Home -> Law Blog Directory -> Legal News Blogs -> Lawbeat

Legal News

: Lawbeat

Holes in Shafer's shield logic

By Mark Obbie

In his two-part rant against a federal shield law (Part 1 and Part 2), Jack Shafer pegs much of his argument to this pair of assertions: (1)  there is no crisis requiring such a legislative response, and (2) limiting the privilege to journalists as legislatively defined puts us on a path to licensing of journalists and turns its back on the blossoming of citizen journalism to favor mainstream corporate media. I disagree with his reasoning, and with his conclusion that the bill should fail.On the first point: Even assuming the truth of his stats on the Justice Department's use of subpoenas (relatively rare) and that the prospective law wouldn't have kept Judith Miller out of jail, he ignores the reality that high-profile attacks on journalists' independence by prosecutors encourage civil litigants and criminal defendants to use the same tactics. They also severely undercut the press' crucial role as outsider, no matter whether the number of cases is 50 or 500. And for every jailed journalist, there are likely scores of journalists whose lawyers are forced into the highly compromising posture of cutting deals that keep a case from escalating from cooperation to subpoena to court clash to jail. The atmosphere clearly has turned more hostile toward journalists who want nothing to do with evidence gathering in court, and that isn't just hype, as Shafer seems to think. What's more, the bill isn't perfect policy. It's a product of political compromise. But just because it probably wouldn't have protected the shield law's poster child doesn't mean that we don't need the best shield law that can be forged through debate. A little is better than none.Which leads to the second point. Yes, it's logically appealing to decry a policy that favors one kind of journalist over another, and to fret that one form of government definition of journalist is a theoretical precursor to licensing. But these are debate-club arguments that ignore reality. Can you really believe that if we deny the privilege to a neighborhood activist blogger we should likewise deny it to the news organization that throws its vast resources at investigating government wrongdoing at the highest levels? Are we really at the point in our culture where we place no greater value on the work done by Eric Licthtblau or Dana Priest than on the contributions to YouTube and Juicycampus.com of laughing-baby videos and the latter-day equivalent of restroom graffiti? We draw lines in the real world, to achieve some good rather than achieving no good in the pursuit of absolute consistency. A little protection is better than none. We need a federal shield law.

Full post as published by Lawbeat on April 17, 2008 (boomark / email).