Shield law protecting bloggers a good first step

The New York Times reported yesterday that there has been some progess this week on discussion over a federal shield law that would protect journalists from having to reveal their sources. The big movement, as noted in the story, is that the protection would be expanded to cover “citizen journalists” who report the news via publications such as blogs.

Shield laws do a lot of good but can at the same time be a scary thing to lovers of free speech (for background, see Wikipedia on shield laws). To this point, we have them only on a state-by-state basis, and they allow reporters freedom to cite sources off-the-record in order to have the information needed to report important news to our readers. Watergate, obviously, is the most notable example of a journalist using this technique to break important news and some states (including my home state of California) have recognized that this is an important way to get information out that serves the public good.

Although some states have shield laws, the push for a federal shield law has been going on for years. One reason is that the state laws only cover journalists in cases that are under state jurisdiction. The minute the feds get involved, as Josh Wolf learned back in 2006, those protections don’t exist. Just a couple years ago the court reaffirmed Branzburg v. Hayes, which said the First Amendment doesn’t give journalists the right to protect their sources. As a result of this, Wolf (a blogger journalist) went to jail to protect a source and ended up serving more time for this offense than any journalist in U.S. history.

Scholars and media professionals alike have wrung their hands over shield laws for years. They do provide journalists with a tool to break important news in their communities, but in some ways this has made anonymous sourcing so easy that it at times feels like a crutch for lazy reporters. Also, for those of us who argue for transparency of method, anonymous sourcing is anathema to the process. At best, it should be used sparingly.

On the other hand, there is a real fear that decisions like Branzburg tie the hands of journalists and are a chilling effect on free speech. Journalists, at their best, are a check on government by offering rigorous and independent coverage of our public institutions. This is one of the arguments for expanding shield-law coverage to the federal level, and it’s something Barack Obama campaigned on last year. If journalists do not have the right to protect sources, negative coverage of government policy could be stifled by the threat of a court order. This obviously is not good for a democracy that depends on free exchange of ideas in order to function properly.

Despite the good a federal shield law could bring, there are a couple big worries.

First, is it fair to grant expanded First Amendment protections to journalists that a typical citizen would not enjoy? Branzburg makes clear that any rights granted by a shield law are not covered by the First Amendment. Thus this would be granting more free speech rights to journalists. Journalists work under the freedoms granted by the First Amendment, and we have fought for centuries to make sure free speech is maintained for all. Do we really want to create a special class just because we report the news?

This remains my biggest criticism of shield laws in general. With the advent of the read-write Web we are beginning to dismantle what Dan Gillmor calls the “journalistic priesthood,” a model in which the the journalist is elevated above the people and serves as a mediator between people and power. Now that we’re finally making some headway on purging that elevated-journalist mentality for the industry, I don’t like that we we can legislate ways to bring it back.

The second worry, though, is more pernicious. By granting special freedoms to a “journalist,” the most logical question in any court action then becomes “who is a journalist?” and, by extension, “who is not a journalist?” State shield laws have been either silent on the matter or constricting in their definitions. Consider how we thought of journalists 20 years ago compared to today, when any person with a blog can do real reporting.

So the question is who decides? Do we want the government, via Congress or the courts, to decide? Should journalists professionalize and decide for themselves, much like physicians and lawyers do, so that card-carrying members of a national journalist association are protected? I don’t like government being involved, but I don’t want journalists restricting non-traditional reporters either.

This is why I’m at least a little bit happy how some of the federal shield law negotiations are going. If we’re going to have one (and it’s no sure thing), I at least am glad to see that bloggers and citizen journalists are being considered in the process. It’s an acknowledgement by those in power that the industry and the very definition of journalist is changing before our eyes. The concern remains that once it is legislated it must be updated for further societal change, but I’m hopeful that as of now it looks like people like Josh Wolf would be covered under this new policy.

Again, this doesn’t mean I like the idea of shield laws. I’m pretty skeptical they do much good and would rather see Branzburg overturned than have a law in place that defines “journalist” for us. But if we are going to have one (and there are lots of professionals and scholars in my field who think it’s a good idea) then I want to see it be as broad as possible. The early negotiations of this bill did not include citizen journalists; even if I don’t like the movement itself, at the very least it’s moving in the right direction – toward broad defintions and an acknowledgement that the world is changing.