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Sapere aude - dare to be wise
Sunday, July 17, 2005
Freedom of the press and reporter shield laws
Posted 11:06 AM by Luke
I'd like to take a quick moment to write about a legal sidestory to the Rove-Plame affair-- namely, legal protection and the lack thereof awarded to reporters and their confidential sources.

Forty-nine states have the so-called "reporter shield" laws that award varying levels of protection for reporters' confidentiality agreements with their sources, however no shield law exists in federal statutes. This is why the federal special prosecutor investigating the Plame-leak case was able to demand that Matthew Cooper and Judith Miller reveal their sources and why Miller remains in jail currently in contempt of court.

Now Congress is considering passing a federal shield law, and I have come to consider whether that would be a good idea. While I agree in principle that certain protections should be given to reporters, I worry that shield laws are not the most effective means of creating such a protection.

First, on the principle of necessity, the first amendment's freedom of the press should make a federal shield statute unnecessary. How free is a press that cannot keep confidential sources? Like freedom of speech, the words "freedom of the press" with no further explanation in the constitution, invites judges to fully and flexibly determine the scope of the right.

Second, shield laws, on the other hand, are inflexible and have the real potential of being both under-inclusive and over-inclusive at the same time. They, in effect, define who qualifies as a journalist and who does not, a matter that some reporters complain is akin to licensing. But when are bloggers or other "citizen journalists" protected? What about reporters who are working outside the scope of their job?

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