If not, then why should Miller and Cooper be excused? This question is what led me to change my mind on the case. If someone gave me information on an agent and I then published it, I shouldn’t be given privilege–it would turn the law against outing classified assets into nothing more than a scofflaw that one could circumvent all too easily by finding an individual to set up a blog and then leaking it.
The Constitution doesn’t specify that the press is made up of people with credentials from a J School or backed by a large corporate media or even a printing press. It guarantees freedom of the press, but that doesn’t mean the press doesn’t have the same obligation as other citizens.
The mistake many make is thinking of the press as some institution that exists apart from the average citizen, but that’s a relatively recent and uncommon convention brought about by the rise of corporate media. Traditionally, party activists were the media. Traditionally, small town papers were guys who bought a printing press and printed away. Traditionally, the idea of an objective press that is unbiased (a very bad choice of words) was unknown.
I happen to think the professionalization of the press was very good in many ways and it still works well in large print venues. That it is good in such contexts doesn’t mean that the 1st Amendment Guarantees are limited to such press, however.
No one who understands what the press was at the time of the Founders would think only that those with ‘credentials’ would be given that freedom–especially when three guys were writing under Publius in little pamphlets that we could never imagine not being considered under the freedom of the press.
That freedom was a freedom from official sanction for what they say–such as partisan screeds against the government. Nothing in that right guarantees someone not cooperate with a legal proceeding with which every other citizen would be required to cooperate. The press can print what it likes, but it isn’t above the law.
Rant motivated by Steve Chapman’s column on the matter.
A federal shield is very likely a bad, bad idea.
As someone who has been a federal gov’t whistleblower and a journalist I think I’ve got a broad perspective on this.
As a whistleblower, in DOD, I didn’t need to do anything illegal to further my allegations. (OK, maybe I photocopied a few documents that weren’t specifically authorized, but nothing that would lead to prosecution.)
In some ways my case was probably typical. The illegal activity conducted by whistleblowers is photocopying stuff that’s available through the Freedom of Information Act.
Of all the federal gov’t whistleblowers, how many get prosecuted for this or anything else?
OK. A shield law is useful to most, but is it harmful?
Potentially, a shield law is hugely harmful to whistleblowers.
A shield law will give the corrupt people with power a blank check to slander and malign whistleblowers in retaliation for going public.
Without a shield law, it comes down to a judge to make the call on whether to compel the journalist to testify.
With a shield law, the power is shifted to the journalist whether to grant anonymity.
Is the question merely a preference between trusting federal judges and trusting journalists?
No. The federal judge has much more information about the totality of the situation when s/he makes her/his call. The journalist conceivably has no contextual information when the source asks for anonymity.
So the judge will always have at least as much info as the most informed journalist and won’t have to make the decision “in a split second”.
Also, the federal judge’s decision is subject to appeal to the applicable appellate court and ultimately SCOTUS.
Aside from these reasons not to enact a shield law there’s the outstanding issue of national journalism’s tattered credibility. The national journalism corps has repeatedly been manipulated by “anonymous” sources. They see the problem, but as an institution, they haven’t updated their guidelines on “anon” sources.
Yet, even though they neglect to fix the things within their influence they have the audacity to ask for more power in the area of anon sources.
The journalists want more power. They aren’t terribly objective about whether this is a good thing.