Walla Walla Union-Bulletin — Disturbing legal trend poses real threat to good journalism across the nation

• By: ASNE staff
• On: 08/07/2007 16:26:04
• In: Shield law editorials

Walla Walla (Wash.) Union-Bulletin
Updated Aug. 4, 2007

By U-B Editor Rick Doyle

Two recent situations show a disturbing trend among federal investigators and judges to force journalists to turn over information. In one case, a freelance video journalist and blogger was jailed for refusing to hand over unaired footage from a July 2005 protest of the G-8 economic summit.

The other case involves two San Francisco Chronicle reporters who are appealing a federal judge's order to jail them until they agree to testify about who leaked them grand jury testimony. The testimony was from Barry Bonds and other athletes in a steroids investigation.

The message is loud and clear. Do what the government tells you to do or else.

While 31 states have some form of shield law (Washington state does not) so journalists can do their jobs, there is no federal shield law.

This is not a good thing for journalists. But, more importantly, it is not a good thing for the public.

There are media companies and journalists who will stand on their principles and inform the public, regardless of the consequences. But there are other companies and journalists who will back away from stories rather than risk being hauled into court or to jail.

Who suffers when the public is uninformed? We all do.

Without someone willing to bring situations to light, things stay hidden and fester.

We can cite examples even before the founding of this country, when in 1734 a colonial jury acquitted John Peter Zenger after he refused to reveal sources for reports of abuses by a British governor.

Would this nation be better off if people had never heard of Watergate, the Pentagon Papers, Iran-Contra or any of the stories in which journalists brought important information to the public's attention?

How many of these situations would have been revealed if the sources of the information feared the journalists would turn them over to authorities or in some way expose them to danger?

The current cases may not rise to that prominence, but they show how easy it would be to keep the public in the dark if journalists are jailed for doing their jobs.

Times like these always renew efforts to pass a federal shield law. But as simple as that solution sounds, it is fraught with peril and complexities.

First, it puts journalists in an awkward position of needing the help of government officials while also needing to keep sufficient distance to not be seen as beholden to those they report on.

The beauty of the American system is it includes checks and balances. The executive, legislative and judicial branches of government are designed to keep any branch from overstepping its bounds. The media, often referred to as the Fourth Estate, has assumed the responsibility for being the watchdog of this process and keeping the public in whose name government functions aware of what transpires.

Journalists are not part of the government. They are not part of law enforcement. They are not participants.

They are independent observers working to keep the public informed.

Certainly the media have the same rights as any business or group to lobby for changes in laws. The difference is the media are the ones who make sure the lobbying of others doesn’t cross the line into influence-peddling, bribes or blackmail. A delicate balancing act at best when the media become part of the process they cover.

Second, and perhaps the most difficult issue, is trying to define who qualifies as a journalist.

It would be easy to define a journalist as a person working for a newspaper, magazine or radio station. But then what about a person whose work is published on a media Web site? Wouldn't that person be a journalist? What if the work is published on his/her Web site?

If a person writing on a Web site qualifies a journalist, what about a blogger? Or a freelance writer? Or a nonfiction book author? Or a student journalist? Or a documentary filmmaker? Or any person who gathers information with the intention of passing it on to others?

Suddenly, almost everyone could be considered a journalist.

In trying to narrow the field, the conversation often drifts to definitions such as a “person trained in journalism.” However, this could eliminate anyone who didn't go to college or who didn't graduate with a journalism degree.

Some people suggest journalists should have to pass a test and be licensed like a doctor, lawyer or plumber.

Under this scenario, you would have government officials deciding who can and can’t be journalists. In other words, they could decide who could report on them. That is a relationship journalists would find intolerable, and it would be a clear violation of the First Amendment.

So I throw the question to you: How do you craft a law that would define “journalist” and that would allow journalists to gather and disseminate information without becoming an extension of the government or law enforcement? How can the law make clear that journalists are the emissaries of the public, operating in behalf of the public's right to know?

Until we can answer those questions, journalists will have to engage in acts of civil disobedience by refusing to become a part of the government system. And they must be willing to accept the consequences for the greater good.