Stanford Center for Internet and Society

The proposed federal shield law for journalists has recently had a surge in momentum, and nearly every news organization and First Amendment advocacy group is applauding. But I’m not. As a strong believer in the importance of investigative reporting, I am naturally sympathetic to the idea of a federal shield law for journalists. Anything that helps people hold the government and others in power accountable for their actions is a good thing in my book. So what is the problem?

The problem with giving legal privileges based on someone’s “status” as a journalist is that it simply doesn’t make sense in light of the communications environment we live in today. Thanks to the Internet, there is no rational way to differentiate journalists from non-journalists. And further, there is no good reason to try to do it.

Groups like the Society for Professional Journalists (SPJ) have an obvious incentive to try to draw a line in the sand between so-called “professional journalists” and everyone else. The more the law distinguishes professional journalists from the general public, the easier it will be for the establishment media to maintain relevancy by capitalizing on special legal privileges and exclusive access to events and public figures. (That probably explains why the SPJ raised $30,000 in support of this bill in the last year alone.)

But the reality is that we live in an age where anyone can break an important story regardless of whether they make a substantial portion of their living from journalist (as required by the House version of the statute) or whether they regularly engage in journalism (as required by the Senate version). The theory behind the shield law is that it negates the chilling effect on investigative reporting that occurs when journalists are required to reveal their confidential sources in response to government subpoenas. Leaving aside the question of whether this chilling effect is legitimate (something I think most journalists and First Amendment advocates presume reflexively), limiting these protections to an arbitrarily-defined professional class means the only chilling effect we are worried about is one that affects certain speakers. While Jane Mayer from the New Yorker may depend on a shield law more often than Joe Schmoe Citizen Blogger, First Amendment protections are typically not limited to those who need them more often. There is no valid justification for placing a higher First Amendment value on the output of professional journalists.

Of course, this argument doesn’t rule out the option of creating a generally applicable shield law that is triggered purely by the content produced by the person claiming the privilege. If the confidential source is used to reveal important matters of public interest to the general public, then the reporter of the information could depend on the shield regardless of whether it is the first or 1000th piece of journalism she has created. This approach would introduce a host of new problems, however, and it is probably the kind of expansive protection that has made Congress reluctant to pass a federal shield law since the idea first gained traction in the 1970s. But unless we intend to unjustifiably prop up the privileged status of the press in our democracy, it is the only kind of shield law worth considering.