Recent stories about government surveillance of civilians, most of it aimed at fighting or thwarting terrorists, has many people in the news business refocusing on what they see as the need for a federal law to protect journalists from government investigators.Some of us don’t see that need. It’s something we in this business have debated for a long time. It’s not that those of us who oppose a so-called “journalist’s shield law” believe government should have unfettered access to all the information journalists gather or the names of their sources. Many of us believe we already have the protection we need through the First Amendment. Congress shall make “no law,” it says, that abridges freedom of speech or of the press or prohibits the free exercise of religion.As a professional group, we’ve done pretty well through more than 200 years of court cases defining what sort of journalism activities are shielded by the First Amendment. Those protections are broad, and they share the brilliance of the rest of the U.S. Constitution in being adaptable to changes in the world around us. For each such change, we only have the burden of proving how the First Amendment applies.A shield law would be written to say specifically what it covers.Here’s an example from the proposed shield law (S. 987) filed May 16 by Sen. Charles Schumer, D-N.Y. The bill defines a “covered person” as someone who “regularly” gathers news or information to disseminate to the public and “has such intent at the inception of the process.”Fine. That covers those of us in what’s popularly known as the mainstream media.But why are we special? Why do we deserve more protection from an intrusive government than the person who stumbles upon malfeasance by a government official and starts an Internet blog to expose it?Why should that person be forced to disclose details about an information source that mainstream journalists could withhold?The distinction between journalists and bloggers or other people in today’s world of instant electronic communication is a fuzzy one.That’s not to say the distinction isn’t there. But it’s a distinction that (we hope) comes from years of building expertise and credibility for our news-gathering operations. Can credibility be defined adequately in a shield law?The people who wrote the First Amendment didn’t try to define “the press.” But a lot of ordinary people at the time printed up pamphlets and handed them out on the street.A shield law also would have to define exactly what is protected. Schumer’s bill would cover information or the identity of a source “who provided information under a promise or agreement of confidentiality made by a covered person (see above) as part of engaging in journalism.”Most of us in this business have obtained and used information provided to us confidentially. In my multi-decade career, on stories that could have very serious consequences once they are published, before promising confidentiality I’ve always had to ask myself to what extent I would go to protect the source. Would I go to jail if necessary?Under a shield law, all I would have to do is say I promised? That’s too easy. The threat of serious consequences forces journalists to think about what they are doing and maybe work harder, not be so quick to help a source stay hidden.
Mike Norman is editorial director of the Star-Telegram. 817-390-7830 Twitter: @mnorman9