PressEthic

In an earlier blog, I wrote generally about the risks faced by journalists if they are unable to protect confidential sources. I concluded that being forced to reveal sources is tantamount to censorship. Currently there is discussion regarding a Federal Shield Law that would help journalists protect confidential sources in certain circumstances. However I am not sure that this Law would be the right the solution to the problem.

The Federal Shield Law, also known as the The Free Flow of Information Act, can be found here. David W. Neuendorf summizes that the intent of the law is to “make it possible for courts to subpoena journalists' sources under certain urgent conditions, while protecting the journalists from prosecution for refusing to reveal their sources under any other conditions.”

After attending the 'Blogs and the Future of News' Panel last night, it became apparent that a Federal Shield Law raises a number of concerns for the profession of journalism.

The current drafting of the potential Shield Law defines a journalist by their profession, not by their acts as a journalist. As it stands the law would protect basically anyone working for a journalism company, but not those who act as citizen journalists (i.e. bloggers).

Most panelists agreed that defining journalists by their profession would be tantamount to the government licensing journalists. Jonah Goldberg at the National Review Online says a Shield Law would have the effect of forming a journalist’s guild.

Goldberg is adverse to a journalists’ guild for economic reasons. He cites research that concludes:

In states where a license is required to become, say, a hairdresser, salaries are higher by some 10 to 20 percent. This is partly because the licensing — the fees, the extra training, etc. — becomes a barrier to entry to others seeking employment. In states where strict state licensing isn't required, job growth is 20 percent higher.

Goldberg is also concerned that licensing journalists would give them greater protection, relative to other citizens, than is stipulated in the First Amendment.

Goldberg says "the First Amendment is not a blanket protection to conceal crimes, that nowhere in case law or in the Constitution itself has such a right been established.” Instead it was “intended to keep political speech free”. Goldberg’s argument is essentially that a journalist has no more constitutional right to conceal information regarding a crime, than any other citizen.

With this in mind, panelists Jay Rosen and Jeff Jarvis argued that any shield law should define a journalist by their actions, not by their profession. Jarvis’s argument can be found on his blog, Buzzmachine. In this way journalists would have no greater rights than a citizen acting as a journalist.

However both Goldberg and panelist John Podhoretz argue that a shield law that defined a journalist as anyone involved in an act of journalism would be dangerously broad and open to exploitation. Goldberg says:

If everybody can be a journalist simply by pecking away at a keyboard, then tens of millions of bloggers, newsletter writers and coupon-clipper weekly editors are journalists. If that's the case, then such a sweeping right is unenforceable and dangerous.

In other words one could be privy to information regarding a crime and could just have to begin writing a blog to avoid subpoena. This would afford the nascent blogger protection under such an all-encompassing shield law.

In the current climate, important sources may be reluctant to come forward for fear that journalists cannot protect them from prosecution. This could curtail a journalist’s ability to seek the truth. However, after looking at the various sides to the debate, it seems a potential Federal Shield Law is a divisive solution to this problem.