Shield laws are whistleblower laws for investigative journalists

(Originally published 10/20/07)

After more than 100 attempts over 30-plus years, the U.S. House passed the first federal shield law Tuesday.

As discussed here last week, a free press is integral to any free society, and the ability of independent journalists to question and hold to account ruling governments is a powerful check on tyranny. Along with the unique protections of the First Amendment, shield laws help journalists fulfill their function as your watchdog.

Shield laws are simple: they protect journalists from being compelled to testify or reveal their sources in court. Think of it this way: substitute the government for any employer being investigated; instead of a pink slip for the employee who turned the bosses in, think of a subpoena delivered to the reporter asking questions. In effect, shield laws are whistleblower laws for journalists.

Shield laws are crucial to journalists who are investigating wrongdoing, especially where government officials or agencies are the subject of that investigation. Confidential sources have been the genesis of countless investigations uncovering all kinds of misdeeds, and they may provide leads and background information or help fill in the blanks for a reporter.

The importance of shield laws hasn’t been lost on the states. Although the Supreme Court in 1972 ruled that the Constitution does not protect journalist-source relationships, 33 states have shield laws for the press, while another 16 have judicial precedents that protect reporters, according to the Associated Press.

It is unclear whether the Senate will take up the bill before the end of the year, but even if it passes, President Bush has signaled that he will veto it:

• In a memo released after the House passed the bill, the president’s advisers in the Office of Management and Budget said the Administration "strongly opposes" the bill because of its "unreasonable burdens and standards."
• White House Press Secretary Dana Perino told reporters Tuesday that Bush Administration officials believe "that the protections that are in place currently for journalists were sufficient."

(Incidentally, could it be that they think the "protections (against appearing and testifying in federal legal proceedings) that are in place currently for journalists" are sufficient because, well, there are no federal protections "in place currently for journalists?" Just a thought.)

Congress was unable to override Bush’s veto of the S-CHIP expansion, falling 14 votes shy of the 287, or two-thirds, needed. But if Bush vetoes the shield law, an override is a certainty; the bill passed Tuesday with 398 votes.

Can you say bipartisan?

In his floor speech urging colleagues to vote for the bill, Indiana Rep. Mike Pence (R-Columbus) referred the federal shield as "truly … a stitch in what I believe is a tear in the fabric of the Bill of Rights." The bill’s passage on Tuesday should be considered a late gift to Americans in honor of National Newspaper Week.

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Also last week, I pointed out the 1955 Pulitzer Prize won by the Columbus (Ga.) Ledger and the Sunday Ledger-Enquirer for their work on exposing corruption in Phenix City, Ala.

Two keen-eyed readers pointed out that the 1955 Pulitzer was, in fact, the Columbus papers’ second; the 1926 Pulitzer, also in public service, was awarded to the Enquirer-Sun, as it was called then, for " the service which it rendered in its brave and energetic fight against the Ku Klux Klan; against the enactment of a law barring the teaching of evolution; against dishonest and incompetent public officials and for justice to the Negro and against lynching."

What do you think the reporters at the Columbus papers in the 1920s and 1950s would say to President Bush about the importance of a federal shield?