Commentary
Senators Now Say Shield Law Should Cover Bloggers
- by Wendy Davis , Staff Writer @wendyndavis, November 2, 2009
Late last week, Sens. Arlen Specter (D-Pa.) and Charles Schumer (D-N.Y.) said they had crafted a bill that would apply to people engaged in journalism -- or reporting and disseminating news -- even if they weren't on staff.
The new proposal would cover people who report and write news, provided they intend from the beginning to "disseminate to the public news or information."
That's a notable improvement from September, when the Senate Judiciary Committee endorsed a proposal that would have applied only to people on the payroll of a news organization -- a requirement that would have left many bloggers, book authors and other freelancers without protection.
If enacted, the shield law would allow journalists to maintain the confidentiality of their sources under some (but not all) circumstances.
Almost all states already give reporters some ability to protect the identity of their sources -- either because the states have shield laws or because courts have ruled that reporters have the right to maintain their sources' confidentiality.
But the lack of a national shield law means that federal judges can -- and do -- order journalists jailed for refusing to divulge their sources.
Shield laws encourage whistle-blowers to come forward by providing assurances that they can disclose important information to a journalist and still keep their identity secret from the government. Those assurances shouldn't depend on whether the journalist is a staff reporter for The New York Times, a book author or a freelancer who occasionally blogs for the local weekly paper.
Wendy Davis is a Senior Writer at MediaPost. You can reach Wendy at wdavis@mediapost.com
I've never accepted the argument that whistle-blowers have only two options: remaining quiet or talking to a journalist. This false dichotomy makes for a very weak argument. The whistle-blower, for example, can bypass the journalist by mailing the evidence, anonymously, directly to any number of police officials, regulatory agencies, or even judges. With enough stamps, someone will eventually have to something about the alleged scandal, if only to protect themselves from the anonymous whistle-blower who can subsequently include (with future mailings) a list of those previously sent the information. Bottom line: no journalists are necessary with this third option and I'm sure there are many more options.
Also, secrets are not one-size-fits-all. Little secrets do need shield laws but big secrets need a judge who can jail the journalist whose big secret is a bigger threat to society when unlinked to a crime than some tiny principle supported by a false dichotomy.
Very unfortunately, any law enforcement agency can ignore a whisle blowers complaint for a variety of reasons at various levels. There are a pitiful number of people in those positions with a pitiable amount of financial resources to open cases. However, journalists/reporters have a different view as in a story. Sometimes, it does launch a larger fulfilled career, but the motivation is the story. Even then, the illegal activities may not stop since reporters have become more limited in their financial resources to pursue.
"Little secrets do need shield laws but big secrets need a judge who can jail the journalist whose big secret is a bigger threat to society when unlinked to a crime than some tiny principle supported by a false dichotomy." - D. Ferguson
Thereby guaranteeing that, after that jailing, no one in their right mind will ever again divulge a "big secret" to an unshielded journalist?
Secrets may come in various sizes, but principles ARE "one size fits all". How many small secrets divulged to a journalist have resulted in ultimately huge stories? It's happened so often it's now cliche'.
As long as we remain a nation whose laws are often shaped by precedent, there is no such thing as a "small principle".