Why Journalists Don't Need (and Shouldn't Want) a Shield Law

Categories: Media, Schutze

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Forgive me if I see not just some irony but a couple red flags in the new right-wing support for a federal shield law for reporters. Oh, now that it's a way to defend Fox News and get back at Obama, well, sure, we need a shield law.

Count me out. As somebody who has been a reporter all his life, I'm choosy about the skirts I dive under for protection.

Bill Keller, former executive editor of The New York Times, has a thoughtful op-ed about it in the Times today. He recites some of the serious misgivings that serious people in the business have had about shield laws in the past, then comes down somewhere in the middle, favoring a law that might best be described as a shield with holes in it.

I'm for no shield.

The best recent piece to read, if you want to know why, was by Julian Assange, the Wikileaks guy. It ran Sunday, also in the Times, and it wasn't about shield laws at all. It was basically a review of a new book by two top Google officials called The New Digital Age, all about the ways in which digital technology in general and, yeah, well, Google in particular, are going to make human beings a happier, wealthier, wiser species. I grew up in Detroit, so I'm sort of immune personally to the "What's good for General Motors" argument, but apparently, if one judges by the jacket blurbs, this book is being taken very seriously, maybe because reading it is like surfing for cool new devices.

Anyway, Assange's op-ed in the Times was, I thought, a brilliant take-down of the whole suggestion that we can ever make life better by ceding individual liberty and privacy to central authority and then asking the authority to compensate us with comfort and safety. Assange concludes: "This book is a balefully seminal work in which neither author has the language to see, much less to express, the titanic centralizing evil they are constructing."

The trick, in understanding the basic argument for a shield law, is understanding that shield laws turn journalists into the bellwethers who lead everybody else into that final suffocating embrace. For one thing, under the law today, there is no such thing as a journalist, in the sense of a distinct class of persons who qualify for a special status in the law. Freedom of the press is about expression itself, not the people who make money at it. A shield law would create such a class.

Now all of a sudden journalism becomes a true "profession," and the journalism schools of the world achieve their institutional erotic dream. Maybe they can double tuitions.
But for real reporting to work, the last thing reporters should be, the very last thing they should imagine themselves to be, is some kind of priesthood whose status and very definition are an endowment bestowed on them by government. Screw government. Screw everybody else, as a matter of fact.

A shield law does the same thing the so-called open records and freedom of information laws have done: put the whole reporting process back in the hands of government and lawyers. All of a sudden reporters are busy filling out forms instead of being about the real business of reporting, which involves getting the people with information drunk and, even though I certainly never did it myself, sleeping with them if necessary.

You figure out who's got an incentive to dish, and then you figure out how to get them to do it. Not only do we not need a law for that, we do not want a law for that. Reporters belong in back alleys, not front offices.

What about the thing of getting caught, the whole punishment business, assuming you, your editors, your publisher and their lawyers are jointly witless enough to publish something that's illegal to publish but not worth going to jail for? Yes, indeed, that is the chance you take, because getting caught and punished is the chance all Americans take for breaking the law. If the bet's not worth it, don't make the bet.

What about being forced to give up your sources? Well, we all have choices there. What did you promise your sources? I tell mine, if it comes down to the courthouse and me being behind bars, in that event I'm going to give you up. I lose good stories that way.
But what if I tell my source I will never give him up no matter what? Fine. Then my choices are three: 1) perjure myself and risk prison, 2) go straight to jail anyway for contempt or 3) screw the guy and go back on my word.

Those are the real rules. There's not a way to fiddle those rules without fiddling liberty itself. Reporters are not worth that sacrifice. They can get the same story other messier riskier ways. I thought that was why we liked this job.

The closer reporters drift to the status of a special class, the more they become embeds, isolated among the people they cover, even wearing their uniforms and inevitably craving their approval because that's how human nature works. Instead they belong far outside the campfire ring, like feared hairy things lurking in the forest gloom. That's who steals the meat, not some dude with a laminated ID chained to his neck.

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34 comments
pak152
pak152

the call for shield laws  is an attempt to block out bloggers. Many say that bloggers aren't journalists, and yet the First Amendment does not define the "press" 

the only shield law needed is the First Amendment

gordonhilgers
gordonhilgers

When I think of the necessity of a journalist needing to protect his/her sources I typically focus on two incidents involving journalists who had no shield laws to protect them: the story of NYTimes journalist Judith Miller going to jail in 2005 for refusing to cooperate with an inquest revolving around the "outing" of CIA operative Valerie Plame after her husband, Joseph Wilson, challenged the Bush/Cheney junta over the issue of Nigerian yellowcake and the administration's assertion that Nigeria had sold the uranium ore to Sadaam Hussein. 

