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

28 years later, still thinking about a shield law

With Congress once again wrestling with proposals to create a federal shield law (see this by Josh Stearns), I thought I’d try to dig up an essay I wrote for the trade magazine Editor & Publisher in 1985 — my first published piece of media commentary. It took me a few weeks, but with an assist from a helpful research librarian at Northeastern, I tracked it down.

I read it with my hands over my eyes, but it holds up better than I had expected. Essentially, I believe today what I believed then — that the First Amendment is for everyone, and that professional journalists deserve no greater protections under the Constitution than does the average citizen.

The only real difference is that, currently, I support efforts to try to carve out some limited shield protections for clearly defined acts of journalism, whether those acts are carried out by “the large metropolitan publisher who utilizes the latest photocomposition methods,” as Justice Byron White put it in Branzburg v. Hayes, or by an unpaid amateur blogger.

Reporters and the shield law — a differing viewpoint

Editor & Publisher, Sept. 28, 1985

By Daniel D. Kennedy

Screen Shot 2013-09-23 at 7.27.12 AMEvery few years a group of self-appointed leaders of the industry in which I work takes it upon itself to assert that news reporters have or should have rights that go far beyond those of the average citizen.

I suppose I should be grateful. I’m not.

Earlier this year the Massachusetts legislature wisely defeated a shield law proposed by a panel of journalists. The law would have given reporters the right to impede criminal investigations by refusing to identify their anonymous sources before grand juries.

The legislators showed courage — a trait that is usually in short supply in Massachusetts politics. The vote came just days after a popular television reporter barely escaped going to prison. She got off the hook when her confidential source agreed to speak with law-enforcement officials. [Note: I was referring to Susan Wornick, who this summer announced her retirement from WCVB-TV, Channel 5.]

The problem with a shield law is this: For journalists to be granted such a protection, an uncomfortable distinction must first be made between us and the rest of the American people. And the government, by necessity, would be the institution making that distinction.

Freedom of the press, as defined by the First Amendment, is a right granted to everyone. News organizations and their employees are protected no more and no less than the citizen who writes a letter of protest, circulates a petition or holds a sign at a demonstration.

When officials investigating a crime believe someone has information they need, they may compel him to tell a grand jury what he knows. The U.S. Supreme Court has clearly stated that professional journalists have no special privileges that would exempt them from this responsibility.

Those who advocate a shield law are tacitly admitting that reporters who withhold names from grand juries are breaking the law.

Other, more extreme press advocates assert that a shield law is not needed because the First Amendment already guarantees reporters the right to protect their sources.

But the First Amendment says only that “Congress shall make no law … abridging the freedom of speech, or of the press.”

All that means is that a newspaper or magazine publisher may print what he chooses. It would be difficult to read into the simple language of the First Amendment a clause that says obstruction of justice is legal when done by a reporter.

The Supreme Court, in Branzburg v. Hayes (1972), ruled that the First Amendment does not grant to journalists the right to keep their sources anonymous. The court had this to say about the consequences of a shield privilege:

The administration of a constitutional newsman’s privilege would present practical and conceptual difficulties of a high order. Sooner or later, it would be necessary to define those categories of newsmen who qualified for the privilege, a questionable procedure in light of the traditional doctrine that liberty of the press is the right of the lonely pamphleteer who uses carbon paper or a mimeograph just as much as of the large metropolitan publisher who utilizes the latest photocomposition methods.

A shield privilege, in other words, would lead to government regulation of the news business. Government officials would determine who is a reporter and who is not. The press would be made less free in the name of increased freedom.

The Supreme Court added in Branzburg that state legislatures are free to pass shield laws, and several have. But I think such laws are a mistake, and that legislators in Massachusetts acted properly.

At a time when the press is accused of elitism and arrogance, shield laws are another wall between us and the public whom we are trying to serve.

My views, I’ll admit, are not popular with my colleagues, most of whom favor a shield law. The concern they raise is that, without protection, they will not be able to do what is a normal part of their job. They fear their sources will dry up if they can’t keep them anonymous.

But shield protection has nothing to do with the way journalists usually work. Reporters can and do promise anonymity to some of their sources. The information these people provide — whether it is about an impending lawsuit or hazardous fill at a housing development — may be true or false. But in all cases their names may be protected.

