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

John Sununu’s muddled shield-law soliloquy

Good luck making sense of John Sununu’s column in today’s Boston Globe about efforts to enact a federal shield law, which would allow journalists greater leeway in protecting their sources.

First he asserts that “our Constitution’s First Amendment already offers the press unequivocal protection,” seeming to position himself as an absolutist on the matter. He does not mention what he plans to do about Branzburg v. Hayes, the 1972 Supreme Court ruling that the First Amendment does not, in fact, include a shield privilege.

Ah, but no so fast. Farther down, Sununu pulls a switcheroo and argues that a shield law might encourage irresponsible journalism:

By protecting and encouraging the use of anonymous sources, the law may encourage a cavalier approach to checking multiple sources or leaking sensitive information. It could also provide unwarranted protection to government or private-sector workers using anonymous leaks to undermine their supervisors.

So which is it? We don’t need a shield law because the First Amendment already allows journalists to protect their sources? Or we don’t need a shield law because journalists shouldn’t be allowed to protect their sources?

It’s pretty hard to agree or disagree with a columnist when you can’t figure out what he’s trying to say — or, as I suspect is the case here, when he has no idea what he’s writing about. Just a mess.

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  1. The one good point Sununu raises, albeit not with great clarity, is the difficulty in identifying just who, in today’s multi-platform world of print, websites, Twitter and blogging, is a journalist and therefore entitled to a shield law. Is it indeed only someone who is paid for his or her journalistic product? Do we really want to have the government deciding who is a journalist? If it did, to what extent would it move to license or certify journalists? Please tell me where the three-pronged test in the Branzburg case falls short, if properly applied.

    • Dan Kennedy

      @Margie: There is no three-pronged test in the Branzburg case — that’s a common misconception. Potter Stewart proposed such a test, but he was on the losing end. I am skeptical about a shield law for exactly the reasons you state, but I think it might be worth trying if it were based on defining certain acts of journalism rather than who is a journalist.

  2. Aaron Read

    If you can’t tell what a politician is trying to say because he’s saying nothing, then look at what he’s saying by saying nothing.

    With that in mind, what’s Sununu actually saying here?

  3. Assuming one can define who is a journalist, why should a journalist be given special First Amendment privileges? Another law defining (aka restricting) free speech is hardly the path to protecting our freedoms.

  4. This honestly does not seem like a hard problem to me. Say I got classified information from an unknown government official. Did I do so with the intention of disseminating the information to the public? Then I was acting as a journalist and should be able to cite the First Amendment as a reason why I should not be compelled to reveal my source to the government. Was I hoping to sell the information to North Korea, or make a killing on the stock market? Then I was not acting as a journalist and my attempt to withhold my source should fail.

    I guess there should be a public interest test as well–you don’t want to shield people who disclose e.g. health records from the VA for no good reason.

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