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I have seen plenty of discussion in the media during the past few years regarding a 'media shield law". The general intent of a media shield law is to correct the perceived injustice of government pressuring journalists to disclose their sources when embarrassing information is published.

However, while detail questions regarding whether or not a particular kind of journalist (mainly bloggers) should or should not be 'protected' under such a law, or under what circumstances such a law should apply are interesting, they fail to convey the full intricacy of the question.

There are three closely related controversies involved in this discussion. First is the question of how much protection to grant journalists; the second is 'what is a journalist'. A third question, equally related and necessary to the discussion, regards journalistic privacy, and the limits of 'backdoor' disclosure.

There are a few conflicting viewpoints on each one of these questions. At the end of this diary I will propose a framework for what I think is a reasonable approach to establishing a "privilege of the press" for discussion.

How much protection should a journalist have? The basic form of protection in a shield law is that a journalist may not be compelled to disclose information on unnamed sources. However, just like attorney-client privilege, should the communications between a journalist and sources be protected? Should a journalist's office be as relatively immune from search as a lawyer's is?

Next, "What is a journalist?" There are two extremes to chose between on this question. One possible definition hinges around being an employee of a newspaper, or similar publishing organization, or a TV or radio organization that serves the same purpose. The 'narrow' extreme would restrict journalists to certain employees of publishers of 'traditional' media. At the other end of the spectrum is an 'expansive' view of journalists. In that extreme, anyone engaging in any kind of constitutionally protected speech would claim the journalistic protection.

In general, "traditional media" seem to support stronger protections and a narrower definition of what makes a journalist. This makes a certain amount of sense based on the 'traditional' or 'idealized' role of 'the press'. Journalists are viewed as principled professionals who have a strong sense of civic duty and a commitment to both quality reporting and the truth. They are perceived as a very different breed from bloggers, who they consider no different than talking heads.

Unfortunately, there are three reasons why this idealized model doesn't reflect reality. First, there are more articles, studies, and diaries than I care to count on the degradation of the media in the past couple of decades. In dact, terrible media is one of the few things that both the left and right agree on. Second, the free flow of information available over the internet, along with the proliferation of cameras, is causing a fundamental shift in how news and journalism is conducted. At the very least, it is unclear that the old business model for traditional media outlets will survive many more years.

Then there is the 'new media' or blog based news outlets such as this one. Blogs and new media sources range in quality from serious reporting with their own full-time employees, to casual bloggers who scream conspiracy theories. There are also individuals who write occasionally, or from home. There are two relative constants within the blogosphere. One is variability, the other is inconsistency, blogs defy all manner of classification or generalization, unlike traditional media.

Finally, what restraints should be on law enforcement with respect to uncovering a journalist's sources? The question basically comes down to this: with modern surveillance technology, every bit of communication a person makes can be monitored with the right resources. Even if the government were unable to force disclosure from a journalist, a search of offices, hard drives, and other communications resources could reveal those sources as well. This is an important consideration because forcing a journalist to testify in court (and go to jail if they refuse to divulge their sources) is essentially moot when he government can track those sources down anyway. There are very few individuals who are capable of resisting a local investigation, much less a US intelligence agency.

Now we've gone through some of the intricacies of the media shield law discussion.  

I tend to take an expansive view of both protection and the definition of a journalist.

In my mind, the defining characteristic of a journalist is that of journalistic ethics. I submit that there is both a weak and a strong form of the title 'journalist' and that in both cases a single test is sufficient to determine whether someone can be considered a journalist, whether they are a blogger, a poster to Youtube, or a Times editor.
In the strong form, an employee of an organization with a code of journalistic ethics that is published, legitimate, and honored. Any employee of an organization which has such a published standard would be immune from subpoena related to their official duties. The burden of proof would be on the prosecution to prove a violation of ethical standards before a subpoena could be issued.

I believe that a standard of journalistic ethics must contain a minimum of four components in order to be legitimate, but a published standard may include more restrictions on a journalist's publications:

  1. Honesty: No knowingly false statements may be made.
  1. Accuracy: Due dilligence must be made to acquire relevant facts and fact check sources or statements.
  1. Rationality: There must be a rational connection between facts and conclusions or implications.
  1. Restraint: There must be a rational and proportionate connection between public interest and damaging or harmful facts that are published.

I don't include neutrality or conflict of interest discussions in this definition because it opens the door to questions I am not prepared to discuss or answer. I am not going to argue whether or not HP could publish a 'standard of ethics' for their PR department and have them granted immunity under the law. As far as I am concerned, they can have it. Likewise, an embedded or military journalist may have an obligation to protect classified material as an ethical consideration. Problems with state secrets are whistle blower issues int hat situation, rather than one related to a 'privilege of the press' law.

How does this handle sometime journalists, bloggers, citizen journalists, and other situations? That is where the 'weak' form of a journalist comes in.

A blogger who publishes an ethical standard and adheres to it is a journalist personally for all intents and purposes. In the case of anyone else, following a set of 'reasonable journalistic ethics' would make a perfect affirmative defense after refusing to testify.

Consider the recent cases regarding the Illinois wiretapping provision: A citizen journalist video tapes a police officer committing a crime in public and someone posts it to their homepage. Look at the conditions of basic ethics I outlined above: If there are no misleading statements or misleading video editing, a recording of activity in a public place can be inherently truthful. If no conclusions are presented, #3 does not apply, and there is a well established public interest in exposing the misdeeds of public officials.

In short, a 'citizen journalist' could assert all of the protections of a shield law for a single act.

Then there is the related question of how far law enforcement should be permitted to go to root out sources. In general, the basic principle that the police don't raid newsrooms should extend to the homes, persons, and communications of journalists, when it is related to a protected publication. Journalists who are not expected to testify should also not be expected to cooperate on law enforcement attempts to ascertain the identities of unpublished information or unnamed sources.

Bloggers and citizen journalists have another problem I'll mention, which is related to the mixed use of personal and privileged equipment, communications, etc. The problem, in practical terms, is that it is much easier to find an 'unrelated' reason to search someone's home, car, or personal computer than it is to search corporate assets. I don't have a good answer to how such a situation should be handled, except to point out that if the state has an overriding reason to need the identity of a source, they can probably get a judge to issue a finding that waives the "privelegde of the press".

Under my framework, the only people who would have a relatively difficult time with the shield law would be those who engage in journalist-like activity without the ethics strings attached.

What do you think? Let's chat in the comments.

Originally posted to PiRierran on Mon Aug 23, 2010 at 08:44 AM PDT.

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