The Magazine

Shielding What from Whom?

Jun 3, 2013, Vol. 18, No. 36 • By ANDREW FERGUSON
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At least 31 states have a law protecting journalists under varying circumstances from having to disclose their sources. The laws have proved popular because they are a convenient and harmless way for a legislator to stay on the good side of the local publishers and media owners that deliver news about him to the folk back home. You have only to glance from state to state to see the problems in federalizing a journalistic privilege. States and municipalities don’t deal in the secrets necessary to maintain national security, which, if mishandled, can get lots of people killed—something you’d seldom say about leaks from the Keokuk department of roads and transit. States differ hugely on whom the shield is supposed to protect, on which matters—civil? criminal? proprietary?—the shield is supposed to cover, and on the manner in which differing claims under the law are to be resolved. Simply scaling up this incoherence to the national level won’t make it go away.

More than 50 news organizations (Reuters, Gannett, the New York Times, and so on) signed a letter protesting the AP subpoenas, and of course journalism guilds like the Society of Professional Journalists are using the subpoenas to agitate on behalf of the Free Flow of Information Act—and for the same reason guilds always lobby the government for special privileges. The act will go a long way toward establishing a government-sanctioned journalistic class. There will be, on the one hand, approved reporters who are immune to certain kinds of governmental inquiry, and, on the other hand, everyone else, those less exalted citizens who, faced with the same governmental inquiry, would just have to suck it up. The act is a classic restraint of trade, protecting favored journalists from the pressure of competitors who lack the proper credential. 

We don’t doubt there are admirable libertarian impulses behind the shield law, too, if it is intended to encourage the exposure of illicit uses of government power. But like so many libertarian impulses, admirable or otherwise, this one ends up extending rather than restraining the reach of the state’s sweaty and thick-fingered hand. Any shield law must turn on definitions. Who’s a journalist? Well, says one version of the act, a journalist is “a person who, for financial gain or livelihood, is engaged in journalism.” Leave aside for the moment why anyone in his right mind would go into journalism “for financial gain.” The next question is, And what is journalism? It is “the gathering, preparing, collecting” etc. etc. “or publishing of news or information that concerns local, national, or international events or other matters of public interest for dissemination to the public.” These are definitions without practical meaning. They will be refined on the fly, applied willy-nilly, by either unelected judges or self-interested legislators. 

Our guess is that Schumer’s act won’t go anywhere, precisely because its support among legislators is a panicked response to a jarring event, and its support from the president, a much cooler customer, is an expedient, a mere gesture. Yet the act’s revival, however hopeless and fleeting, is worth following. It has exposed yet again the self-aggrandizing pose of the establishment press—the instinct of Reuters and Gannett and the rest to confuse the interests of their own industry with a flourishing First Amendment. Trust us: If Gannett and Reuters went toes-up tomorrow, the First Amendment wouldn’t notice. 

Even better, it reminds us of the advance our technology has made since the day of the great A. J. Liebling, author of the famous aphorism, “Freedom of the press belongs to the man who owns one.” Now, of course, we all own one. Liebling’s press baron could be anyone with a laptop and a connection to the free Wi-Fi at his local Starbucks. From even so modest a perch a budding Lord Beaverbrook or Colonel McCormick can gather “news and information” on “matters of public interest” and disseminate it to a readership beyond Liebling’s wildest dreams. The Free Flow of Information Act reminds us that the free flow of information—the freedom of the press—the First Amendment itself—will thrive so long as the government doesn’t try to protect it.

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