Shield Speech in General

Bloggers have an awkward perspective when it comes to shield laws protecting journalists’ sources. The difficulty arises with the following statement from Channel 10 reporter Jim Taricani, as described by Projo columnist Ed Fitzpatrick:

As he concluded his comments Thursday, Taricani said, “The Founding Fathers carved out a very special place for freedom of the press. They wanted the press to watch over government.” Now, he said, “We have judges in the courts making these rulings about our use of confidential sources,” and “it flies in the face of what the Founding Fathers wanted the press to do in this country.”

It would be reasonable to state that the Founding Fathers wanted the people to watch over the government, with the press as a tool for accomplishing that end. The question is, therefore, what the substantial distinction is between a run-o’-the-mill citizen and one who has undertaken the profession of journalism. It isn’t the same distinction as a lawyer, priest, psychiatrist, or other doctor deserves when sensitive information is necessary for the performance of an occupation. For each of them, the information is presumed to be private under an oath, and all have professional associations (after a fashion) that provide career-ending incentive against breaking that oath. Journalists cannot be prevented from practicing journalism if they run afield of standards.
Moreover, the very purpose of giving sensitive information to a journalist is to disseminate it. When that dissemination is, itself, a crime, the journalist is an accessory, just as would be any citizen who assists another in distributing information illegally. It’s easy to forget, but leaks and such can themselves potentially harm the nation and become the sort of government activity over which we all must remain vigilant.
Teetering between journalism and regular communication, bloggers illustrate the conundrum: Somebody with the intent to break the law with a leak could easily contrive for somebody else to set up a Web log specifically for the purpose of furthering his intent. Is the government to set standards for how much blogging one must do before receiving immunity? We would rapidly trample First Amendment rights in the name of protecting them.
If it is, for whatever reason, necessary for the law to more explicitly protect journalists from being made to divulge sources of information that was given to them legally — if embarrassingly for some powerful party — then it’s difficult to see why every citizen oughtn’t have the same protections.

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14 years ago

Justin’s distinction about some leaks’ being criminal acts in themselves is crucial and is especially relevant to the Taricani case. I’ve always thought that Taricani got far too much sympathy for his position on the Corrente video for a number of reasons: 1. The leak of the video had nothing to do with exposing government malfeasance since the officials involved had already been indicted and were, at the time, being tried for their crimes. In fact, in violating the laws concerning grand jury secrecy, Taricani and his source arguably complicated the prosecution of Cianci and Corrente. It seems to me the public would not have been harmed had channel 10 waited until after the trial to broadcast the video. Of course, by then every station would have had the same opportunity and Taricani would have lost his exclusive. 2. The leak of the video was itself a crime to which Taricani was a witness. Someone in a position of trust violated that trust by disclosing grand jury proceedings to the public. Keep in mind that the purpose of grand jury secrecy is not to protect government officials from criticism; it is to protect citizens from being unfairly defamed or incriminated. 3. Although I don’t think reporters should be held accountable for ill-informed speculation about the identity of their confidential sources, many people naturally assumed that the video had been leaked by someone in the FBI or the US Attorney’s office who wanted to convict Corrente in the public’s mind before the first witness had been sworn. Had Taricani been able to keep his source’s identity secret, we would never have learned that the leak came from an attorney for one of the Plunder Dome co-defendants. The outcome of the trials would have been tainted by widespread suspicion of prosecutorial misconduct.… Read more »

joe bernstein
joe bernstein
14 years ago

A doctor cannot conceal a death threat by one of his patients against another person.This applies almost exclusively to psychiatrists-I don’t think someone being treated for ulcerss is likely to disclose murder plans.
Lawyers are liable for conspiracies they engage in to commit crimes with their clients and such exchanges are not privileged.
One of the prosecutors did leak the tape to an attorney friend not involved in the case,yet he was not punisehd-didn’t even lose his job.Amazing.
That was worse than what Taricani did because that prosecutor was an officer of the court and willfully violated a court order.

14 years ago

I agree with David’s comments concerning the Taricani case. The Judith Miller case is also to the point. Miller was not revealing leaked material that a governmental body sought to hide. Her source was not a whistleblower, whose identity needed to be protected from official retribution. She was actually aiding an administration’s snow job. The importance of the shield law is the protection of the source, not the reporter. We don’t want people scared to reveal government lawlessness and coverups.
Justin’s question about journalist’s traditional role as the people’s eyes and ears and the new role of bloggers is an important one. The journalist role of the 20th century as the objective, profesional reporter is in steep decline. Blogging seems more agenda driven than interested in journalistic standards. Bloggers right or left seek the news that fit and support their case.

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