The James Risen case in concerning and confusing. That the Supreme Court has refused to hear his case is frustrating. I don’t understand Attorney General Eric Holder’s position on the case. He said just last week that wouldn’t allow any reporter to go to jail for “doing their job,” which he considers to include protecting the identity of their sources. So, why are prosecutors trying to compel Risen to testify? What are they going to do if he refuses, as he has promised to do? If a judge finds Risen in contempt, as they are obligated to do, how is Eric Holder going to prevent Risen from going to jail?
Maybe some of you have answers to these questions, but I don’t.
On May 29th, Rep. Alan Grayson pushed through an amendment to the Commerce, Justice, Science, and Related Agencies Appropriations Act that “prohibits the Department of Justice from using funds to force journalists to testify about information or sources.” He will, of course, need the overall bill to pass and for his amendment to survive the reconciliation process with the Senate version. I think the law is clearly needed, although I don’t think this is the optimal way to protect a free press. A simple law stating that a reporter cannot be compelled to reveal a source would be better than having Congress dictate the behavior of prosecutors.
I’m willing to listen to arguments against a simple ban on forcing reporters to reveal their sources, and I suppose people can come up with ticking time-bomb scenarios. My position on that is that you don’t legalize torture and if you find yourself in a ticking time-bomb situation and feel that you need to torture, then you can plead your case to the courts and to the public. They’ll forgive you if you deserve forgiving. Likewise, if you present a reporter with a true ticking-bomb scenario, they’ll almost definitely reveal their source voluntarily. We don’t need to make a provision for such a scenario in law.
There’s another major issue with this: what’s a reporter?
That sounds like an idiotic question, but providing a legal definition of “reporter” is harder than it sounds, and it’s been a major issue with state-level shield laws. Most of them were written or are based on language from before the Internet and the collapse of the print media industry – and most legislators aren’t fluent in the new media landscape. But the old definitions don’t work any longer.
Is a reporter someone who is on the payroll of an accredited media organization? How about someone who’s working free lance for one? How about someone who’s on payroll of an online-only publication? A free-lancer for one? A volunteer for, say, a community radio station’s news department or a nonprofit group’s web site? What about someone who self-publishes and makes money at it? What about someone who breaks news but self-publishes and doesn’t get paid, like a blogger? Someone like that who uses Facebook? Twitter? How do you write the law to accommodate the new technologies and platforms of coming years?
Where do you draw the line between a reporter for the New York Times and someone, literally or figuratively, handing out flyers on the street?
Investigative journalism, done right, costs the kind of time and money that the publicly traded companies that dominate legacy media ownership simply won’t tolerate. Most traditional media organizations don’t do investigative journalism any longer, or have vastly cut their budgets for it and/or outsource it, or their “investigative” journalism is focused on consumer complaints or other things that don’t much matter (e.g., every local TV station’s “investigative reporting” on the shoe store that ripped off a little old lady).
The biggest scoops in recent years came from a guy who started as a self-published blogger (Greenwald) and a narcissist’s advocacy organization (Wikileaks). In that context, the question of who does or doesn’t get covered by a shield law becomes very important indeed.
Excellent points all around, Geov. I agree, the definition of “reporter” is completely different than it used to be thanks to blogs and internet media. Even beyond that, your example of handing fliers out in the street complicates this even more.
How about “a reporter is some dude who published classified information he gathered from a source.”
I’m with Boo. I think focusing on ‘reporter’ the noun leads us in unhelpful directions. I think maybe we need a ‘reportage’ shield law.
If you work for the NYT, that doesn’t mean that everything you do is shielded. If you’re a basement-dwelling cheetoh-eater, and you do reporting, you should be. For that act of reportage.
That’s a fair point. However, it would be a serious paradigm shift, as shield laws to date have all included definitions as to who (as well as or rather than what) is protected.
Constitutionally, given the First Amendment’s “freedom of the press,” it very much matters – reporters in matters like this have historically been treated differently under the law and in the courts than private citizens. As reporters and private citizens become increasingly indistinguishable, that paradigm is getting harder to maintain.
Of course the primary question is, who is a reporter?
