Shield Journalism, Not Journalists

Three simple solutions to Judith Miller's messy legal problem

Matt Welch | July 6, 2005

(Page 2 of 2)

More than enough ink has been spilled, including by me, on the thorny legal and potentially constitutional issue of who is entitled to journalist-shield protection (which is currently on the books in 31 states and the District of Columbia). Do bloggers qualify? Will the government be put in the creepy position of credentialing reporters? The Plame case has given renewed push for a new federal shield law, giving significant though not absolute protection for journalists against being compelled to reveal their sources and notes.

As the bill percolates through committee, here's my solution to the central conundrum: Offer the protection to any citizen who is in the process of conducting journalism. Judith Miller and Matthew Cooper clearly identified themselves as working on articles they hoped would be published. That's journalism. Similarly, freelance writer Vanessa Leggett—who was shamefully jailed for 168 days a few years back for refusing to cough up notes on a Houston murder she was compiling for a book, after the Justice Department successfully argued she was not a "working journalist"—would have also qualified.

Non-"professional" bloggers, too, could qualify, in the extremely unlikely event that A) they were actually compiling original data worth subpoenaing, and B) they had identified themselves to interview subjects as working on something to be published. Making this determination would be far less complicated than the current federal shield bill's messy attempt to define a "covered person" by publication or outlet.

Therapists, lawyers, priests, and spouses all have at least some protection against having their confidential conversations made into fodder for rampaging prosecutors. If it were up to me, that shield would be extended to the full population, at least until the grand jury system was reigned back in.

But in the meantime, no matter how much we hate individual or institutional journalists, no matter which political party we shill for, expanding that protection to cover those who intend to commit acts of journalism is at least a pinkie in the door. It's a small gesture toward protecting what few constitutional checks we still have against the government's ability to demand anything out of anyone at any time. A federal shield thus construed would also make it easier for all of us to contribute to the free exchange of information.

A country that shrugs at the sight of reporters getting hauled off to jail—or of 87-year-olds being forcibly removed from their houses, or of senior-citizen cancer sufferers being prosecuted for growing their own medicine—is a country that looks less inhabitable by the day. Unless you take your comportment cues from Time.