Who Gets the Right to Remain Silent?

Chicago Tribune Public Editor Don Wycliff expresses doubt about a proposed federal shield law for journalists protecting them from being compelled to cough up sources, arguing (rightly) that "if the government gives journalists the right to be exempt from the normal obligations of citizenship, the government, ultimately, will get to decide who is a journalist." The proposed legislation (here are the House and Senate versions) defines those covered under the protection as someone who works for:

print, broadcast, cable, satellite, mechanical, photographic, electronic, or other [information-disseminating media] … [or] a newspaper, book, magazine, or other periodical […] [or] radio or television broadcast station (or network of such stations), cable system, or satellite carrier, or a channel or programming service for any such station, network, system, or carrier; or … a news agency or wire service.

The question du jour -- does this cover self-published webloggers? If so, then the government wouldn't be deciding who is and is not a journalist (because we all are!), and basically every citizen would have limited rights to clam up when hauled in front of a Grand Jury. Which, given the obnoxious, extra-constitutional over-reach of the Grand Jury system (which I wrote about regarding Barry Bonds), doesn't sound like a bad thing.

Comments

[Jon H]

I suppose every drug smuggler or accused terrorist could just claim to be working on a book-length expos?.

They could even come up with shell publishers, based offshore, who would be willing to provide book contracts as supporting evidence.

[clarityiniowa]

I am as uncomfortable with the idea of every idiot with web access calling himself a journalist as I would be about the guy behind the meat counter at my local supermarket hanging up a shingle as a freelance surgeon. But I am at least equally uncomfortable with Grand Juries having nearly limitless probative power.

[Ken Shultz]

I once heard it said that in Germany, if it isn't legal than it's illegal whereas in America, if it isn't illegal, it's legal.

...I don't think that distinction rings true anymore.

P.S. In the same breath, it was said that in France even if it's illegal, it's legal and in Russia, even if it's legal, it's illegal. I suspect those oversimplifications may yet ring true.

[dhex]

yes ken, but...what of the plight of the Barely Legal?

[zeroentitlement]

Anybody fool enough to spill their guts to a blogger (aka partisan hack) and expect him/her to be serious when they say, "sure, I'll keep this off the record," or "don't worry, they can't make me reveal my sources" deserves their fate.

I note with derision that Bob "Novakula" Novak is conspicuously exempt from this crusade. Does he have a special gay-escort, get-out-of-scrutiny-free pass from the White House, too?

[Gary Gunnels]

Matt Welch,

What one does is create a limited privilege such as the attorney-client privilege.

[WSDave]

"I am as uncomfortable with the idea of every idiot with web access calling himself a journalist..."

Comment by: clarityiniowa at February 24, 2005 01:28 PM

Probably as I am with the hacks on national TV calling themselves "journalists". : )

[R C Dean]

If you want to solve the obnoxious, extra-constitutional over-reach of the Grand Jury system then attack it directly. Creating special privileges for loosely defined groups will not solve the underlying problem.

I'll agree with this:

Anybody fool enough to spill their guts to a journalist (aka partisan hack) and expect him/her to be serious when they say, "sure, I'll keep this off the record," or "don't worry, they can't make me reveal my sources" deserves their fate.

What one does is create a limited privilege such as the attorney-client privilege.

The difference being the attorneys are licensed by the state, so we know who they are. If you really want the state to license journalists (and thus bar anyone who is not so licensed from practicing journalism), well, I think that cure would be worse than the disease.

[kwais]

This could end up being like the concealed weapon thing. Where the state gets to give licences to the in crowd.

I am not very comfortable with that. Journalists have the same rights as everyone else.

[Poustman]

"I am as uncomfortable with the idea of every idiot with web access calling himself a journalist..."

I'm not nearly as uncomfortable with any idiot calling himself a journalist as I am with any idiot calling themselves a surgeon. A surgical blunder will tend to be much less fixable than a journalistic blunder.

I do think that shielding journalists from being compelled to reveal sources or being held in contempt is a mistake. The risk of punishment for protecting a source (which to my understanding rarely occurs) is part of the profession, perhaps arguably a tiny bit like malpractice is a risk of being a physician. If they consider it an unacceptable risk, they can quit, or form a market for insurers to insure them like the MDs.

The grand jury has too much power certainly.

[Lowdog]

Shit, I've had "legitimate" journalists say they'll keep things off the record and then screw you by most definitely making it a part of the record. Sure, they changed a couple of names to protect the innocent *rolls eyes*, but it was still pretty blatant.

That was only one experience that I'm directly aware of, although my understanding was that the journalist in question had some integrity troubles, again based on personal info.

