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

Coakley gets it wrong on shield law

Martha Coakley

Martha Coakley

Bill Densmore has posted a crowdsourced Q&A with Massachusetts Attorney General Martha Coakley, a Democratic candidate for the U.S. Senate. (Disclosure: As you’ll see if you read it all the way through, I helped with one of the questions.)

I have not read the entire interview, but I did read her answer to a question about whether she would support a federal shield law to protect journalists who are ordered to reveal their confidential sources.

Coakley’s answer is troublesome, as she replies that she supports protection for “bona fide journalists.” I take that to mean card-carrying members of the mainstream media.

I am dubious of shield laws, and believe an absolute law would likely be ruled unconstitutional. At most, shield laws should require a judge to rule on whether a journalist’s testimony is necessary and if there might be some alternative way of getting the same information, as outlined by U.S. Supreme Court Justice Potter Stewart in the 1972 Branzburg v. Hayes decision. (Alas, Stewart was on the losing side, and his proposed balancing test has led a tortured existence.)

But whatever is protected, it ought to be journalism, not journalists. If an amateur blogger is engaging in journalism, then she should have just as much protection as a press-pass-wielding reporter. The test shouldn’t be who you are — it should be what you do.

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  1. Donna Morris

    “The test shouldn’t be who you are – it should be what you do.”

    I agree, but defining journalism will be just as contentious as the term “journalist” seems to have become in this new media world.

  2. yaya


  3. Newshound

    Thanks, Martha. There goes the First Amendment. Aside from studying the law and passing with high grades, I wonder if she has ever thought about the law.

    J. M. Near never would have received his professional bona fide journalism distinction, nor was he someone who set a standard as an ideal for the rest of us to follow. Thanks to justices such as the famed Oliver W. Holmes and Chief Justice Charles Evans Hughes, and the Chicago Tribune’s Colonel McCormick’s financial support, the First Amendment was preserved in a narrow decsion in the 1930s.

    I know: in this case we’re talking about the possibility of harassing some little fly-by night activist newspaper publisher out of business through court intimidation, rather than requiring a license to publish but to me it is the same kettle of man-eating fish.

    I could go on and on and on and on about how stupid and shallow Martha’s comment really is, but I think that would be stupid because I doubt that most of the rest of us are as dumb as horribly shallow as she.

    • Dan Kennedy

      Newshound: I think what troubles me the most is that her reference to “bona fide journalists” was not off the cuff. Rather, it was an e-mailed Q&A. She and her staff were able to consider their answers before returning the questionnaire.

      That said, have any of the other candidates been asked where they stand on a federal shield law?

  4. Newshound

    Yes, Dan. It is troubling. What is troubling, too, is that the other candidates might now provide the correct answer simply to patronize.

    What Near v. Minnesota means to me is that no matter how thread bare, financially desperate, morally insolvent, sleazy, ill-motivated a publisher of some slimy little weekly, that the rights of a journalist prevail the same as with the mighty New York Times, Boston Globe, etc.

    The poorly dressed reporter showing up taking pictures with his telephone has just as much right as NBC. That is the First Amendment, pure, clean and simple.

    It used to be darn hard if not merely impossible to start a competitive newspaper. There was a time, perhaps illegally, when a competitive start-up daily could not contract to receive AP and UPI news.

    In your home town, perhaps within a decade of when you were born, there was a weekly start-up, around 1960, and the Old Codger, not a bad person overall, went around to the advertisers and told them if they advertised in the new start-up they could not advertise in the Gazette. The uncertainty of success of the new weekly, leaving a merchant without a place to advertise, was enough of a threat to starve out the new weekly.

    The new frontier may not be a daily or weekly on newsprint – although that is the case in New Hampshire right now, but establishing who qualifies as journalist is horribly dangerous to a democracy.

  5. Patricia

    Well said, Newshound.

  6. Steve Stein

    The Senate Judiciary committee may have it right. Adam B reports in Daily Kos: “the Senate Judiciary Committee adopted language which will treat blogger-journalists as equals when it comes to the protections of a federal press shield”.

  7. Newshound

    Steve – The Senate Judiciary Committee has it completely wrong.

    If someone is doing an investigative writing with the intention of publishing it in any format, regardless of what that person has done in the past, or how that person customarily occupies their time, they are a journalist.

    Blogger-journalists as equals doesn’t begin to cut it. In some small towns there are a number of women who call around on the telephone and spread the news and in a most significant way, they are journalists, too.

    Sacco and Vanzetti were on the train attempting to escape capture for distributing pacifists pamphlets, so they thought, when arrested. They were executed without one shred of evidence, other than Sacco being short of an alibi to prove his innocence.

    Of course, they wouldn’t have been on the run in the first place if they had believed that one of their cronies captured with the pamphlets had jumped out rather than thrown out the window to his death during interrogation.

    The First Amendment is absolute, equal to all, big, small, rich or poor. It does not belong to corporate America.

    Brian Williams is a great journalist and as we know, he was a selected guest at last week’s State Dinner. That is corporate, giant American media being schmoozed. But how about the little old grandmother in Wyoming who is barely getting by with her most sincere devotion to publishing a country paper with less than 1,000 circulation?

    What is the chance that someone who has scraped together a few hundred dollars to send from his MacBook in PDF format pages to be printed on newsprint next month not to be considered a journalist while attempting to collect his or her news for the first issue?

    Or, for that matter, if he or she printed out one page on their laserjet and distributed door-to-door next month. If they are in the process of gathering news or to print opinion to distribute at some future time, they are a journalist right now.

    That is, if we still have a democracy and a Constitution.

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