The need for a federal shield law – a law that would protect journalists from being forced to disclose who their anonymous sources are – is very real.
Courts have generally upheld the idea that there must be padding between the justice system and journalism. Typically reporters are not called to court to reveal their anonymous sources; however, several recent and high-profile cases show that this padding is flimsy. Fortunately, federal support for more straightforward protections for journalists has been simmering with the Free Flow of Information Act of 2007.
Reporters were subpoenaed in the Valerie Plame investigation and in the Barry Bonds steroid scandal. Courts – as outlined in a landmark 1972 Supreme Court case – are suggested only to subpoena reporters when there is a dire threat to national security. Clearly, the court system isn’t respecting this suggestion when the story only involves baseball.
Still, in the years following the 1972 Branzburg v. Hayes Supreme Court decision – which ruled that courts ultimately have the right to subpoena any reporter – many lower courts re-interpreted it, since the court’s opinion stated that journalists could not operate “without some protection for seeking out the news, (because otherwise) freedom of the press could be eviscerated.” First Amendment lawyers often interpret the circuit courts’ rulings to be affirmations of the existence of a “qualified reportorial privilege.”
Currently, there are 31 states, including Oregon, with shield laws, which protect journalists from subpoenas. Four states have marginal journalistic protections and 17 have none. Calls for a national shield law have often died in congressional committees.
But this time, the Free Flow of Information Act of 2007 must pass. Under the wording of the legislation, journalists would be protected from divulging their sources except in cases where there is an imminent threat to national security. Still, it remains a controversial idea. Adding to the controversy is an amendment to the legislation that would protect bloggers along with traditional print journalists.
This is a step in the right direction. A few years ago, traditional reporters and editors were wary of the journalistic worth of bloggers, but now a number of professional associations, including the Newspaper Association of America and the Reporters Committee for Freedom of the Press, have applauded the inclusion of online journalists in the legislation. Nonetheless, there is no bright-line test to distinguish who is a journalist online and who isn’t.
If history has taught us anything, it’s that we must quietly reserve optimism for a broad-based national shield law. American journalists have traditionally benefited from a level of freedom unheard of in other countries, which should remain a point of pride. However, according to Reporters Without Borders, press freedom worsened exponentially in 2006, with the imprisonment of a number of journalists, including blogger Josh Wolf, who refused to release video footage of a demonstration to police.
Press freedom should not deteriorate any further.
As journalism continues to make its inevitable crawl online, thus evaporating pre-existing barriers to publishing, bloggers deserve the same protections as traditional journalists. A national shield law should go forward, in order to make a demonstrable stand in favor of across-the-board press freedom.