Miller at the time proclaimed that if a journalist cannot protect the anonymity of a source there can be no free press at all.  A federal judge had ordered her to give-up the information she reputedly had.  A fellow reporter at Time Magazine, Matthew Cooper, had also been threatened by the judge but was reprieved when his source, Karl Rove, gave him permission to squeal. 

Miller's source?  Scooter Libby, one of Cheney's men, apparently had "outed" Plame as some kind of punishment for her husband's challenge to Cheney's dumb assertions.  Miller is also famous for her 2002-03 reports regarding the "probability" that Saddam Hussein had weapons of mass destruction.  She is now actively defending  Jana Miller, the Fox News reporter who somehow obtained Aurora shooter James Holmes' notebook, and is also working for, well, Newsmax. 

The second incident involves the 10-year-long campaign by the ever-brave reporters and editors of the Munich Post to reveal to the world the real Adolph Hitler.  Hitler dubbed the journalists "The Poison Kitchen" and declared the social democratic-leaning newspaper "Socialists", and though today they are credited with not only being a thorn in Hitler's side their most important contribution is revealing to the world for the first time Hitler's "Final Solution".  Their reporting, however, went unheeded in Germany, and only months after Hitler's ascension to Chancellor, and right after he declared the national emergency that effectively ended democracy in Germany, he had the reporters and editors of The Munich Post rounded-up and imprisoned.

Does the claim of "Socialism" in media ring a bell?  It should.  And does Miller's possible cooperation with the Bush/Cheney junta's hubris in lying the United States into its very first pre-emptive war sound like an abuse of journalistic integrity? 

It does to me.  Here in Dallas, journalists have never had the whip come down on them, but as journalist Sinclair Lewis once warned, not only will Fascism come to America wrapped in the American flag, but that, yes, it can happen here. 

BO105
BO105

Yo well, ah think if you say you going ta do somethin` an' don' do it, dat's trustworthiness or somethin`

bmarvel
bmarvel

Most sensible thing you've written in ages.

In 50 years in journalism I never thought I needed a shield law. I know of two journalists who went to prison rather than reveal their sources. We took up a collection to support them and their families. This was, I think, the ethical and moral alternative to the shield law.

I realize many -- perhaps most -- journalists will disagree with this. That's not because they long to be running-dog lackeys of whoever happens to be in power. It's for the very human and understandable reason that they want to do their jobs, they want to be watch dogs, but they are reluctant to put their careers and families in jeopardy. For a few journalists over the years this has been a painful reality. But that's not an argument for journalists or anybody else to retreat behind a shield law.

 

MikeWestEast
MikeWestEast

Shield laws are a European idea where everyone gets put in government sanctioned guilds that "protect" me. Europeans also have their governments pay funds to churches for the "right" religions. It is why Germany is all over Scientology. Scientology is no different there than elsewhere. The Germans have a hard time paying euros to them from tax funds. We watch tax exempt but I can see difference between government paying money to X vs. government getting less money from X. With a shield laws, we have to have a court decide if that Wikileaks putz Mr. Brown, literally operating out of his Mom's basement, is a "real" journalist. The Founding Fathers would not sign off on an idea that protected the big newspaper, but maybe not the pamphleteer. Their idea has lasted over 200 years. The government cannot stop you from publishing except in some life and death situations. Once you publish though, you better put on a flak jacket because the protection ended the minute you sent out the last notice.

everlastingphelps
everlastingphelps topcommenter

Hear hear.  

Add in that they would include all journalists... to get it passed.  Then, in a few years, there would be a few bureaus that are determined to be "not serious".  Maybe it's the Jordanian bureau of CNN.  Maybe it's a Dem administration and it's Fox News.  Maybe it's a Rep administration and it's MSNBC.  Maybe they wait for a Rathergate type mistake and talk about "a breach of the public's trust in journalism" and pop CBS.  Give it another decade, and it doesn't matter, because all the ones that are left will be zealously guarding their "credentials" by kowtowing to whatever the Official Party Line is of the day.

RTGolden1
RTGolden1 topcommenter

Great article Jim.  I agree with you 100% (which, I'll admit, is quite worrisome).  This type of law doesn't put reporters in the 'protected class' they dream of, but puts them in a controlled class.  Shield laws are a way of turning a Constitutional Right into a government granted privilege.  Any right leaning, true conservative should be as firmly against these shield laws as they are against stricter gun control and background checks.   We have got to, finally, draw a line under the Bill of Rights and say 'No More'.  The Second Amendment is my 'Right to Carry' permit.  The First Amendment should be the Journalists' 'Right to Print' permit (or, the Occupiers 'Right to Assemble' permit, the Christian/Muslim/Buddhist/Jew/etc's Right to 'Pray anywhere and anytime they damn well please' permit).  Along those lines, the Fourth Amendment should stand as a woman's 'right to abort' permit, being secure in her person to do so.  The tricky part comes when government intrudes upon those rights you are against someone having.  Many commentors here laud and magnify attempts to increase gun control laws, but rail against government intrusion on other parts of the BOR.  It's ONE Bill of Rights, and they're ALL individual rights.  To acquiesce to one of them getting restricted, hammered or altered is to concede all of them.

