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Thursday, May 22, 2008

What's in the cards you don't play?

Reader-submitted question: Do you think there should be a federal shield law for journalists?

No.

First, remember that I am not a lawyer or an expert on the policy implications of shield laws. If you want that sort of information, you are on the wrong blog.

I wrote about journalistic privilege a few months ago. The Cole's Notes version of that post is that the phrase refers to a reporter's decision to defy a court order that would otherwise force him or her to reveal information, usually the name of a source.

This is not a real privilege like the kind lawyers have. Your lawyer will keep your secret within certain limits and can't be forced to tell. Your friendly neighbourhood reporter, on the other hand, can be sent to jail or fined for contempt of court. This usually doesn't happen, though. Usually, one of two things will happen:

  • The reporter will crack and give up the information. This sometimes happens when a judge refuses to consider a fine and insists that the reporter will sit in jail until he gives up the information. Although editors and producers are usually willing to pay a fine for the sake of preserving their journalistic integrity, they do not want their employees to go to jail. They may tell the reporter to reveal the information instead.

  • Someone else will come forward and give up the information. The reporter is usually keeping a secret about the identity of a confidential source, but it's sometimes about original research. In any case, someone else has the information the court needs. That person will often come forward to keep the reporter out of jail.
Some people have suggested that there should be a federal shield law to define reporters' right to protect their sources. I've been told that some states have shield laws, too.

I don't know much about the implementation of shield laws, but I'm cautious about them. I do understand why reporters would want an honest-to-goodness privilege -- heck, I don't want to go to jail, either -- but I think it's dangerous.

The media are representatives of the public. They should get everything the public can get, but the flip side of that is that they should not get anything the public cannot get. We can't create a special class of people who have a different type of access or a different ability to defy court orders.

I would think the media would be concerned about this, too. A federal shield law could probably only work if reporters were regulated in some way. That's the sort of thing people talk about from time to time and realise is a bad idea. Journalism is not regulated in democratic societies, unless you count the libel laws and other laws that all citizens have to follow. The industry is informally self-policed using ethical guidelines that vary from one publication to another. A reporter who really screws up will not work again, but it's not because he lost his licence to work as a journalist. It's because no editor or producer who knows his history will hire him. There is no central organization that can certify or censure individual reporters. Who would take on this role? The federal Department of Propaganda?

Who would be considered a journalist, anyway? This is dangerous territory. Some bloggers are definitely journalists. Are all bloggers? I think you could argue that I am a columnist. Would this type of law allow me to refuse to testify about things I learned while researching blog posts? If there was a law that applied only to journalists, there would need to be some way to determine who is a journalist. Our current anything-goes system is not perfect, but it's better than the alternatives.

To anticipate your next question: No, I don't like it when reporters go to jail or face heavy fines for refusing to give up what they consider confidential information. But I can't agree that they should have a different ability to conceal information than the rest of society.

Thanks for your question.

2 comments:

Mongoose said...

It's funny how your post turns around at the end. Reporters are just people with the same rights and responsibilities... Why then does it make a difference if it's a reporter sitting in jail for defying a court order?

People who have things to hide should just know better than to tell anyone but their lawyer and spiritual advisor, I think. Telling a reporter or telling a bar buddy, what's the difference, except that with the reporter you know he's gonna tell everybody else?

Cin said...

Sometimes, in a democratic society, I believe people have an obligation to expose corruption, abuse of civil/human rights, wrong-doing, etc. Sometimes the only safe and effective way to do this is to tell a reporter. (Sometimes telling the authorities would mean you would be ignored, other times you could lose your job, still other times you could lose your life.)

I concede reporters do not deserve special protection, but I also believe a reporter accepts certain responsibilities when he or she takes on the job. One of those responsibilities is being willing to rot in jail rather than expose a confidential source to serious harm.

Full disclosure: I am a former reporter, and I have some experience with the topic at hand.