Media: Federal shield law for Journalists Posted by: McQ
on Thursday, June 29, 2006
Theodore Olson attempts to make the case for a shield law for journalists at a federal level in the Washington Post today. Citing the fact that 49 states and the District of Columbia all have laws protecting the confidentiality of reporter's sources, he can't imagine why the same isn't true at the federal level.
Journalists reporting on high-profile legal or political controversies cannot function effectively without offering some measure of confidentiality to their sources. Their ability to do so yields substantial benefits to the public in the form of stories that might otherwise never be written about corruption, misfeasance and abuse of power. A person with information about wrongdoing is often vulnerable to retaliation if exposed as an informant.
Notice the one glaring area he seems to have forgotten. National security. The several states rarely have anything to protect in terms of state or national secrets. So corruption, misfeasance and abuse of power are about all a good journalist is going to uncover at a state level. Not so on a national level, and that is where the argument must be made. What Olson wants, without saying it, is the ability to protect all sources, even those who betray national secrets.
Unfortunately, the rules regarding what reporters must disclose, and under what circumstances, remain a hopelessly muddled mess. Ask any reporter today, or his publisher, or his publisher's lawyer, whether a reporter must testify about his sources and you will get a litany of ambiguity. The answer may depend on which court issued the subpoena or the predilections of the judge before whom the reporter is summoned. State courts have their rules and federal courts have another set of standards that differ from one part of the country to another. That means that the journalist cannot tell sources whether promises of confidentiality have any teeth. And that, in turn, means that information vital to the public concerning the integrity of government, or of the national pastime, may never see the light of day.
It should be apparent to anyone who compares state and federal courts and their differing standards that those two levels of courts have different focuses as well. And because, at the federal level, entirely different issues are extant that aren't apparent at the state level, those different sets of standards are a necessity, not some arbitrary difference.
What the media may determine is "vital information" to the public at a state level would warrant no qualms at all about ensuring journalistic confidentiality. As mentioned, disclosure of the information the source might provide is highly unlikely to jeopardized national security at a state level. Not so at a national level.
Again, while I think it is important that freedom of the press be preserved, the media has a responsibility to exercise that right in a responsible manner. Keeping the status quo at a federal level pertaining to journalistic confidentiality seems to me to be an excellent way to force this upon them if they won't exercise such responsibility willingly. Additionally, it gives the federal government the legal ability to go after leakers who jeopardize national security.
That is critical ability in my estimation. Disclosing budget shenanigans at a state level is not the same as disclosing a secret clandestine operation in a hostile country, as an example. While one does indeed provide information "vital to the public", the other jeopardizes lives and programs which may be just as vital to that same public.
Saying no to a federal shield law will continue to require the media and potential leakers to think twice about disclosing or publishing certain things. And that is as it should be. Anyone who decides to leak information, especially classified information, had better decide that they are willing to take the consequences of being identified. It better be about ethics and not politics if they decide to do so. Or said another way, they better be right to disclose what they disclose.
That will, in my estimation, keep the proper brake in place and force the media and the informant to consider their responsibilities to the public they've sworn to serve and inform.