government is ratcheting up its efforts to haul journalists into court and force them to testify. As Mark Jurkowitz observes, this is taking place at a time when public confidence in the press is at a low, making it all the harder for the media to fight back. We don’t know what the Plain Dealer isn’t telling us – but Clifton’s decision to hold back suggests that we shouldn’t lose sight of the reasons that journalists must sometimes rely on confidential sources. Even if Clifton is making the wrong choice, the chilling effect of Miller’s imprisonment is already hurting the public.

Welcome back. On a personal note, welcome to the first real post to Media Etc., which now enters beta mode before its official unveiling. No more test posts – if I have nothing to say, I won’t say it. I also probably won’t post regularly until, say, mid-August, just before the fall semester begins. I plan to keep this low-key until I’ve worked out a few more bugs. So, shhhh! For the moment, let’s keep this just between us, okay?