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Shielding Reporters
The New York Times reports that a deal on a federal shield law is near:
The Obama administration, leading Senate Democrats and a coalition of news organizations have reached tentative agreement on legislation providing greater protections against fine or imprisonment to reporters who refuse to identify confidential sources.
....Protection under the so-called shield law would also be extended to unpaid bloggers engaged in gathering and disseminating news.
....In civil cases, the litigants seeking to force reporters to testify would first have to exhaust all other means of obtaining the information. Even then, the judge would apply a “balancing test,” and the burden would be on the information seekers to show by a “preponderance of the evidence” why their need for the testimony outweighed the public’s interest in news gathering.
Ordinary criminal cases, as in prosecutors’ effort to find out who leaked grand jury information about professional athletes’ steroid use to The San Francisco Chronicle, would work the same way, except that the balancing test would be heavily tilted in favor of prosecutors....Most cases involving disclosure of classified information would work the same way as criminal cases.
This is....better than nothing, I suppose. But most of the high-profile trials of the past few years that involved confidential sources have been criminal cases, and it doesn't sound as if this compromise proposal provides very much real-world protection in these cases. But news organizations support it, so maybe it's better than it sounds. I'll be curious to hear some media lawyers weigh in on it.
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Yeah, but there's all sorts of low-profile civil cases you don't see.
It's a better balancing, but in general, I'm not really for a shield law. But if there is, it better support unpaid actors as well!
This leaves me wondering if the value to having the information become public - like in pollution cases or wrongful prosecution of whistleblowers - is to be considered as well as the damage to news gathering. There seems no public value, for instance, to violate the security of an undercover agent unless that agent was engaged in wrongdoing; but there is high value of public knowledge of secret pollution sources or misdoings by covert employers.
shield law should be named Judy Miller Shield law
Why do reporters deserve a shield any more than all other average non-journalist citizens when they are de facto complicit in perpetrating a criminal cover up by keeping sources anonymous who have, for example, violated the law by revealing classified information?
Yes, legit whistleblowers are protected by reporters who keep such sources anonymous, but so are liars like vice presidents and their staffers who unlawfully expose the identities of covert CIA agents.
Risk of injury is a hazard faced daily by public servant policemen and firemen. Why should reporters expect to operate free of risk of imprisonment in the performance of their job, if they are serious about serving the public interest? If they can't handle the risk, they aren't going to do the job properly.
The history of the country is filled with people - civil rights activists, suffragettes, anti-war protesters, etc - who willfully subjected themselves to risk of arrest in order to make the country a better place. It was in significant part due to their incarceration that the public was moved to make legislative change to make things better. A reporter willing to go to jail rather calls attention to an issue. Eliminating that risk effectively trivializes otherwise important revelations, because such matters won't be recognized as all that noteworthy on account.
A reporter shield law will shield much more public corruption than it will expose.
Shield Laws
The proper test is simple.
If the reporter is reporting authorized information, his promise of confidentiality is worth nothing in a court of law. If a CEO or Vice-President of the United States talks to a reporter not for attribution, the CEO or Cheney is trying to get out their story without being held legitimately accountable . Similar for the flacks who are authorized by their bosses.
A whistleblower, in contrast, is likely trying to avoid illegitimate accountability: firing, blackballing, or the like. The leak is quite probably unauthorized for illegitimate reasons. These folk should be protected from legal process.
Of course, this test has nothing to do with what the media wants--to get nice scoops from Dickie C to show their peers that they have more juice than lesser sycophants.
incentivizing bad journalism
The problem I have with shield laws is that so little confidential source reporting concerns matters of important public interest. Should Woodward and Bernstein have had a reporters' shield to protect against Nixon Administration retaliation? Absolutely!
But what about Judy Miller? Robert Novak in the Plame case? Or the thousands of "journalists" reporting what is essentially celebrity gossip?
The problem with shield laws is that there is simply way too much unnamed source journalism out there that is not only not serving the public interest but is harming it. I'd be much more comfortable with shield laws if journalists were acting more responsibly.