Reflections on a tattered shield (law)?.Cervantes depicted Don Quixote?s ancient leather shield as an object whose protective capacity was a joke?indeed, it?s unceremoniously lopped in two within the first few pages of the great novel. This image occurs to me as I contemplate Sen. Chris Dodd?s proposed federal shield law, the subject of a Senate hearing today.
I believe I?m in the minority among my circle of respected journalist friends in being extremely ambivalent about reporter shield laws. It?s certainly true that there are many cases in which a collar needs to be put on an overzealous prosecutor or discovery-minded civil lawyer. (I?m not saying whether Patrick Fitzgerald falls into this category.) But almost invariably, shield laws establish an elite category of protected persons–normally employees or agents of established newspapers, broadcasters, or press associations. Yet, sound journalism is the antithesis of elitism.
Some of the finest journalism in our history was performed by citizens who might well fall outside the definition of ?covered person? in the Dodd bill, which also requires that the protected person have ?the intent, at the beginning of the process of gathering news or information, to disseminate the news or information to the public.?
This would exclude found journalism such as, say, the Pulitzer-winning expose of Synanon by the Point Reyes Light, which originated with a local sociologist who realized what he was onto only belatedly. What about the citizens who chronicled the recent London bombings from within smoky subway tunnels, cellphone-cameras in hand? They performed journalism, all right, but not by the Dodd definition.
And where does this leave bloggers? In recent months there?s been a lot of foolishness written about whether bloggers are journalists, much of it written from behind desks in air conditioned newspaper and magazine offices. The answer, of course, is that it depends on what they actually do: some are and some aren?t, a filter we might apply to members of the reporting staffs of some major newspapers and correspondents for the networks. (Isn?t it interesting that the latest version of the Dodd bill excludes bloggers?)
It should be obvious that the only proper subject of a shield law is process, not persons: the gathering of information of public interest, not the status, pay grade, or employment of the gatherer. This touches on the topic of one of my earlier posts in this space?the widening gulf between the news ?profession? and the public, which certainly explains much of our loss of credibility. I don?t begrudge anyone, including myself, the trappings of status we?ve acquired in recent decades; they?re what enable me to own a house in a rising market and will allow me to send the kids to the university of their choice (kine?ahora). But they?ve also allowed us to consider ourselves co-equal participants in a big game with the people we cover; we?re just taking opposing viewpoints during the working day, like lawyers who oppose each other in court but share a companionable golf cart on Sunday. When I was in journalism school in the 70?s, my class was shown a clip of Tom Brokaw (I believe) playing tennis with Ron Ziegler (I believe). We all gasped in dismay. Were a class to be shown an equivalent clip today of Tom Friedman playing tennis with Condoleeza Rice, no doubt the prevailing sentiment would be not dismay, but envy.
Shield laws like Dodd?s are going to provide judges with innumerable opportunities to anoint individuals as shielded journalists or eject them from the shelter, and to parse definitions of news that we journalists prefer to keep to ourselves. Manifestly, this process isn?t always going to come out as we wish.
If you want to see how ugly it can get, the place to go is Apple v. Doe, the California court case in which Apple Computer is suing three fansite operators over their advance tips on upcoming Apple products. Back in March, a state judge took it upon himself to ruminate over whether the site operators were sufficiently legitimate to be considered journalists under the California shield law. He also concluded that their published material was too trivial to qualify as ?news.? The decision, which is under appeal, is here. One point of interest occurs on page 8 (?Movants contend they are journalists?), but the part that really ticked off the local media bar is on page 12: ?Of course the public is interested in Apple?but an interested public is not the same as the public interest.? (Emphasis in the original.)
So here?s a judge, working with one of the more respected shield laws in the country, taking it upon himself to decide whether published items were sufficiently distinguished in subject and tone to be protected. The Dodd bill grants its protection specifically to published material ?concerning local, national, or worldwide events,? and while it adds, ?and other matters,? I foresee battles waged in federal courts all over the country over just how dignified those ?other matters? have to be. Debates over Guantanamo Bay, sure. But what happens when the news at issue is the color of Britney Spears?s underdrawers? In the real world, the latter should qualify as news just as much as the former (to some consumers, much more so). Will it look that way to a judge?