Project Description

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Description of the Problem:

Journalists have been asserting their right to keep their sources and newsgathering methods confidential longer than this nation has been independent. In 1734, for example, John Peter Zenger refused to give the names of his sources when he was charged with seditiously libeling British Governor William Cosby of the New York Colony. Zenger, who was later tried and acquitted, was jailed for a month due to his refusal to identify his sources.

Recognizing the importance of providing a privilege for journalists to do their work – and thereby increase the flow of information to the public – more than 30 states currently have shield laws that provide some protection to “journalists.” The scope of this protection varies from state to state: some states provide an absolute privilege; others provide only qualified protection. States offering a qualified privilege typically permit the privilege to be defeated when the party seeking the information has demonstrated: (1) the desired information is central to the suit; (2) other means of obtaining the information have proven to be inadequate; and (3) the balance of interests favors disclosure.

Many of these laws, however, are in need of updating as they limit their application only to individuals who have a professional affiliation with an established media entity or require “regular” employment as a journalist. Some even expressly exclude broadcast and electronic media.

There presently is no federal shield law and the existence of a privilege grounded in the First Amendment or federal common law is increasingly in doubt. See Branzberg v. Hayes, 408 U.S. 665 (1972); In re Grand Jury Subpoena, Judith Miller, 438 F.3d 1141 (D.C. Cir. 2005).

Our Proposal:

The Senate Judiciary Committee is currently considering a proposed federal shield law. We propose to influence public debate on this topic in an effort to ensure that the law will cover citizen journalists regardless of whether they are affiliated with an established media entity or regularly employed as a journalist.

The Argument Against Our Proposal:

In the United States, the right to speak freely without censorship is guaranteed not only by the First Amendment but by several human rights laws signed by the U.S. government.

Most countries – including those with strong liberal democracies like Australia – guarantee this right to their citizens and nothing more. But the United States goes further and in addition to protecting the right of speech, guarantees also freedom of the press. This is the right of free public press extended to members of news gathering organizations and their published reporting. In order for them to fulfill with their job of guaranteeing the public’s right to know, the Constitution gives journalists and news organizations privileges, such as the right not to disclose their sources or their newsgathering methods.

Society trusts news organizations and their reporters with these privileges because they abide by certain professional standards, such as the Code of Ethics of the Society of Professional Journalists. Their professional commitment to telling the truth, to being accurate and to verifying the information supports those privileges.

Bloggers, on the other hand, have not made any public and formal commitment to those professional journalistic standards. The burden of proof is on them to enjoy those privileges, for it’s impossible for the government to identify each person that claims to be a journalist if he or she doesn’t work for a news organization.

Bloggers have they not made any commitment in that direction and have become tools for companies or political activists to surreptitiously sell their products or political goals. Web readers know this and do not expect to find truth on the Internet, unless it is backed up by the credibility of established media.

It could be argued that bloggers are similar to freelance journalists, in the sense that the latter do not belong to a established news organization and nonetheless enjoy the same privileges that established journalists do. But it’s not the same. Free lance journalists, although not hired by news organizations, publish their articles in a newspaper, or on television station that has to uphold journalistic values and that is responsible to the public. If a citizen can prove libel for example, the news organization is held responsible. The news organization has to guarantee that whatever it publishes meets professional journalistic standards and because of that, puts a lot of effort not only in the selection of what it publishes but also in the fact-checking of articles written by freelancers.

Bloggers, on the other hand, are not only difficult to identify many times, as they can use pseudonyms, but also difficult to track. How do you find a blogger on Internet when nothing is easier to change than an IP? And what about their journalistic values? With important exceptions, most bloggers are openly partisan. Objectivity is not a value for bloggers, who use their blogs as personal journals, with usually one source, themselves. When they use more than one source, they usually share their same point of view.

Granting bloggers protection in additional to their right of freedom of expression, would devalue the protection of freedom of the press, because it would lose its fundamental core: journalists have additional privileges because they have an additional burden: to search for the truth. It’s a burden that very few bloggers are willing to carry.