The Wake

Government has an obligation not to inhibit the collection and dissemination of news…. I’m convinced that if reporters should ever lose the right to protect the confidentiality of their sources then serious investigative reporting will simply dry up. The kind of resourceful, probing journalism that first exposed most of the serious scandals, corruption and injustice in our nation’s history would simply disappear…. And let me tell you, reading about one’s failings in the daily papers is one of the privileges of high office in this free country of ours.” -Nelson Rockefeller, 1972.

“Hogwash.” -James Magnuson

Journalists are outraged. The bellowing of ink-stained wretches are reverberating in every corner of this great land of ours. This may come as no surprise to some. Journalists are in the business of selling outrage, and have been ever since the days of William Randolph Hearst. Actually, I’m probably selling that short unless there was a sage chiseling angry diatribes against some minor inconvenience in mastodon hunting at the beginning of civilization. In this case, however, the outrage is genuine. The fourth branch is mad, and is simply not going to take it anymore. The object of this outrage is a relatively new trend in jurisprudence; one that forces journalists to give up confidential sources. In response, members of the media have been calling for a federal shield law. In fact, it’s hard to find competing views because the media has provided a rather united front on this issue. Fortunately, I am stepping into the gap to argue that a federal shield law is neither necessary nor beneficial.

There are currently shield laws in over 30 states and the District of Columbia. Shield laws differ in their scope, but usually offer protection for journalists who do not wish to be forced by courts to surrender the names of confidential sources, documents pertaining to investigations, or to testify about some act or crime they’ve witnessed. There is no federal shield law, which has led to some confusion regarding jurisdiction, as in situations when the source is in a protected state and the journalist is not. Journalists point to rape shield laws, as well as various attorney-client privilege and doctor-patient confidentiality agreements as the template for what the standard should be for them. Shield laws vary, but the basic concept is that privileged information can be withheld unless the information is highly relevant to the case, a compelling need exists for the information, and it cannot be obtained through other means.

There have been several public examples of journalists jailed for refusing to reveal their sources in the last few months, one example being Judith Miller. Whether she should be the poster child is another matter, given that she wasted away in jail to protect a source who had expressly waived his right to anonymity before her sentence in the pokey began, and had even talked to the prosecutor. Some would claim that Miller was cutting illicit deals with the prosecutor to protect other sources while giving up the original. Others think her a martyr. Still others would perhaps see her as a publicity hound. An anonymous source informs me that James Magnuson’s opinion is option three–publicity hound. However those that glory in her martyrdom are not few and their protest was vociferous.

These proponents of a federal shield law have several good points. First they claim that the press is in essence the shadowy “fourth branch” of government, and thus has responsibility and privileges not accorded the normal citizenry. They must seek out truth and inform the populace for a republic to work. I concur. Journalists also claim that sources would be far less willing to put their necks out if they were not guaranteed anonymity. Therefore, less investigative work would be done into government, business, and other powerful interests because there would be fewer sources willing to risk it. Journalists also don’t like the fact that without shield laws they can be placed on the investigative end of the law. They claim that the shield law (or laws, because not all of those in favor of shield laws wish it to be national) protects journalism, an important pillar of our society, which serves to keep the government in check.

The problem is most information requested from journalists is highly relevant, needed, and cannot be obtained any other way. I see much of the clamoring for shield laws as simply another example of journalistic hubris and rank arrogance. The “fourth pillar” aspect is compelling, or make that — was compelling in, oh, the 1940’s or so. Anyone who thinks that today’s media is unbiased in any way is only getting the news they want to hear. And more and more journalists admit to it. Some mourn the loss of the objective newsman, giving the country what it needs to hear, a dose of truth to combat the propaganda of the government and elites. Problem is, those same people yearn for the old days when hot dogs cost a nickel, when everyone was friendlier, life was less complicated, and everyone was happy. I suspect those good old days never existed, especially not when it came to journalistic integrity. Therefore, a shield law would not be a good idea, because it would protect journalists who love nothing better than to throw out wild rumors on the basis of a low level source, or no source at all if you’re Dan Rather. At some point, there needs to be responsibility taken for what one says and writes. At my undergraduate institution, there was no speech code, but neither was there anonymous speech allowed either. You could say what you want, but you had to live with the consequences. I dislike government as much as the next guy (being one of an endangered species, the libertarians). I like the concept of journalism even more than the next guy, unless that guy happens to be a journalist. The idea of journalism taking a pre-eminent post in our culture is dying. With the rise of bloggers, the monolith that used to be media is fading for better or for worse. It is far less of an issue of keeping sources anonymous anymore, because news is so much harder to keep quiet. Under the old media, no one really knew about JFK’s Vikings’ love boat-esque activities. With people like Matt Drudge, you can find out anything you need to know about the third rib from the bottom on the skeleton in anyone’s closet. That’s not necessarily a good thing, but it is a new thing. The amount of information available is growing all the time. The media is no longer a monolith, and thus no longer needs monolithic protection. Personally, I do not think that there are any compelling constitutional reasons to enact a federal shield law. Nor do I find the arguments for shield laws in general particularly cogent. Perhaps a shield law was necessary once. That is no longer the case.

James Magnuson is a University of Minnesota law student and welcomes comments at .