[B.P.]

When the man comes a-knocking, will everyone at Hit & Run be gathered around, hugging onto the Reason press pass like the last chopper out of Saigon?

[clarityiniowa]

Poustman - I do think that shielding journalists from being compelled to reveal sources or being held in contempt is a mistake. The risk of punishment for protecting a source (which to my understanding rarely occurs) is part of the profession, perhaps arguably a tiny bit like malpractice is a risk of being a physician. If they consider it an unacceptable risk, they can quit, or form a market for insurers to insure them like the MDs.

Excellent, I agree. Perhaps the willingness of a purported "journalist" to face this kind of consequence should be the metric for his eligibility to wear that "Press" card in his fedora.

[clarityiniowa]

Incidentally, when some judge sends Matt Grudge to the clink for contempt of court for failing to reveal a source, I'll have more respect for the guy as a 'journalist" - and I'll send the judge a dozen roses. I know he's like the god of all bloggers'n all, but the dude annoys me.

[Jon H]

"I note with derision that Bob "Novakula" Novak is conspicuously exempt from this crusade. Does he have a special gay-escort, get-out-of-scrutiny-free pass from the White House, too?"

Maybe Novak sang like a choirgirl?

Then there'd be no need to threaten him with jail.

He wouldn't exactly brag about it.

[Warren]

This whole idea pisses me off. I am all for freedom of the press, and support the right of papers to print stories with unnamed sources. As far as I'm concerned however, a story that quotes unnamed sources is of no more value than the small type on my phone bill. All sources that speak to the press have a motive, if the reader does not know who is doing the speaking, he doesn't have the first clue as to how to properly weigh and evaluate it's credibility. The publishing papers' assurance that we need not worry our pretty little heads over it, and they will vouch for the sincerity and authenticity of their sources, is pure bilge-water. Anything in print quoting an unnamed source is propaganda, plain and simple.

[dhex]

even whistleblower scenarios?

[Jennifer]

Anything in print quoting an unnamed source is propaganda, plain and simple.

So the whole Deep Throat/Watergate thing was just anti-Nixon propaganda?

[Warren]

dhex,
Short answer: yes.
Elaboration: As I said, I don't think there should be a law against the practice. But neither should we grant a violation of equal protection. Reporters should be subjected to the same legal compulsions of subpoena and testimony as anybody else. Quality journalism would do the necessary digging and investigation to produce named sources, the anonymous whistle blower being part of that investigation. Think that's too much to ask? Well to that I say, good journalism (much like law enforcement) ain't easy. Plus (excuse the repetition) you are still free to run the piece quoting "a company executive" if you want. But you can't claim any special privilege if somebody asks you for his name while on the witness stand.

Jennifer,
I don't believe there ever was a deep throat. Woodward and Bernstein did the leg work to uncover the story but couldn't fit all the pieces into twelve column inches. To make their case compelling would require that they demand their readers do actual thinking, a journalism absolute no-no. They decided that they believed in the story enough to risk conjuring a source out of thin air.

[Gary Gunnels]

R.C. Dean,

The difference being the attorneys are licensed by the state, so we know who they are. If you really want the state to license journalists (and thus bar anyone who is not so licensed from practicing journalism), well, I think that cure would be worse than the disease.

Are priests licensed by the state? Nope.

The psychotherapist/psychologist-patient privilege has been applied to unlicensed counselors.

[moonbiter]

The question du jour -- does this cover self-published webloggers? If so, ... basically every citizen would have limited rights to clam up when hauled in front of a Grand Jury.

The answer is, of course, no.

If they had in mind allowing every citizen such basic limited rights, then they wouldn't even try to define "journalists" in the first place. This law is meant to restrict rights, not broaden them.

[crimethink]

The risk of punishment for protecting a source (which to my understanding rarely occurs) is part of the profession, perhaps arguably a tiny bit like malpractice is a risk of being a physician. If they consider it an unacceptable risk, they can quit, or form a market for insurers to insure them like the MDs.

Addressing the last statement first, I'm not sure how insurance could help one who is facing jail time. And it's probably against the law to insure someone against contempt of court fines.

And the problem with telling journalists, "if you don't want to go to jail for doing your job, find another job," is that all that remain will a timid press that is by and large unwilling to embarrass the govt for fear of jail.

[MJ Taylor]

The problem with allowing someone else to define your "power" is that you shall soon have none.

How many powerful Kings are left in the world? By allowing the church to crown them, they sealed their fate.

M.J. Taylor
Editor
from Reason to Freedom