Tag: shield law

The future of journalism and the law

This Friday I’ll be taking part in a panel discussion titled “The Future of Journalism: Law and Ethics in a Changing Media Ecosystem.” It’s part of an all-day conference called “Journalism’s Digital Transition: Unique Legal Challenges and Opportunities,” sponsored by the Citizen Media Law Project and to be held at Harvard Law School.

Our panel, to be held from 3:10 to 5 p.m., will focus on issues such as whether shield laws can be crafted so that bloggers and citizen journalists can protect their confidential sources, and if the shift toward nonprofit journalism means fewer First Amendment rights. (Among other things, non-profit organizations may not endorse political candidates.)

The other panelists:

The moderator will be Phil Malone, clinical professor of law and director of the Cyberlaw Clinic at Harvard’s Berkman Center for Internet and Society.

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.

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.