A Shield for Democracy: The Importance in Protecting Journalists from Courts

Getting one’s morning paper is a dangerously mundane process.

Hobbling to the front door still in pajamas, millions of Americans see newspapers as an unchangeable part of our lives; as benign as our alarm clocks or cups of coffee. What many of us don’t see is the fragility of this institution that we take for granted. Between the lines of print, we can’t see Jim Taricani, who spent six months in house arrest for not revealing his source in a bribing scandal story. We don’t connect the situation of Josh Wolf — a video blogger nearing his sixth month in prison for an anti-G8 summit video — or Mark Fainaru-Wada and Lance Williams, San Francisco Chronicle reporters looking at 18 months in prison for protecting their sources in a steroid-dealing ring story. Unbeknown to many Americans, there is a war raging today between an overzealous judiciary and reporters trying to do their jobs. Dozens of journalists in the United States currently face jail time and fines for doing their jobs and protecting unnamed sources. Many Americans also likely don’t know that there is a protection available that we must activate: a federal shield law.

To understand the importance of a federal shield law, one must first understand the role of the press in American government. When framers of the Constitution included in the First Amendment a provision that protected freedom of the press, they were introducing this entity as an essential part of the government — another check in America's system of checks and balances. As journalist Andrew Marr explains in the British newspaper the Independent,

"The only way to keep the huge power of the market and the political elites in some kind of check is through an informed, active and occasionally difficult citizenry. And this, in turn, needs public-sphere journalism."

From this principle rises the notion of reporter's privilege: the idea that, much like in executive privilege, in fulfilling their role within the fourth estate, journalists are guaranteed certain privileges not granted to every citizen. One of these rights is the right to secrecy; in order for journalists to do their jobs successfully and for sources to feel comfortable in divulging information to reporters both must be assured that their identities will be protected.

However, this privilege is being stripped away by many in America's court system. By claiming that journalists should be required to testify in cases about which they received information from confidential sources, judges can charge those that refuse with contempt of court. Since 1984, over 20 America reporters have been jailed for contempt for protecting news sources, according to the Reporter’s Committee for Freedom of the Press. Cases in Connecticut, Florida, New York, and many other states are currently under review, with fines and jail time hanging in the balance. There are cases pending across the U.S. for other journalists. Across the globe, Reporters Without Borders cites 144 reporters currently under arrest, including two in the United States.

These numbers give rise to the need of a federal shield law. Currently there are three bills in Congress that would shield reporters from prosecution, the most comprehensive of which is the Free Speech Protection Act of 2005. Introduced by Senator Chrisropher Dodd, a Democrat from Connecticut, the bill would provide a variety of individuals in a variety of media (including, coincidentally, bloggers) with protection against far reaching subpoenas, like those in the cases above. In only extreme cases would reporters be required to divulge the names of secret sources, thereby making sources comfortable in talking to the press and reporters safe in doing their jobs. Though some states, including Arizona, have their own shield laws in place, 17 states do not and many others have very weak laws in place. A national shield law would show that America as a whole understands the importance of a free press, and through this, transparent government.

A federal shield law is not simply a desire of those within the media; the majority of Americans support the idea as well. According to a First Amendment Center 2004 survey, when given the simple statement “Journalists should be allowed to keep a news source confidential,” the majority — 72 percent — said they strongly or mildly agreed, while only 23 percent mildly or strongly disagreed, with 4 percent unsure As editors at the New York Times, one of the very institutions under attack in this conflict, eloquently wrote:

"The specter of reporters being imprisoned merely for doing their jobs is something that should worry everyone who cherishes the First Amendment and the essential role of a free press in a democracy."

Clearly, American citizens understand this independent media importance.

Reasonably, there are concerns accompanying a law that could, in effect, prevent Americans from testifying about a crime. One could extend this concern to the idea that criminals might be emboldened and feel there is less chance of their crimes being discovered. However, there has been no correlation between a rise in crime and state federal shield laws, and none of these laws passed by the states have been repealed. Additionally, shield laws being proposed, including Dodd's, contain limits that allow prosecutors to obtain limited information from journalists if this is their only means of obtaining evidence. One could also argue that the idea of a fourth estate is flawed, and will not result in stronger government. Indeed, no studies have been done to determine if a federal shield law necessarily results in better journalism or greater government transparency. However, looking at countries that have greater restrictions on press freedoms, one sees there is an intimate connection between treatment of the press and treatment of individual rights. For example, the governments of China, Burma, and Eritrea repress freedom of the press, and are all listed by the State Department as human rights abusers. Though we may not understand the direct connection between a free press and a free society, it is clear that these bonds are great.

Declaration of Independence author Thomas Jefferson once said of the freedom of the press,

“Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter."

Thomas Jefferson was wrong: there is no choice between newspapers and (democratic) governments. They come together or they die alone. Without an informed electorate, corruption thrives, political interest atrophies, and an authoritarian, illegitimate government rises from the waste; countries like China and Eritrea show us this. It’s time America showed it understands the importance of journalism by passing a federal shield law, before its citizens wake up one morning to find no newspapers on their doorsteps.