Tim.Covington
Tim.Covington

I liked the way I heard one person put it. "The only shield law I need is the first amendment. ANything else would be an infringement on somebody's rights."

ozonelarryb
ozonelarryb

1 Assange is correct- power corrupts, so ceding to any bureaucracy is a path to perdition.

2 Your 'priesthood' prophecy is, already here. Look at the incestuous relationship between the "official" press and officialdom in any jurisdiction; from Dallas to DC. Reorters and commentators pitch softballs so as not to imperil their insider status on the cock...TAIL circuit. And what do WE get from it? Crap information, drooling apologias for corruption, fawning toadying for highways in floodplains and unjust wars.

But don't get me wrong, I'm not bitter.

russell.allison1
russell.allison1

Would this article have had a different take had this been a republican administration at its center? 

holmantx
holmantx topcommenter

A shield law would allow government to regulate the Internet.

Only card-carrying "journalists" would be protected from the Espionage Act of 1917. 

The rest of us would be key-logged, botted, detained.

James080
James080 topcommenter

Partisan support for rules of the type ebb and flow depending on which party holds executive power. The fact that someone in the Obama administration is feeding classified information  FOX NEWS doesn't seem a compelling enough reason to scribe a new batch of laws protecting only journalists (or whatever actually constitutes a "journalist" in the age of the internet).

Rix1
Rix1

"Forgive me if I see not just some irony but a couple red flags in the new right-wing support for a federal shield law for reporters."

Don't you mean the shield law that Pres. Obama supports?

chad
chad

Yeah and it seems to me any shield given could be taken away. Lets say you get your "protected by the shield law" card and go on with your career then eventually dig up something really serious. Could a lawyer come up with some technicality and say "oh wait, actually you don't qualify" then, since you've been working under the assumption this "shield" will protect you, you're completely exposed and vulnerable.

IMHO no protection is the best protection in this case.


JimSX
JimSX topcommenter

What do you think about sleeping with sources? I offer to take naps with them every once in a while, but they never take me up on it.

gordonhilgers
gordonhilgers

@MikeWestEast Interesting to note that Thomas Paine himself, after publishing a snarling expose of all the holes in the Holy Bible, "The Age of Reason", was imprisoned.  In Great Britain.  By the British.  Who didn't like him anyway.  Apparently, to go so far as to endanger "the divine right of kings" by showing the world what a mess the Bible actually is...was a matter of state security. 

Also interesting to note that when Jean Jacques Rousseau, the French political philosopher whose seminal work, "The Social Contract", is one of the ur-documents of American democracy, caught the ire of the king of France, he had to emigrate because his ideas were stirring the coffee a little too much.  He fled to Switzerland, and the last pages of his autobiography, "The Confessions", have Rousseau locked and barred in his little house as Swiss citizens pelted his home with rocks. 

As for Wikileaks, I find it highly amusing that Assange, in managing to embarrass the U.S. government more than anything else, is now under effective house arrest in Britain.  The U.S. military's iron-fisted treatment of Bradley Manning, the alleged leaker, is perhaps the most shameful act of militancy I've ever seen.  Manning is three years guilty before he's been found so by a court of law. 

That gives me pause.  It should give you pause too. 

gordonhilgers
gordonhilgers

@ozonelarryb  I wholeheartedly agree--especially here in Dallas.  The business community, the mass media and local government are like three shells in a shell game here in Dallas.  The best example of this happened in the Nineties when a Federal judge position was left open for several years...at least until a guy with "a resume", also known as "the down-low A-OK from the business community", walked in and BAM!  We had a "Dumbocrat" as judge!  It was amazing to watch The Dallas Morning News salivating over this, mainly because the good ol' boy was such a well-known good ol' boy in this area that the "Iron Dome" over Dallas' uber-secret control of the very engines of justice could not be penetrated at all. 

I'd sit on a park bench and literally laugh my ass off.  Far from the eyes of Washington, the Old Boss/New Boss was still The Same Old/New Boss as ever.  Lapdogs, stenographers, shills, robo-pens, whatever you wanna call them, they're here they are they are. 

bmarvel
bmarvel

@russell.allison1 Probably not. Jim can be goofy at tmes -- this time is not on e of them -- but he's consistent.

