Journalists and their sources have long enjoyed a trusting relationship in the United States, mostly due to the fact that the First Amendment to the Constitution guarantees freedom of the press, and courts agree that this also guarantees the protection of sources.
“Reporter’s Privilege” laws, enacted by 49 states and the District of Columbia, offer protection if a state government seeks to force a journalist to reveal confidential information, including the identity of a source, according to The Society of Professional Journalists (SPJ).
This varies from state to state; some have statutes, and these are known as “shield laws,” while others protect journalists via case law. Despite these protections, some government agencies toss these laws around like bargaining chips, and this erodes the rights of journalists to protect themselves and also keep sources confidential.
Free Flow of Information Act
So now there’s a federal shield law in the making—The Free Flow of Information Act of 2013. The SPJ reports that the Senate Judiciary Committee passed Senate Bill 987 last September; the bill is currently awaiting full floor debate.
Unfortunately, experts say that this bill has Grand Canyon-sized gaps and nebulous phrasing which may do journalists more harm than good, all because of worries regarding national security. The bill is weak because Congress is reacting to whistleblower Edward Snowden and other WikiLeaks revelations, says Jane Kirtley, J.D., a Silha Professor of Media Ethics and Law at the University of Minnesota.
Specifically, the weakest part of the bill is section 5 because it “specifies that there is no protection in investigations relating to investigation or prosecution stemming from disclosure of classified information when the government claims the information is needed to prevent or mitigate an act of terrorism or other acts ‘reasonably likely’ to harm national security,” Kirtley informed Decoded Arts. “Moreover, the courts must defer to facts as alleged by the appropriate federal agency.”
“National security” is a phrase that’s very broad and very vague, she notes– and Kirtley is not alone in her distrust of this new bill.
Malleability of Shield Laws
“The proposed federal shield law has gone through many changes,” Josh Wolf, a documentary film maker and reporter for the San Francisco Public Press, told Decoded Arts. “It’s a moving target that’s often hard to track and I can’t help but use my own case to deem whether or not I like the law.”
Considering what happened to Wolf, it’s understandable that he might feel skeptical. On July 8, 2005, Wolf was filming a demonstration in San Francisco against the G8 summit in Gleneagles, Scotland. He posted the footage on his site, Freedomedia, and sold portions of the tape to a collective website and to a San Francisco news station.
The F.B.I. asked to review his footage to see if he filmed anyone committing crimes, but he refused to give up the video. The US Attorney’s Office subpoenaed Wolf and the videotape; alleging, according to Time.com, that the unedited tape may have shown a San Francisco police car being set on fire—a federal crime because the SFPD received anti-terrorism funding from the U.S. Wolf disagreed with the government agencies’ supposition.
“It was a typical protest for the most part. Toward the end of the march a police officer appeared to be choking someone while making an arrest, which I caught on camera,” Wolf told Decoded Arts. “His partner was injured around the block, but I was nowhere near that and thus had no footage from that incident. Everything that I recorded that was at all interesting had been released publicly the night of the incident. There was nothing of interest in the outtakes.”
Wolf maintained that the tape showed no attempted arson and, that because he was a freelance videographer and blogger, he was an independent journalist and therefore protected under California’s shield law, and as such shouldn’t be forced to turn over the unpublished tape or reveal confidential sources.
Ultimately, Wolf spent nine months in federal prison after being cited for civil contempt; the longest sentence served for contempt by a reporter in the United States. In a compromise, he agreed to answer a few questions regarding what he saw at the demonstration, turn the videotape over to prosecutors and publish it on his website, showing that the tape did not reveal anyone torching the police car.
Wolf doesn’t set much stock in the current shield law and doesn’t see particularly a robust one in the near future, he told Decoded Arts. But, Wolf continued, “hopefully we can see a Justice Department that doesn’t look to reporters as extensions of the intelligence gathering apparatus of the state.”
Wolf says that he’d like to think that journalists don’t make promises they won’t keep—both professionally and personally. They should, in fact, clearly discuss what they are and are not willing to do to protect a source’s identity.
Necessity of Shield Laws
“It’s important for journalists to protect their sources for a number of reasons,” says Jim Taricani, an investigative journalist for NBC News 10, in Rhode Island, in an email interview with Decoded Arts. “The most important is—the use of a source can often times allow a journalist to report important information to the public, that the journalist would otherwise not have access to. It’s also important to let sources know that they will be protected, so they don’t fear giving journalists information.”
Taricani, who has more than three decades of television journalism under his belt, dealt with a situation similar to Wolf’s when he refused to identify the source who gave him an F.B.I. videotape related to an ongoing investigation into government corruption in Providence, Rhode Island. In 2004, Judge Ernest C. Torres convicted him of criminal contempt and sentenced him to six months’ home confinement according to The New York Times.
“When I became a reporter 30 years ago, I never imagined that I would be put on trial and face the prospect of going to jail simply for doing my job,” Taricani told The New York Times. “I wish all my sources could be on the record, but when people are afraid, a promise of confidentiality may be the only way to get the information to the public, and in some cases, to protect the well-being of the source. I made a promise to my source, which I intend to keep,” he told The New York Times.
It was an especially difficult time for Taricani. The judge slapped him with $85,000 in fines and he’d suffered two heart attacks in the past, receiving a heart transplant in 1996, so his health problems were definitely a major concern. “My heart transplant doctor had to write Judge Torres a very pointed letter, advising him that if he sent me to prison, as opposed to home confinement, he could be giving me a death sentence,” Taricani says.
The Fourth Estate
Since the media is closely aligned with politics, it’s often called the fourth branch of government, or the fourth estate. As such, the media monitors the political process and shapes public opinion. Journalists labor to inform the public about political goings-on, but when government officials hold their feet to the fire and threaten their sources, it becomes obvious that shield laws are crucial.
However, Senate bill 987 may add gasoline to this fire since it burdens journalists with having to prove that compelled disclosure would be contrary to the public interest, as opposed to the presumption that journalists automatically enjoy protection, Kirtley notes.
“We don’t know how difficult that will be to prove, but in my view, this language has it backwards: it should be the government’s sole burden of proof,” she says. “Although it is true that the government does have to demonstrate some things, my guess is that ultimately courts will defer to government to a great extent.”
She’s also concerned that journalists from states that already have robust shield laws may think that this will give them even more protection. New York, she notes, has a very strong shield law, and journalists from The New York Times, for example, are accustomed to this, and are confident that they can maintain the confidentiality of their sources.
“When they hear about a federal shield law, many of them will assume—wrongly—that the federal law provides comparable protection,” Kirtley says. “It is cumbersome, at the very least, not to mention impractical, to require journalists to make these kinds of distinctions in their dealings with sources.”
Well-Informed Public; Shield Laws for Journalists
Many reporters maintain that it’s in the public’s best interest to be well-informed. It’s in a journalist’s best interests to understand what shield laws mean to them and not be hampered by those that work against them and the public whom they serve.