By Dan Kennedy • The press, politics, technology, culture and other passions

A privilege for the privileged

Amy Gahran of the Poynter Institute writes that a proposed federal shield law would actually be a step backwards. Under the original version, the bill would protect “a person engaged in journalism” from having to reveal his or her anonymous sources, a definition seemingly elastic enough to cover bloggers.

The new version, by contrast, covers “A person who, for financial gain or livelihood [Gahran’s emphasis], is engaged in journalism,” which would largely restrict the shield law’s protections to professional journalists. Gahran writes:

Journalism is a practice, not a priesthood. At its core it’s about committing acts of journalism, not about getting a degree, being employed, or even getting paid. I think a federal shield law with such exclusive language would only serve to diminish the practice and independence of journalism, especially among people who are sticking their necks out entirely on their own to do it.

She adds that she hopes President Bush vetoes it. (Don’t worry; he will.)

As we’ve seen in recent years, journalists have no constitutional right to protect their anonymous sources if they’re call into court to testify. Judith Miller‘s case is the best-known, but there are many others as well.

Forty-nine states either have shield laws or state-court opinions that essentially require judges to consider all other options before forcing journalists to testify. But there is no such protection at the federal level, which is why Congress is now considering such legislation.

The trouble is, as Gahran notes, the First Amendment recognizes no special privileges for journalists as a class. Nor should it. The First Amendment is for all of us. By passing a shield law that protects journalism as an activity, Congress would be honoring the spirit of the First Amendment. The change Gahran rightly worries about would only protect members of the “priesthood.”

It would be interesting to learn why the language was changed, and who was behind it.

NPR’s “On the Media” has a good summation of the shield-law debate.

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  1. MeTheSheeple

    Would Google ads count as financial gain for a blog?I was more concerned with the exceptions to the shield law, which sound awfully vague. It’s not hard to think about things like the national security exemption blocking classic stories like the Pentagon Papers or more recent ones including Abu Ghraib, CIA prisons, government FISA violations and other useful watchdog functions that unveiled government misconduct.

  2. Richard Jennings

    There are several views on this, you may want to review what Rob Port from Congoo News says about the shield law: do not know if I agree with the law and I think Bush should Veto it.

  3. MeTheSheeple

    Richard,You may wish to read this letter from an ACLU official describing how the first use of the “state secrets” exemption covered up a lack of maintenance that got several people killed.More detail here; note this passage here, which seems directly on point with what you posted:The disclosures of the documents originally denied in 1953 “afford a rare opportunity to compare a government privilege claim with the underlying, allegedly ‘secret’ information,” wrote two attorneys in a recent critique of the matter.”This comparison highlights the risk of permitting the executive branch to determine, without close judicial scrutiny, whether relevant government information may be withheld from discovery,” according to D. Churchill and E. Goldenberg in a paper entitled “Who Will Guard the Guardians? Revisiting the State Secrets Privilege of United States v. Reynolds,” published in Federal Contracts Report, vol. 80, no. 11, September 30, 2003.On its face, I agree with that Congoo post: If national security isn’t at risk, it shouldn’t be classified. That’s great, in theory. But how do you actually ensure that happens? Were aircraft maintenance records vital to national security? How about a history of the Vietnam War? What happens when a newspaper hears that the government is violating the laws in something centered around national security?

  4. MeTheSheeple

    This Slate article, The Dog Ate My Evidence by Dahlia Lithwick, neatly summarizes the many problems with assuming the government always tells the truth about what’s a state secret.

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