When you read, over the next few weeks (or months), about the “Shield Law” (aka the “Free Flow of Information Act”) you will undoubtedly find people claiming that the First Amendment already protects journalists1, and we don’t need anything more. They’re wrong.
First of all, the first amendment protects the freedom of speech and of the press from congress… but the courts have ruled several times that it does not protect anyone from having to testify in court when they’re issued a subpoena. Not even journalists or reporters testifying against their sources. I haven’t made up my own mind completely about this particular law, but I can say this: given the rulings from the federal courts, we need a federal shield law to protect the press’ ability to have anonymous sources.
This is what Shield Laws do: “at their most basic, shield laws protect journalists from being compelled to reveal the names of confidential sources. Beyond that, they may cover any pertinent information related to the production of a story, such as notes, outtakes, drafts, or audio and video recordings. These protections — also known as reporters’ privilege — are essential to safeguarding press freedom2.” Many people assert that this is the “freedom of the press” that the first amendment was meant to protect. However, in the federal courts, that freedom has been eroded by court rulings dating as far back as 1971’s Branzburg v. Hayes.
All states except Wyoming now have shield laws or protections derived from court rulings3. But the federal government, backed by the Supreme Court, still insists that reporters can be forced to testify against their sources in a federal trial4. That is why congress (the Senate, specifically) is reconsidering a federal shield law: not to abridge the freedom of speech or of the press, but to protect it.
Having said all of that, there are major problems with shield laws (and in particular, a federal shield law).
The first problem is that a law must define what it’s going to protect, and if the definition isn’t right, a law could limit the definition of the press. This law is a little better than it was (now that Charles Schumer’s amendment has been adopted), and it’s been left open-ended, so that it will protect anyone that a federal judge deems appropriate… but it will still not protect organizations like WikiLeaks5. The problem can be summed up by quoting Schumer: “there are people who write and do real journalism, in different ways than we’re used to. They should not be excluded from this bill.” He’s right: the shield law should protect all people who are “engaged in journalism” and not just people who’ve worked for “media outlets.” This law tries to do that, but I’m not sure if it’s succeeded or not, because it still has this definition of a journalist:
Someone employed by or in contract with a media outlet for at least one year within the last 20 years or three months within the last five years; someone with a substantial track record of freelancing in the last five years; or a student journalist.
The second problem is that this law explicitly states situations in which journalists will be compelled to reveal their sources. The good news is that this will clear up when journalists can offer their sources anonymity and when they can’t. The bad news is that it means that certain types of reporting are only going to happen via websites like wikileaks where the media outlet is outside the jurisdiction of American courts. The biggest case for that is national security: the bottom line is that if the government says national security is at stake, journalists would have no secrets. That’s no surprise given our current surveillance state, but it may surprise you to know that there are some journalist groups supporting the new law as well as groups who are rather opposed to the current version.
- None Found