Refusing to reveal the name of someone whom investigators need to question as part of a criminal case is another matter.

I would argue that a reporter should not promise anonymity to such a source and that he should cut short the interview if agreement cannot be reached.

But, while that may be a good guide for most situations, it is impossible to make a rule that would cover all cases. Occasionally a reporter may have to have a piece of information and need to make a pledge of anonymity to get it.

A number of reporters have paid the price, serving short stretches in jail on contempt-of-court charges for refusing to name names.

There is no easy solution to cases such as these.

As one who has never been in jail and would be less than enthusiastic at the prospect, I hesitate to make this suggestion. But perhaps jail is the price reporters occasionally have to pay as a cost of doing business.

I would contend that jail is a better alternative than asserting a right that is not granted to persons who are not employed by news organizations.

Freedom of the press is a right to be enjoyed by all. It is too precious to split into one set of privileges reserved for those of us who work in the news business and other, lesser set for modern Tom Paines working in their basements, alone and unheralded.

Kennedy is senior news editor of The Daily Times Chronicle of Woburn, Mass.

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  1. Dan, Will you refresh my memory please regarding where in Branzburg there was reference to the three standards articulated for forcing a reporter to divulge a source (my recollection is: 1)a compelling public interest in the information 2)relevant to the case and 3)unavailable anywhere else. Or maybe it wasn’t in Branzburg. Margie Arons-Barron

    • Dan Kennedy

      @Margie: You are remembering Potter Stewart’s dissent in Branzburg. He wanted a limited reporter’s privilege in the form of the balancing test you describe. Byron White, who wrote the 5-4 majority decision, wanted no privilege at all.

      Now here’s where it gets complicated. Lewis Powell wrote what Stewart called an “enigmatic concurring opinion” in which he sided with majority in ruling that there should be no reporter’s privilege, but worded it in such a way that it seemed like he sided with Stewart more than he did with White. For a generation, most courts applied the Stewart test because of Powell. But that has occurred with decreasing frequency in recent years because, after all, Powell voted with the majority, and because journalists have fallen out of public favor.

  2. lou gawab

    Let me try again, as my first comment was cut in half…

    Do you think the public at large is going to get behind this? There is a general disdain for the media and reporters. I recently was at a family gather where someone asked me what I knew about the reporters shield law. The family member said: “Why do reporters get a shield law? Do *I* get a shield law? Why should they get special rights that the rest of the citizenry doesn’t get?”

    And another relative said: “Courts have the highest priority when trying to see truth (and justice). If *I* was in court….I want the court to have access to everything they need to unearth truth. No one should allowed to hold back facts when a court is digging for truth.”

    Again, 2 different people recently….and, yes, I am paraphrasing dispite the quotation marks. 😉

  3. Mike Benedict

    “Courts have the highest priority when trying to see truth (and justice). If *I* was in court….I want the court to have access to everything they need to unearth truth. No one should allowed to hold back facts when a court is digging for truth.”

    That’s a slippery slope if I’ve ever heard one. It suggests — perhaps unintentionally, but nevertheless — that the right to privacy (a right the SC has interpreted as inherent in the Fourth Amendment, since it’s not in the Constitution or Bill of Rights) and the Fifth Amendment take a backseat to the actions of the Courts.

  4. Matt Kelly

    Shop Talk at Thirty! Thanks for reminding me of that column from years gone by…

  5. Lou Gawab

    “”….that the right to privacy (a right the SC has interpreted as inherent in the Fourth Amendment, since it’s not in the Constitution or Bill of Rights) and the Fifth Amendment take a backseat to the actions of the Courts.””

    Are reporters invoking the “right to privacy”? I don’t think so.

    Wouldn’t the right to privacy be a right to “personal privacy” and not a privacy to hold back facts that may be deemed relevant to a case?

    Should anything get in the way of the courts seeking the truth?

    IN any event, my original comment was about whether the public would get behind this….and I seriously doubt it.

  6. Mike Benedict

    Lou, whether reporters (or anyone else) “invoke” a right is irrelevant. The SC is there to protect the rights bestowed by Congress regardless of whether a given defendant is aware of them.

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