Challenging
the Shield Laws
by
Rachel Roach
“The
public suspects that the news business is more about money than a dedication
to truth-telling," claims Bruce Sanford, a First Amendment attorney quoted
in an article by the Associated Press (Associated). But this loss of faith in the news media has
more to do with the press’s growing inability to protect its sources with
the shield laws in place to protect journalists and their secret informants.
Law enforcement, government officials, and lawyers are challenging these laws
and are responsible for reducing their power.
The
first group subverting the shield laws is law enforcement. One way law officers
try to bypass existing shield laws is by arresting journalists. For example,
Irish journalist Ed Moloney as described by News
Media & The Law, was arrested and informed that he could spend
a term of five years in jail with continual fines if he did not relinquish
notes he had obtained in an interview with a convicted murderer ("Irish"
18). Another way law enforcement is making reporting
difficult for journalists is by
withholding their right to report at all. Many reporters, especially those
covering protests, points out Nat Hentoff in his
article "Stopping the Press," have been detained for hours even days, not being allowed to use the information they
have collected nor report it. Hentoff quotes Jonathan
Turley a professor of constitutional law at George Washington University and
columnist as he confirms an account by Noreen McAuliffe, one of several columnists
detained at a protest at the World Bank and International Monetary Fund meetings
when he says that the police should be "held accountable" for their
actions and for dismissing The First Amendment and public interest (Hentoft).
Furthermore, law enforcement has been exploring new ways to subvert the shield
laws by withholding information. Police departments, expresses the article
"The Cops Radio Silence," are rapidly changing their old methods
of radio dispatching to new high-tech radio systems which do not allow the
press or the public to monitor. The new systems will not be accessible without
law enforcement codes and reporters are challenging this. Lucy Dalglish,
the Reporter Committee for Freedom of the Press Executive Director states,
"Something that historically has been open to the press as well as the
public cannot be arbitrarily cut off “ ("The Cops").
In addition, pushing to reduce the power
of shield laws are government officials. Vice President Dick Cheney
has battled with the press for many years, says Adam Liptak
of The New York Times (Liptak). Cheney, although not successful, tried to have immediate
indictments drawn up against Seymour M. Hersh, a
writer for The New York Times, claiming that he put "national
security in danger" and wanted a search warrant for Hersh's
residence to obtain notes that he kept there (Liptak).
The author also quotes Kathryn S. Olmsted, a history professor at the University
of California at Davis when she describes Cheney's view of the press from
the book she wrote on the Cheney file called Challenging the Secret Government,
"His philosophy is that the president and the vice president and the
people around the president decide what's secret and what's not" (Liptak). Another example of how shield laws are being challenged
by government is the threat to journalists of being prosecuted under the Espionage
Act. For example, Liz Halloran and Scott Michels
of the US News Media & World Report explain that this means that
the exchanging of any "unauthorized" National Defense information
can be considered a crime and that shield laws will not protect journalists.
For instance, the author explains, two pro-Israel lobbyists were charged under
the Espionage Act after they obtained secret National Defense information
through mere conversations. Both lobbyists and journalists were stunned. The
authors quote Geoffrey Stone, a law professor at the
Another
group that tries to subvert shield laws are lawyers.
They are finding new ways to force journalists to relinquish the identity
of their sources. One method that lawyers are using to circumvent shield laws
is the serving of subpoenas to reporters with confidential sources. For instance,
"In the past two years, more than 30 reporters have been subpoenaed or
questioned by federal court officials about their confidential sources,"
states Lisa Friedman of the American Journalism Review (Friedman).
This is discouraging for many journalists because people who leak or disclose
secret information want their identities concealed and for good reason. For
example, revealing a mother's name in a case involving one of her sons molesting
a younger sibling, inevitably reveals the name of the child as Patrik Jonsson points out in his
article "In Duke Case, a Bid to Tilt Public Opinion" (Johnson).
However, this does not stop many lawyers in their pursuits. The existing shield
laws also help protect rape victims from being scrutinized about their sexual
history. Jonsson describes a rape case involving
a woman and players of the Duke lacrosse team and
how prosecutors are fighting the current shield laws in hopes that they may
be able to disclose the rape victim's sexual history in order to alert the
jury to the fact that she is a stripper (Jonsson).
The defense lawyers involved feel the information will help their case. Another
strategy used by lawyers to circumvent shield laws is simple diversion. Josh Wolf, a freelance journalist was subpoenaed
over a videotape of an Anarchist protest that he had taken previously in
It
is very important that the federal government move toward a solution. Shield
laws are vital to the press as well as the public. Having the proper tools
to deliver critical information is important because society needs to be able
to continue to monitor how public safety and law enforcement agencies do their
jobs. These efforts would strengthen our culture and leave the public able
to make intelligent well informed decisions.
Associated Press. "National Shield Law Needed, Press Lawyer Says."
4 Oct. 2004.
"Cops Radio Silence." Editor & Publisher 27 Nov. 2000:15. Academic
Friedman, Lisa. "Unshielded: Anti-Media Sentiment Could Jeopardize