Hope for federal shield law fades

February 28, 2007|By Matthew Taylor

As a journalism professor, I've learned many lessons from the trial of I. Lewis "Scooter" Libby. Chief among those is that I should amend my teaching on shield laws. No longer will I offer students reasons why a federal shield law is necessary for reporters. Instead, I'll share a more sobering message: It's not going to happen.

Before Scooter Libby was even a bit player in Patrick Fitzgerald's taxpayer-funded political drama, I referenced Judith Miller of The New York Times and Matthew Cooper of Time as examples for students of the pitfalls of using unnamed sources on national stories without a federal shield law in place. Most aspiring journalists don't think of themselves as potential criminals, nor do they recognize that jail time is an occupational hazard.

Initially, the Valerie Plame leak offered a "teachable moment." However, what could have been a clarion call for reporters' rights became an embarrassing chronicle of reporters' wrongs. Now, free press advocates have taken giant leaps away from, rather than small steps toward, the goal of establishing a federal shield law.

Many states have shield laws, which provide varying levels of courtroom protection for journalists who have granted a source complete confidentiality. Maryland's shield law was the first state statute recognizing the reporter's privilege. However, no such law exists at the federal level, which is why Ms. Miller spent 85 days in jail in 2005 for protecting Mr. Libby's identity.

Typically, the chief justification for shield laws is that they compel sources who face potential retribution - ideally whistle-blowers - to expose corporate or government wrongdoing to reporters because they know an agreement of absolute confidentially is just that: absolute. The press can therefore better serve its watchdog function.

Unfortunately, the Plame ordeal - like the Branzburg v. Hayes Supreme Court case, which established that there is no constitutional privilege for reporters who wish to withhold names of sources - positioned journalists as unsympathetic figures protecting potential criminals.

The 1972 Branzburg ruling made it clear that journalists are not protected in federal courts. More than 30 years later, the Libby trial has made it clear that journalists face long odds in the one remaining court to which they can appeal: the court of public opinion.

A federal shield law has to come through Congress. This means that members of the voting public must apply the necessary pressure for elected officials to take action. This won't happen, because shield-law advocates don't have a sympathetic figure to dramatize the cause. Meanwhile, journalism credibility continues to be an oxymoron for much of the public.

Initially, Mr. Cooper and Ms. Miller were the central figures in the Plame leak investigation. Despite the fact that he was the first journalist to publicly reveal Ms. Plame's identity, Washington Post columnist Robert Novak largely escaped scrutiny.

Mr. Cooper, a likeable figure, avoided the spotlight just before he was to appear in court and, presumably, protect his source. Ms. Miller, an abrasive personality who referred to herself as "Miss Run Amok," took center stage. She refused to testify, went to jail, and thereby became the public face of reporter's privilege.

When the Plame narrative reached its courtroom climax with Mr. Libby at the defense table, it was clear that free press advocates had been dealt a losing hand. A potentially intriguing storyline had dissolved into a complex tale dominated by ill-defined and ultimately unlikable characters. Worse, courtroom testimony - and news accounts of the trial - presented journalists as decided antagonists.

Sadly, an already cynical public has even less reason to trust news professionals. One-quarter of respondents in Gallup's 2006 "Honesty and Ethics" poll rated journalists as "low" or "very low" for honesty and ethical behavior. The latter numbers rival figures for members of Congress. It seems anyone who could have a hand in establishing a federal shield law is unpopular.

From now on I'll play it safe when I discuss shield laws with aspiring journalists. Rather than wade into the muddied waters of current events, I'll take a historical perspective and consider the Sedition Act from the late 18th century. After all, I know how that one turned out.

Matthew Taylor is an adjunct professor of journalism and mass communication at Mount St. Mary's University. His e-mail is drmatthewtaylor@yahoo.com.

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