Federal shield laws are bleak, experts say

Justin Horwath

Every day, 24-year-old video blogger Josh Wolf sets a record as the longest imprisoned journalist held for refusing to give up confidential sources or material. Wolf has been incarcerated for 212 days.

And as he sits behind bars, the bill that would have the potential to free him, the Free Flow of Information Act of 2006, remains frozen in the U.S. Senate, where it was introduced to the house judiciary committee in September. The 110th Congress has not yet taken action on the bill.

Experts say the Free Flow of Information Act of 2006 and bills like it that would grant Wolf and other journalists’ federal protection from subpoenas are unlikely to pass, as many government officials are weary of a less-restrained press.

Bob Steele, a senior faculty member at the Poynter Institute, a journalism think tank in St. Petersburg, Fla., called the chances of a federal shield law passing “slim at best.”

“Many congressmen and senators are less than enthusiastic about the role of a watchdog press in our society,” he said. “I think it’s reasonable to say that journalists are in greater jeopardy now than they have ever been.”

Steele said that at the state level, there is less respect for journalists among prosecutors.

But 31 states, including Minnesota and the District of Columbia, have enacted shield laws of varying protection for journalists, and 49 states recognize some sort of reporter’s privilege. Still, journalists are not fully protected by the First Amendment.

Silha Professor of Media Ethics and Law at the University Jane Kirtley said support for a federal shield law in the judicial branches has fallen off in recent years, with judges interpreting 1972’s Branzburg v. Hayes, which set a precedent that journalists aren’t fully protected by the First Amendment, less frequently in journalists’ favor.

Kirtley also said people see a shield law as “special interest legislation.”

“The real beneficiary is the public,” she said. “For a lot of people, that doesn’t necessarily resonate.”

Mark Anfinson, an attorney for The Minnesota Daily who specializes in First Amendment law, also said the problem in passing a shield law is the lack of support from judicial branches and the Justice Department.

“It’s pretty obvious that the number of subpoenas directed at journalists has increased and the sympathy from the courts has diminished,” he said.

Donald Gillmor, a former Silha Professor for Media Ethics and Law who helped push the shield law in Minnesota through the legislative process, called the issue of a federal shield law both “ethical and legal.”

Gillmor said one problem in passing a shield law is a “lack of sympathy from the general population (for protecting sources).”

“People don’t completely trust (journalists),” he said.

The issue of definition

Kirtley said she doesn’t believe people don’t trust journalists, but rather there is a lack of definition as to who a journalist is – a growing problem with the recent surge of bloggers like Wolf gathering and disseminating news.

“A lot of people are uncomfortable granting a privilege to someone they can’t define,” she said.

Some, such as Gillmor, believe every citizen is a journalist.

But for Kirtley, the issue of definition is a false one.

“It’s people that gather news or information for dissemination to the general public,” she said of her definition of a journalist. “But everybody doesn’t see it quite as simply as I do.”

Anfinson said the definition of a journalists isn’t that clear.

On defining a journalist, Anfinson said, “Nobody can do that. This is an issue we’ve never had to confront before. It’s a real burgeoning problem.”

Anfinson added that courts are going to define journalists on a “case by case basis,” and that, over time, coherent guidelines and boundaries will develop.

But for now, the issue of definition remains, which, according to Anfinson, slows the momentum of any federal shield law effort.

“It certainly doesn’t help the bill get passed,” he said.