Shield Us From Shield Laws

By: William B. Ketter Occasionally, there are political overtures to make life easier for the news media by passing laws aimed at preserving journalistic independence from the government. That's hardly unexpected given the traditional watchdog role of the press in an open society.

What may surprise you is that these well-intentioned efforts are not unanimously embraced by the press, the very institution that can talk itself red, white, and blue over the need to report the news without fear of or favor toward anybody or anything.

The principal reason journalists disagree on what's best for us is the very nature of our free press. While we may appear to the outside world to be monolithic, the news media in this country are far from it. Newspapers and other media outlets are run by a variety of practitioners with different ideas on the proper ways to gathering and presenting the news.

If you don't believe that, attend a conference where journalists get together to talk about what's right and what's wrong with the news business. There are happily few matters we uniformly agree on, and the result is a robust, independent-minded press.

Some of us, for instance, don't embrace the notion that special laws are needed to protect the press against courts or overreaching lawyers who seek to have reporters disclose their confidential sources or go to jail. That may be seen as hypocrisy by media-rights advocates, but it goes with the individualistic spirit of our press.

I mention this intramural disunity because of current proposals on Capitol Hill and Beacon Hill for reporter shield laws that would seek to protect journalists from revealing their sources or disclosing information that was not published or broadcast.

This latest crusade to shield the press springs from the sentencing of Providence TV reporter Jim Taricani to six months' home confinement for criminal contempt of court and the possible jailing of New York Times reporter Judith Miller and Time editor Matthew Cooper for refusing to appear before a grand jury investigating the unlawful leaking of a CIA operative's name to the press.

The seriousness of the threat to a free press and to the people's right to know is indisputable. But the best way to safeguard those rights is not.

Thirty-one states and the District of Columbia have reporter shield laws that grant some measure of confidentiality to reporters in much the same vein as doctors and priests. But 19 of them, including Massachusetts and New Hampshire, do not -- although most states have a body of law that has evolved from judicial decisions over the years offering protections of one form or another to journalists.

The New England Cable News network, a 24-hour news channel, is leading the effort in Massachusetts. It reports that judges, prosecutors, and defense lawyers have stepped up the issuance of subpoenas to get reporters to disclose confidential details and that a shield law is urgently needed to block these misguided efforts.

In Washington, Sen. Christopher Dodd (D-Conn.) has proposed a shield law. He feels that while reporters carry the burden to report news accurately, the government must ensure them the freedom to report the truth without fear of imprisonment.

A noble purpose indeed.

But one of our fears is the government. What it gives it can also take away. And while politicians can help us, as they're apparently trying to do now, they can also hurt us the next time they get mad at the press.

They can, that is, if we let them by conceding that the First Amendment isn't all it is cracked up to be. Relying on something other than the language of our founding fathers could end up costing us dearly in this risky business of publishing news some people don't want out.

There is cause for concern. Ever since the U.S. Supreme Court ruled in 1972 that reporters have no right to refuse to give information to grand juries, there have been several efforts to break the bond of confidentiality between reporters and their sources. This has the indirect effect of censorship by scaring off those news sources who won't risk possible disclosure.

But even most shield laws make exceptions when disclosure is necessary to avoid violation of a person's constitutional rights or a miscarriage of justice, such as a wrongful conviction. Or there is absolutely no other means of obtaining the information in a case that has an overwhelming public issue at stake.

These exceptions strike at the heart of press freedom. The minute we agree that the press is free except for this remote eventuality or that one, we've started giving away this little piece of the First Amendment or that one. The result might be that, over time, the legislative effort to bolster the rights of reporters could end up diminishing them.

Better that we rely on the First Amendment and fight for reporter's privilege -- and the public's right to know -- on a case-by-case basis.