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We Don't Need No Stinkin' Shield Law, Part 2The First Amendment belongs to citizens, not the corporate press.

By Jack Shafer
Updated Wednesday, April 16, 2008, at 8:31 PM ET

Read Part 1 of Shafer's screed against the shield law.

Cracked shield.

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."

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Jack Shafer is Slate's editor at large.
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