To Shield or Not to Shield? Times Story Hurts Cause

Originally posted: July 22, 2006

The New York Times’ publication of the Bush administration’s secret program to monitor international terrorist banking transactions could have an unintended side effect. It could lead to the collapse of congressional efforts to create a federal shield law for reporters. Shield laws are designed to protect journalists from being forced by the government to disclose confidential sources.

Such confidential sources were used in reporting the financial surveillance story. President Bush called the revelation “disgraceful.” Times executive editor Bill Keller said the story was in “the public interest.” Either way, this incident is sure to be Exhibit A when the proposed shield legislation is argued in Congress.

The Free Flow of Information Act was introduced in the Senate last spring by Sen. Richard Lugar of Indiana. The measure is being guided in the House by Rep. Mike Pence of Indiana. The act would “shield” reporters from having to disclose confidential sources in court, except in specific circumstances related to national security or in preventing a terrorist act.

The theory is that these protections are essential in maintaining a free and aggressive press that can effectively monitor the government. Allowing journalists to protect the confidentiality of sources, so goes the argument, will encourage inside sources to come forward with information about government misbehavior. From a philosophic standpoint, this all sounds good.

When it comes to cold practicality, however, shield laws are controversial and confusing. Critics of the press wonder why journalists should be protected from disclosing sources in court when other citizens would not. Can it be left up to the judgment of journalists to decide which sensitive stories are disseminated in “the public interest” with no eventual accountability? What would keep journalists from fabricating stories and hiding behind shield laws if dragged into court?

The proposed legislation basically defines a journalist as a person who is employed by a “professional” media outlet, apparently leaving out bloggers, pamphleteers and many other mass communicators. This approach smacks of press exceptionalism, the notion that journalists should get special treatment and privileges not available to regular citizens. Given the current public sentiment toward the press, this special treatment might be hard to justify.

Press exceptionalism raises constitutional questions, since the First Amendment makes no demand that journalists be “professional” or that only recognized media outlets receivepress freedoms. The amendment guarantees every citizen the same freedom of expression.

Shield law proponents say protecting journalists from forced testimony just allows reporters to be on the same plane as medical doctors and lawyers in terms of confidentiality. But journalists aren’t the same as doctors and lawyers. Those professionals have extensive formal education and are certified by the state. They protect private people on private matters. Journalists are not certified, have no required education, and gather information specifically to disseminate broadly.

A national survey last year by University of Connecticut researchers showed 59 percent of citizens believe journalists should not be forced to disclose confidential sources. Fifty-three percent, however, said stories with unnamed sources shouldn’t be published, and 89 percent believe the credibility of such stories should be questioned when they are run. More than 30 states have shield protections for journalists dealing with state issues.

In an election year, it will be difficult for most congressmen to support shield legislation. The public perception is that such a law would further embolden the press to use confidential sources. The public is angry at The Times for publishing the financial surveillance story — a result that likely wasn’t considered sufficiently by The Times and now diminishes aspects for shield law legislation.

The Times’ editor defended the decision by saying basically that this story was no big deal and terrorists already knew their finances were being monitored. If running the story, however, ultimately dooms shield legislation, the journalistic community should ask The Times if that particular story was worth costing reporters shield protection for future stories of greater “public interest” significance.

Jeffrey M. McCall is a professor of communication at DePauw University

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