In TIME magazine this week, Norman Pearlstine, the eidtor-in-chief, bemoans the fact that three reporters (including one from TIME) were compelled to testify in the Scooter Libby case. Judith Miller became the most famous of the trio when she went to jail instead of testifying, but ended up testifying anyway. Pearlstine wraps up the piece by calling for a federal shield law to protect journalists in the future.
Thirty-one states now have shield laws, and for a concise argument as to why journalists love them, see this article from the Associated Press.
As a longtime journalist and former newspaper editor, I have absolutely no love for shield laws. I think they damage reporters’ credibility with the reading public, and they make for lazy reporting. In my mind, reporters are nothing more than ordinary citizens with notebooks; publishers nothing more than ordinary citizens who own printing presses. Neither the presses nor the notebooks earn them any special rights.
Agreed. In general, the only people who enjoy testimonial immunity are those having some special, societally-valued, relationship with a defendant or other party – the priest-penitent exemption, or spousal immunity. I know journos often love to consider themselves some sort of secular clerisy (the pompous “Fourth Estate” comes to mind), but I hardly think scribbling for a newspaper (any more than my own job) rises to the level of a spousal or religious trust.
A couple of months ago, I asked a similar question, after hearing about a blogger who had gone to jail rather then turn over a video. Here
I’m still waffling about this. In an ideal world, I can see where being able to collect info, without the informant worrying about either the law or subject of the investigation finding out who spilled the beans, would open up secrets that might otherwise never see the light of day. Would Watergate have turned out differently if Deep Throat’s identity had been known from day one?
In the real world, I’m afraid that blanket immunity goes way to far. There is just to much opportunity for abuse.
Former radio, college and small-town newspaper reporter here. I strongly support a Federal shield law for the excellent reasons stated in the AP article. Yes, it’s reporters and publishers who’d be claiming the privilege, but ultimately for the public good. But it should be invoked as seldom as possible. Press freedom will only continue to erode if the press is seen as pompous, irresponsible, self-indulgent and/or sensationalistic (as it all too often is nowadays).
When I was a cub reporter, I tried to use an anonymous source to expose incompetence in the local sheriff’s office. My publisher told me, “No story worth publishing is known by just one person. Find someone else who knows, get them to come forward, and get it on the record.” I worked my butt off for a week, talking to the county commissioners, a local district court judge and the three witnesses who had seen the on-duty deputy passed out drunk in a spare cell. I finally talked one of the witnesses, a cleaning lady, into going on the record. When she did, with assurances from two commissioners and a district court judge that she would not suffer retribution, the other two witnesses came forward as well. We published everybody’s name. That was the day I lost my taste for anonymous sources.
The key here is “Any story worth publishing.” Does anybody but Patrick Fitzgerald give a damn that Scooter Libby lied (gasps of astonishment and horror) to politically motivated investigators? I don’t think so. No, the only reason for doing that story is the economic dogfight mainstream media find themselves in these days. Congress doesn’t need to pass any law for the sake of economic expedience. If the Scooter Libby story was truly worth doing, there were others who could be persuaded to come forward with information. If nobody else knows about it, it’s time to make some hard decisions about whether it’s a worthy story.
What sheild law protected Woodstein? None. If a court had ordered them to reveal the identity of Deep Throat, they would have been legally obligated to do so. And if a court ordered them to reveal Mark Felt’s name, what social ill would then follow?
They would have the option of refusing to answer, being held in contempt, and going to jail–if they thought it was important enough. Or they could turn over Felt’s name. Either way, so what? They had no more right to keep Felt’s name a secret than I would if I were in a similar circumstance. Freedom of the press and freedom of speech applies to everyone equally, not to some particular government-regulated class of people.
Felt was a Justice Department official. The only shield he needed was the one he carried in his jacket pocket. And Deep Throat didn’t solve anything for Woodward and Bernstein. He just told them to “follow the money.” They did the hard work of tracking down the checks from CREEP, they sat in the Library of Congress and waded through thousands of check-out slips, they knocked on the doors of grand jury witnesses. they played chess with the highest officials in Washington, and they won. That is how investigative journalism is done.
I agree with your publisher, since relying on one anonymous source is often a way to get away with printing bullshit- but that doesn’t mean anonymous sources don’t have any value as a way to steer reporters toward people who will comment. In a perfect world, they wouldn’t be used for anything else.
Sure, but if anonymous sources steer you to public sources, there’s no need for a law to shield the anonymous source, since the existance of the anonymous source is never revealed. The journalist can point to the public sources in any legal investigation.
What bugs me about shield laws is that an awful lot of the time what we are talking about is a reporter finding someone willing to breach a confidientiality obligation (often a legal one) in order to provide information for a story. See, e.g., the recent instance of two SF Chronicle reporters who were leaked grand jury testimony by a lawyer in the case. So, reporters should be legality entitled to promise confidentiality to people who breach confidentiality obligations? What about the damage, for example, caused to the grand jury system? Or, in Plame’s case, national security?
In most cases, leaks are technically a violation of office rules, some kind of regulation, or even laws. That’s why they’re done anonymously, to avoid what would be technically lawful repercussions – disciplinary actions, firing or even prosecution. Originally, such leaking was done because the leaker believed it would right a wrong – lots of evil can be hidden behind confidentiality regulations. Unfortunately, the practice has come to include leaks for less-than-noble purposes – revenge, mostly, or to sabatoge inter-office rivals, and so on. This presents the reporter with a moral dilemma – whether to report and possibly serve someone’s harmful self-interest, or not report and possibly fail to serve the public’s best interest. I don’t think any editor would disagree that journalists, under pressure to get stories that will grab audience attention, have increasingly suppressed such questions. Those are the problems **Elendil’s Heir ** referred to in his post.
For example, Mark Felt was motivated, in large part, by disappointment that he had been passed over to head the FBI. In your view, does this mean he should or should not be protected by a shield law?
It’s been a long time since I read “All the President’s Men,” so I don’t recall how much Woodward and Bernstein used Deep Throat as an attributed source. My recollection is that his biggest contribution was putting the reporters on the trail of the CREEP funds being used for the Watergate break-in. If he was never attributed, then he wouldn’t be covered by any shield law. In any event, no one ever tried to compel the WashPost to reveal its sources, and Felt leaked the info in the absence of any shield law. And as I’ve said, Felt was in the perfect position to thwart any attempt by the Nixon Administration to force the Post to reveal sources. Watergate just isn’t a good example to use when arguing shield laws.