Affording Bloggers Press Protection

Adam Penenberg writes a fine piece on the implications of the Valerie Plame scandal and the protections afforded to journalists at Time and the New York Times to keep their sources confidential and what that means for bloggers.

I may quibble with Adam’s observation that the issue is a First Amendment issue, when in fact it is the lack of a national press shield law that would allow journalists to keep anonymous sources anonymous, but I thought I’d weigh in on the more hairy issue of whether bloggers are journalists.

There is no official certification in existence for journalists. Journalists are not officially regulated and licensed the way physicians, attorneys and accountants are. One does not pass the equivalent of a bar exam to become a journalist. While there are professional associations of journalists that often extend credentials to reporters — the four Congressional Press Galleries review and grant press passes, not Congress — some entities such as the White House, approve the granting of credentials. Hence the recent fracas over a gay hooker gaining access without any “professional” oversight.

Journalists have resisted the official regulation of their ranks and should continue to do so. I also feel they should eschew the protection of the law when it comes to anonymous sources and take their chances on the stand with the rest of the citizenry. Anonymity is a slippery slope and should only be applied, in my opinion, to physician-patient privacy, client-attorney privilege, and pastor-congregant communications.

When reduced to their essence, bloggers are individuals who write and publish into a public medium. Whether they are acknowledged as journalists by the subjects they attempt to report and write about is a reputational problem, not one of credentials, professional standards, or other frameworks. If a blogger can develop a reputation for whatever salient elements define a “journalist” (objectivity, accuracy, literacy, and audience), and win credentials to a Presidential convention, well then good for them.

The crux of Adam’s thesis is:

But should bloggers receive protection under the law as regular reporters? Should they be able to maintain the confidentiality of their sources and not be forced to testify before grand juries or at trial?

Sadly, no, because contrary to conventional wisdom, journalists don’t have these protections. The press has been under assault from the legislative and judicial branches for the past 40 years. These constitutionally protected privileges have become essentially meaningless to reporters and, by extension, everyone else. Bloggers simply can’t count on the law to protect them from the law.

State shield laws have proliferated — there about 31 states with such laws — and calls to extend them to a federal level are mounting. Senator Dodd filed legislation last November to implement a shield law on a federal level.

I dissent. The issue is not a classic First Amendment freedom of speech argument, but the right to publically publish anonymous information and keep that information anonymous in the face of subpoena and other fishing expeditions by law enforcement. I believe that seeking legislative protections above and beyond the First Amendment is a concession of privilege by a free press to officialdom. Journalist should reject all attempts to classify, certify, and protect them by the legislative and judicials branches they are supposed to cover. Permitting elected and appointed officials to determine who is and isn’t a journalist is abhorrent.

The question, which Adam hit on the head, is the definition of who is, and who isn’t covered by a shield law. The definition generally comes down to an employee of a recognized news organization. Well, bloggers should get indignant right out of the box on that definition, and accept the fact that if they want to publish, bloviate, attack, or slander they have to take their chances with the so-called professionals.

Bill Ketter at the Lawrence Eagle-Tribune sums up my opposition to shield laws in this column.

He writes:

“In Washington, U.S. Sen. Christopher Dodd, D-Conn., has proposed a shield law. He feels that while reporters carry the burden to report news accurately, the government must ensure them the freedom to report the truth without fear of imprisonment.

A noble purpose indeed.

But one of our fears is the government. What it gives it can also take away. And while politicians can help us, as they’re apparently trying to do now, they can also hurt us the next time they get mad at the press.

They can, that is, if we let them by conceding that the First Amendment isn’t all it is cracked up to be. Relying on something other than the language of our founding fathers could end up costing us dearly in this risky business of publishing news some people don’t want out.

There is cause for concern. Ever since the U.S. Supreme Court ruled in 1972 that reporters have no right to refuse to give information to grand juries, there have been several efforts to break the bond of confidentiality between reporters and their sources. This has the indirect effect of censorship by scaring off those news sources who won’t risk possible disclosure.

But even most shield laws make exceptions when disclosure is necessary to avoid violation of a person’s constitutional rights or a miscarriage of justice, such as a wrongful conviction. Or there is absolutely no other means of obtaining the information in a case that has an overwhelming public issue at stake.

These exceptions strike at the heart of press freedom. The minute we agree that the press is free except for this remote eventuality or that one, we’ve started giving away this little piece of the First Amendment or that one. The result might be that, over time, the legislative effort to bolster the rights of reporters could end up diminishing them.

Better that we rely on the First Amendment, and fight for reporter’s privilege — and the public’s right to know — on a case-by-case basis.”

Author: David Churbuck

Cape Codder with an itch to write