In this day and age that is increasingly unclear. It can’t be just anyone with a blog. To merit shield protection the reporter must have sufficient influence or potential to influence public opinion such to be an actual counterbalance to the powers that be. And source must have believed the reporter had such influence before requesting anonymity.
I think it would be hard write a law prescriptive enough to work. A judge is always going to be required to qualify reporters and balance the powers.
But would help if there was a clear and consistent standard across the land for judges to use.
After we pass a law saying reporters don’t have to testify in criminal cases if they don’t want to, maybe we can pass a law saying clowns don’t have to wear seat belts so more clowns can fit in cars. Or maybe a law that lawyers can’t get speeding tickets…because ‘we are special’.
Being a reporter is no more important to society than being a plumber, in fact being a plumber is FAR more important to society!
Reporters made up a ‘right’ (right to protect sources) that has never existed. They should not get special rights that other citizens do not have.
Refuse to testify in a criminal case? Go to jail, just like every one else.
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The government, all branches, ultimately gets its power in this nation from the will of the people.
If the people are not informed they cannot fully and properly imposes their will – especially against abuses by the government.
That will in part is protected through constitutionally protected free speech. Free speech informs the public about abuse and incompetence.
The ability of the press to act with the people to impose the peoples’ will is a foundational principle.
Is it absolute and unchecked? Absolutely not. But the press can’t be so neutered as to be ineffective in moving governmental powers.
And that makes the press different from plumbers in this regard.
Freedom of the press is in the constitution, like it or not. I don’t recall the constitution mentioning plumbing, which is perhaps unfortunate.
You’re confusing ‘freedom of the press’, which has to do with the government silencing reporters by not letting them publish, with a reporters desire to protect a source. ‘Like it or not’, the constitution gives no right to not testify under oath, nor any protection for sources. That is what this post is actually about.
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Reporters’ rights to refuse to reveal sources to the courts or other law enforcement may not be in the Constitution, but the fact that all States except one have some form of legal protection for journalists provides us overwhelming evidence that journalist shield laws are considered constitutional by the Judiciary.
I’m generally reluctant to create new legal privileges without any evidence that, on balance, they benefit society.
It seems to me that everyone approaches these proposed laws from the perspective of the “good” reporter, out to inform society and enlighten the rest of us about some critical and heretofore unknown event. But what about the “bad” reporter who misrepresents a source, or whose source is just spewing misinformation or propaganda? Why is that reporter deserving of protection, and why do we think that it is better to shield all reporters, including the bad reporters, rather than let each fend for him- or herself? And, for that matter and as others have written, who exactly is a “reporter” these days?
I’m open to be persuaded otherwise, but so much of privilege law appears to be based on nothing more than pop pyschology about how the privileges at issue will benefit society without anything to really back them up.
Some reporters used to practice this thing called “ethics.” I know, it’s a funny-sounding word, isn’t it? Thounds like thomeone’s lisping.
Anyway, it used to be that if a reporter’s source burned the reporter by feeding the reporter disinformation, the reporter would name the source so that the source would take the heat for the lies that got out into the media.
Nowadays, reporters and more importantly their employers, value “access” above all other considerations. If a source flat-out lies to you and you print it, you just suck it up because otherwise you’ll lose access to a source. A source with a track record of lying to you, but a source nonetheless. Besides, with the never-ending news cycle the way it is, everyone will forget you published a lie within a couple-three days, because it will be on to the next thing.
These type of laws cut both ways.
There should be a law that protects people who are doing a public good, such as leaking information about the government doing something wrong. Regardless of classification/secret/whatever.
Giving cover to someone who has a fancy plastic badge who is a reporter isn’t the end-all way to protect a democracy from an over-reaching government. Especially if that “reporter” isn’t trying to protect democracy, but help subvert it.
How about we just expand whistleblower laws to cover reporters that way if wrong doing is done then they are protected and if they publish lies they’re not protected.
Whistleblowers who bring attention to the government or non-governmental agency breaking laws should be heralded by all of society and given a lifetime pension to live comfortably for the rest of their days.
Some reporter leaking the name of someone who shouldn’t be leaked, because they are trying to game political opposition should be tried in a court of law and suffer the consequences.
A lot of the time, the facts are going to matter a whole lot more than the employment status of the leaker.