Los Angeles Times – Don't just shield 'pro' journalists

Los Angeles Times
Oct. 20, 2007

THE House of Representatives this week took a long step toward protecting the American people's access to a free press when it overwhelmingly approved passage of a federal shield law that would prevent journalists from being compelled to revea

Los Angeles Times
Oct. 20, 2007

THE House of Representatives this week took a long step toward protecting the American people's access to a free press when it overwhelmingly approved passage of a federal shield law that would prevent journalists from being compelled to reveal confidential sources.

The Free Flow of Information Act had bipartisan sponsors -- Rep. Mike Pence (R-Ind.) and Rep. Rick Boucher (D-Va.) -- and 176 Republicans joined 222 Democrats in supporting its passage 398-21. The measure now goes to the Senate, whose Judiciary Committee recently approved its own version of the so-called shield laws. Thirty-two states, including California, and the District of Columbia already have such statutes.

While the House bill is an important advance in the long struggle to deprive government prosecutors of their ability to intimidate reporters and editors with fines and jail terms, it's an inadequate remedy to the current problem. Essentially, it would take the Justice Department's current views on when it's appropriate to demand that reporters give up their sources, and write them into law -- though the discretionary power on when to make the demand would be shifted from the executive branch to federal judges. They could compel journalists to cooperate with prosecutors in reasonable circumstance -- such as preventing imminent death or an act of terrorism -- and under far more dubious circumstances. An amendment to the House bill, for example, would allow a judge to compel testimony concerning someone who has "revealed a trade secret."

The American Civil Liberties Union's evaluation of the Free Flow of Information Act pointed to still other deficiencies: "Amendments to the bill added exceptions that will limit the public's access to information even in cases where there is no tangible threat to national security or public safety," the ACLU wrote. "Under an adopted amendment offered by Rep. Lamar Smith (R-Texas), a court may consider alleged harm to national security even in cases where the information provided to a journalist is not 'properly classified.' The bill also gives the administration some discretion to decide who qualifies for the privilege. Under the exceptions added to the bill, the administration can arbitrarily designate a journalist as a 'terrorist' based solely on unsubstantiated evidence of their alleged association and speech."

Even so, President Bush already has said he will veto the House bill if it comes to his desk, though the measure's margin of victory was enough to override a veto. Testifying before the Senate, Atty. Gen-designate Michael B. Mukasey said he, too, opposes the measure. Later in his testimony, Mukasey also refused to accept the idea that waterboarding is torture. None of the senators being particularly quick, he was not asked where he stood on waterboarding reporters.

ALL other considerations aside, passage of a federal shield law inevitably will involve an issue that all parties to the process -- particularly news organizations -- ought to approach with the greatest deliberation and care possible: the question of who is a journalist?

This is not a discussion any prudent person should want to have. The whole notion of letting the government define a journalist is abhorrent to anyone who values the 1st Amendment. There is, however, no way to adopt a federal shield law without having the Congress do just that. Other privileges are relatively easy to extend. The confidentiality of the priest-penitent relationship, for example, covers anyone ordained by the Catholic Church. A lawyer is somebody admitted to the bar. Psychotherapists are licensed by the state.

Journalists are not licensed or credentialed. They do not necessarily share a common education nor are they required to conduct themselves according to a universally accepted ethical canon.

They simply are people who do journalism.

In that respect, the proposed shield law the Senate Judiciary Committee approved 15-2 earlier this month is markedly superior to the House bill, because it envisions extension of the privilege to all those "engaged in journalism" and leaves it at that.

"Journalism," insofar as most of us have understood it, is nothing more than collecting information or commenting on it. You could add the phrase "with the intention of disseminating it to others," though even that seems too restrictive.

The House version, on the other hand, defines a journalist as "a person who regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public for a substantial portion of the person's livelihood or for substantial financial gain."

In other words, 398 members of the House of Representatives want a federal shield law that is means tested.

The problem is that the 1st Amendment does not protect remunerative speech, nor accurate speech, nor sensible speech, nor responsible speech nor even decent speech. It simply protects speech and leaves all other distinctions to a free people, who may or may not choose to listen, anyway.

It's hard to imagine any American court accepting the notion that our Constitution protects only the speech of those who make money from it. And if this shield is not being erected to further the intentions of the 1st Amendment, then what, precisely, is its purpose?

Well, one consequence -- perhaps unintended by those who wrote the bill but not unwelcome among many who work for traditional news organizations -- is that enactment of the House bill would exclude from protection nearly all the bloggers and so-called "citizen journalists" who have proliferated across the Internet in recent years. There's no need to engage the quality or utility of their work here. Suffice to say that any legal protection that shields newspaper reporters and television broadcasters but excludes this new digital press is swimming against the tide of history in a silly -- perhaps, even wicked -- fashion. In fact, you can make a fairly compelling argument that the speech exercised by the bloggers and citizen journalists is probably much closer to that the Framers intended to protect than what you found on the front page of this newspaper today. Not even the far-sighted Madison could have envisioned anything like an investigative reporter.

Yes, that means that a federal shield law needs to treat the Los Angeles Times' White House correspondent the same way it treats some guy tapping fitfully on his laptop in a shed in the Ozarks and trying to persuade his three readers that nothing will be right in this country until we go back on the gold standard and everybody weighs the same.

That's the thing about freedom: It's inconvenient and protecting it usually is a messy business.