Don’t ask them to protect us
May 7, 2008 – 2:23 pmThe Free Flow of Information Act cleared the House late last year, but its future is hardly assured. Although most of the members of the House supported the measure, and although journalists, news organizations, media of all sorts, and even bloggers – who hope to be included under whatever protections may be extended to the press – clamor for what is known as a federal shield law - shame on them - the prospects are murky. For instance, the Bush administration opposes the House-passed version of the federal shield, arguing that it would hamper security efforts by federal law enforcement, by insulating reporters from subpoenas, even in criminal and national security investigations. Plus, the administration argues the proposed law would encourage the use of anonymous sources in news reporting and thus encourage leaks of sensitive government information.
There are state shield laws in more than 30 states, but they differ, naturally, and they do not apply to journalists swept up in federal probes or prosecutions. The federal law would reach into the states.
The law would protect paid journalists engaged in “gathering, preparing, collecting, photographing, recording, writing, editing, reporting, or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.” Even the Society of Professional Journalists, which ought to know better and think better of itself and more carefully about the meaning of the First Amendment, praised the House action on the bipartisan shield law. SPJ called it “a victory for a free press and for the American people as much as journalists”, the latter assertion on the grounds that what protects the reporter accrues to the people’s benefit. But, SPJ’s applause is misguided.
I don’t think either assertion is persuasive. It’s not a victory for the press, because the First Amendment, interpreted and applied by the Supreme Court, already offers a broad protection to practitioners of the news business. And, as for the people, let them look out for themselves by demanding sound, aggressive practice of their work from journalists.
After all, the First Amendment’s protection is not circumscribed by political considerations, or susceptible to repeal or amendment. For me, permitting, let alone inviting, legislative action to shield the news business is flawed at the outset, because its advocates apply for succor to one of the chief objects of press scrutiny. It is the 535 members of Congress, plus the assorted agencies that are part of the executive branch, that the Founders had in mind when they erected the First Amendment as a bulwark against political tampering by elected and appointed officials. Attempting to huddle beneath the variable, but always self-involved, and often questionably motivated protections of its very targets strikes this newspaper type as both foolish and fruitless. Don’t ask them to protect us.
Journalists should make their case for non-interference on First Amendment grounds and fight the battle before the Supreme Court, not in the Congress


Doug Cabral is the editor of The Martha's Vineyard Times.


