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Federal ‘Shield Law’ Threatens Press Freedom

The walls around ancient Troy were impregnable, but things did not work out too well for the Trojans. American journalists would do well to remember that.

The First Amendment is the nearly impregnable wall that guards our most basic freedoms: to speak, to write, and to worship as we wish, or not at all. The Amendment is expressed as an absolute, because it demands that “Congress shall make no law” abridging those freedoms, which belong to everyone.

Now, as carelessly as the Trojans who accepted that beautiful statue of a horse, many journalists are inviting lawmakers inside the walls. It is a mistake.

The modern horse is a federal “shield law” to give journalists, at least in some situations, the right to refuse to identify confidential sources or to reveal certain information in court. Shield laws already exist in 36 states and the District of Columbia. The degree of protection varies from state to state, but no shield law is applicable in federal courts, which are the focus of the legislation now before the U.S. Senate.

Ordinary citizens must testify truthfully in court when they hold information relevant to a government investigation, and journalists are no exception, according to Supreme Court precedent. In the 1972 case of Branzburg v. Hayes, the Court ruled that Branzburg, a Louisville, Ky., journalist, did not have the right to withhold from a grand jury information he had gathered while researching an article on hashish users.

Journalists argue that, if the Constitution does not give them the right to silence, then statutory law should. Without such protection, they are forced to choose between defying the courts, which can lead to imprisonment for contempt, or putting their sources in legal, professional or even physical jeopardy.

In 2006, I wrote about the travesty in which only Judith Miller of The New York Times served any jail time in connection with the identification of Valerie Plame as an agent of the Central Intelligence Agency. While Miller, who never even identified Plame in her stories, sat in jail, other reporters accepted confidentiality “waivers” (extracted en masse by investigators from government employees who feared losing their jobs) and complied with federal subpoenas. Miller rejected the waivers because she believed they were coerced. But after 85 days in jail, even she gave in.

Shield laws are supposed to protect journalists who find themselves in Miller’s situation. The problem with such legislation is that it creates a special government-recognized class of citizens called “journalists” and applies the law’s protections only to them. This is a big step toward government licensing of journalists. And if the government has the power to approve someone’s status as a journalist, it has the power to withhold or rescind that status — which can mean having the power to muzzle critics.

Overt, heavy-handed government retaliation against uncooperative reporters is not the biggest risk, though it is not inconceivable, either. The Nixon administration, you may recall, included some reporters on its “enemies list.” The biggest threat is of self-censorship by reporters who need a license to keep their jobs.

The Times spent a lot of money on legal fees to defend Miller (only to cut her loose later, for the sin of not being sufficiently critical of Bush administration intelligence claims leading up to the Iraq war.) Employers that want to avoid those expenses are likely to employ only accredited journalists. This effectively would give the government the power to decide who may work in the field.

Journalists also alienate themselves from the public when they claim special privileges and status, especially when they base such claims on their role as the public’s watchdog. The Constitutional guarantee of a free press does not belong only to those who own presses, or to those who get a paycheck from those owners. The freedom to publish is an adjunct of the freedom to speak, and everyone is free to speak. The difference nowadays is that technology has made the freedom to publish a reality, rather than a theoretical ideal, for everyone.

Who will decide who is, or is not, a journalist? Did I become a journalist when I enrolled in journalism school at college, or when I joined the student paper there? Or did that status wait until I got my first summer job on a non-campus paper? Or when I graduated? Or when The Associated Press hired me?

Assuming I was a journalist at those times, did I stop being one when I left The AP? Did I become a journalist again when I later wrote a book, or when I started Sentinel, our firm’s quarterly newsletter? Or when I started writing this daily opinion column, otherwise known as a blog, about four months ago? If this blog makes me a journalist, what does your blog make you?

Some New York lawmakers are trying to extend that state’s protections for journalists into the blogosphere, but the law would still only apply to those who derive “gain or livelihood” from newsgathering. Where does that leave student journalists or anyone who cannot find a corporate sponsor?

Every job has its hazards, and journalism has many. Journalists frequently risk being shot or kidnapped to bring the public information from dangerous places. When they agree to receive confidential information, they risk having to defy a subpoena and suffer the consequences.

Journalists who take these risks know what they are doing, and these reporters usually will be the first to point out that the dangers they face are small compared to those that their sources often confront. This is why so many journalists have fought so hard to protect those who place their trust in someone with only a notebook and a camera.

But a shield law that defines “journalists” rather than “journalism” as worthy of protection is a bigger threat to press freedom than the occasional imprisonment of reporters who protect their sources. Either everybody’s journalism deserves deference in the courts, or nobody’s does. Because neither courts nor legislatures are going to give everyone carte blanche to defy subpoenas, we need respectable reporters like Judith Miller to continue being willing to go to jail in defense of their sources and of the principles that matter to all of us.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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