JimSX
JimSX topcommenter

@holmantx 

... and those cards will be handed out like Christmas cards to the media government can control.

JimSX
JimSX topcommenter

@chad 

Exactly. Every reporter needs a little embroidered motto in a gold frame above his desk saying, "They're out to get me."

ozonelarryb
ozonelarryb

How DO u stay awake in Council mtgs?

bmarvel
bmarvel

@JimSX None ever offered. --oh! Was I supposed to offer?

russell.allison1
russell.allison1

@JimSX @russell.allison1 I just find it disappointing-we have high level administration officials probing news affiliates, IRS officials pleading the 5th when asked about something the IRS proports to be "clerical mishaps"; all of this from an administration that promised to bring to government a level of transparency never before seen in previous administrations.  That I see very little pointing out that the administrtation that promised "Hope and Change" and has offered neither is a glaring failure of the press as a whole. 

Present company excepted, of course....

holmantx
holmantx topcommenter

@JimSX @holmantx

you got that right.  And that means power to politicians.  The players in the game.

Fox has the courts.  That's what they are for and I wouldn't want to be Holder when the fur flies on this one.  He used the Espionage Act of 1917 to obtain a warrant.  Jesus Palomino.

And the judge he convinced to sign the damn thing is already saying he was misled on probable cause.  No shit.  

Though it is a crime for someone to give classified material to a person who does not have clearance to see it, it is not a crime for the person to receive it if that person is a journalist.  You already have an absolute, constitutionally protected right to seek news of material interest to the public wherever that news may be.

Any modification to that right must be in the form of a limitation, regulating it down to a "conditional" right.

a license.

gordonhilgers
gordonhilgers

@holmantx Regarding Obama's apparently "sovietesque" search for leaks, I also find it interesting that the Holder Justice Department pointedly asked the AP to hold the story about the mole inside Al Qaeda in Yemen until the mole was safe, and to report the story only after the administration announcement of the operation in Yemen.  The AP went ahead and published the story, resulting in what Holder claims was one of the most dangerous security leaks in American history.  Most assuredly, the U.S. has definitely lost an intelligence advantage in Yemen, and while I do sympathize with the AP's outrage over the Justice Department's behavior in trying to ferret-out a leak, I can't help but wonder whatever happened to the big "united front against terrorism".

Apparently, the AP couldn't wait because it had a big scoop on its hands.  "A scoop of what?" is a question we should all ask ourselves.  The politicization of journalism is an issue I'll leave to Fox News and the News Corporation's tendency to wiretap people like the Queen of England simply to sell papers.   

gordonhilgers
gordonhilgers

@holmantx@gordonhilgersFrom a  2007 U.S. Justice Department brief to the U.S. Supreme Court:

""Petitioners allege that Novak's July 14, 2003 column publicly disclosed Ms. Wilson's covert CIA employment and that that disclosure 'destroyed her cover as a classified CIA employee.' Petitioners, however, allege that Novak's source was Armitage, and do not allege that any of the three defendants against whom Mr. Wilson presses his First Amendment claim-Cheney, Rove, and Libby-caused that column to be published. In the absence of factual allegations that Mr. Wilson's alleged injury from the public disclosure of his wife's CIA employment is 'fairly traceable' to alleged conduct by Cheney, Rove, or Libby, petitioners have failed to establish Article III jurisdiction over Mr. Wilson's First Amendment claim."

The Supreme Court refused to hear the case. 

holmantx
holmantx topcommenter

@gordonhilgers @holmantx

Kinda screws up your narrative, doesn't it?  

Richard Lee Armitage (born April 26, 1945) was a distinguished naval officer, a Republican politician who was appointed the 13th United States Deputy Secretary of State at the State Department, serving from 2001 to 2005 under George W. Bush.  He has acknowledged that he publicly released the classified information that Valerie Plame Wilson was a secret agent for the CIA, triggering the Plame Affair, though he has said it was inadvertent.

He was a neoconservative.  Bush was duped but fired the people who cherry-picked the intel to get us in Iraq.

However, that is no excuse.  Only an explanation.  

Just like President Obama.  

He let his ideologues run wild.  Only in this case, they have no interest in foreign affairs (see: Benghazi incompetence).  Their impetus is using government agencies, the bureaucracy, to destroy their enemies.

But the ending will be the same.  Like Nixon, Obama is trying to protect them in hopes the people who voted for him will overlook what they did.  

However, using the IRS to attack groups you politically disagree with was fatal.

And Holder attacking the AP and the reporter was absolutely insane.  

Very Sovietesque.

RTGolden1
RTGolden1 topcommenter

@russell.allison1 @JimSX To be fair, TOTAL OBSCURITY is a level of transparency, just at the other end of the spectrum from what we were expecting....

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