Read Part 1 of Shafer's screed against the shield law.
The federal shield legislation being considered by the Senate (S. 2035) wouldn't have protected Matthew Cooper and Judy Miller had it been law in the summer of 2005. And Department of Justice guidelines (PDF) already afford members of the press similar protection from federal subpoenas. So why are the major media companies and press associations so thrilled about seeing the law passed? Why is today's Washington Post editorializing so solemnly in favor of it? (See "We Don't Need No Stinkin' Shield Law, Part 1.")
It's not as though the oft-cited "chilling effect" has silenced whistle-blowers and leakers of classified information, making the law's passage paramount. Recent news stories exposing dubious NSA surveillance, the data sifting of financial information by the government, secret CIA prisons, a secret stealth satellite program, and torture at Abu Ghraib, just to name a few, present a press that's anything but cowed by the prospect of government subpoenas. The law is "a solution in search of a problem," as then-Deputy Attorney General Paul McNulty put it at a 2006 Senate hearing.
As I argued in Part 1 of this diatribe, the current legal ambiguities and discretionary guidelines may actually benefit the press, while codifying the subpoena machinery into law may work against those interests. For instance, in a sharply reasoned Washington Post op-ed last year advocating the defeat of the shield legislation, former special prosecutor Patrick Fitzgerald writes that a "threshold question lawmakers should ask is whether reporters will obey the law if it is enacted." Accusing some journalists of wanting their law and promising to defy it, too, he continues:
They should ask because the Reporters Committee for Freedom of the Press calls for a shield law while urging journalists to defy the law when a court upholds a subpoena for source information. Any shield bill should require that a person seeking its protection first provide the subpoenaed information under seal to the court, to be released only if the court orders the information disclosed.
One great difficulty in crafting shield laws is deciding who is eligible for their protections and who is not. The Senate bill applies to individuals and companies (and their employees) engaged in journalism. "[T]he term 'journalism' means the regular gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public," the bill states.
Although the language doesn't sound onerous, journalists from Third World and former Soviet bloc countries know all about the dangers of letting governments define who is a journalist. I'm not paranoid enough to believe that the clause in this bill will automatically lead to the mandatory licensing of journalists by the federal government, but it is an excellent foundation upon which to build such a card-issuing ministry of journalism.
Would a court decide under this law that Michael Moore's practice of journalism is "regular" enough to qualify him as a journalist? Or what about a blogger who set up his page two minutes ago? Or what about a commentator on a 900 telephone line? You laugh, but the U.S. 3rd Circuit Court of Appeals decided in 1998 that a professional wrestling commentator on a 900 line didn't qualify for protection under the Pennsylvania state shield law because, in part, his "primary goal is to provide advertisement and entertainment—not to gather news or disseminate information." In other words, "license denied."
Of the many flaws in the shield law, the most glaring is that it imagines that the highest wattage of the First Amendment belongs only to the guild that makes up the media industry. The amendment really belongs to anybody who decides to express themselves. The corporate media's effort to pass a law that would expand their rights at the expense of those outside the guild reflects the delusion that journalists are the "Fourth Estate, the co-equal of the other three branches of government. The late British journalist Bernard Levin warned us about these Fourth Estate pretensions in a seething Nov. 25, 1980, London Times column, declaring that:
It cannot be emphasized too strongly, nor indeed put too extravagantly, that the press has no duty to be responsible at all, and it will be an ill day for freedom if it should ever acquire one. The press is not the Fourth Estate; it is not part of the constitutional structure of the country; it is not,and must never be, governed by any externally imposed rules other than the law of the land.
The law may demand that a newspaper's sources shall be revealed. The law is perfectly justified (though of course it may be wrong in any particular instance) in deciding as much; if an editor or other journalist then refuses to reveal his sources, he is a lawbreaker, and may quite justly be punished. The press occasionally claims a legal right to keep such confidences, likening itself in doing so to doctors or even priests; my own view is, and always has been, that the claim is not only untenable but abominable, precisely because it would … make the press part of the Establishment, which it must not be. … [W]e are, and must remain, vagabonds and outlaws, for only by so remaining shall we be able to keep the faith by which we live, which is the pursuit of knowledge that others would like unpursued, and the making of comment that others would prefer unmade. [Emphasis in the original.]
Levin counsels journalists not to believe they possess a right that doesn't belong to all citizens. Media outlets can't expect the public's support if they engage in special pleading before Congress for laws that mainly benefits them and their employees. If they expect anyone outside their business and professional circles to give a damn about the First Amendment, they should affirm the universality of the right to free speech and a free press. It's not a privilege reserved for the few with money and clout. It's a right for all.
Thanks to Alexander Cockburn for keeping the Bernard Levin column alive in his book Corruptions of Empire: Life Studies and the Reagan Era and in his newspaper work. Send your own Levinisms to firstname.lastname@example.org. (E-mail may be quoted by name in "The Fray," Slate's readers' forum, in a future article, or elsewhere unless the writer stipulates otherwise. Permanent disclosure: Slate is owned by the Washington Post Co.)