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.