Here and There

The reason I’m calling this entry “Like a broken clock” is Bob Dole’s op-ed in The New York Times on August 16, 2005 (I would link to said article, but The Times doesn’t make that easy). Dole called for a federal shield law in that column. I’m implying that, like a broken clock, conservatives like Dole are correct from time to time.

The outrage over mere talk of establishing a federal reporter’s shield law reminds me a bit of the outrage over same-sex marriage: they’re equally outrageous reactions that betray a deeper paranoia.

Opponents of journalists’ shield laws are quick to point out that journalists should be afforded no privilege higher than that of ordinary american citizens. If that were the case (and countless court decisions agree), no whistle blower in their right mind would ever dare talk to a Bob Woodward, let alone a Brian Williams. But then, people who fight a federal shield law are many of the same characters who still believe Watergate was a mistake — only in that it drove a “great president” from office.

As of now, the shield laws that exist in most states protect reporters from having to disclose information obtained confidentially when that information does not imply complicity in an illegal act on the reporter’s part.

The law in California, which is technically an immunity from contempt, not a privilege, states that: A publisher, editor, reporter, … cannot be adjudged in contempt by a judicial, legislative, administrative body, … for refusing to disclose … the source of any information procured while so connected or employed for publication in a newspaper, magazine, or other periodical publication, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public. (emphases added, and ellipses used in place of legalese)

Such a shield law would most likely have kept Judith Miller out of jail.

And a series of U.S. Supreme Court cases set the stage for what can happen at the federal level.
In Branzburg v. Hayes (1972), the court ruled that journalists can be called to testify before state and federal grand juries. But in order to force them to do so, the government had to show three things: (1) cause to believe a crime had been committed; (2) that the information they hope to get from the reporter cannot be obtained elsewhere; and (3) a compelling court interest in the information.

While the case concerned a reporter who witnessed a crime, much like the Valerie Plame investigation, Branzburg speaks to the court’s best attempts to define where privilege ends and obligation to testify begins.

Journalists are still held accountable for their actions, for example, if news is gathered in an illegal manner (established by the Supreme Court in Cohen v. Cowles Media Co. in 1991).

Oh, and this topic reminds me of gay marriage in the following way: I’m still scratching my head trying to figure out how shield laws, like same-sex marriage, in any way harms its opponents. I would still love to challenge the leading advocates of bans of and constitutional amendments against same-sex marriage to cite one simple way their rights are infringed by granting same-sex couples the right to marry.

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