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Whom Would a Federal Shield Law Shield?

By Ben L. Kaufman · October 27th, 2009 · On Second Thought
Congress is considering a federal shield law for journalists whose sources, notes, unused images and testimony sometimes are demanded by federal courts and officials.

At its most basic level, a shield must protect reporters’ promises of confidentiality to sources. Otherwise, reporters will have to choose between breaking their promise or jail. State laws — in Kentucky Ohio and many other states — provide some shield but not in federal proceedings.

I’m no fan of shield laws. A friend and colleague, James Pilcher, is a vigorous advocate of shield laws. I’ll let him explain below, but we agree that many people will remain silent on matters of public importance if they can’t trust a reporter’s promise to conceal their identity.

My objection to shield laws arises from my conviction that the only law that can’t be repealed is that of unintended consequences.

A federal shield law must define who/what is protected. That means Congress will decide “who is a journalist.” As a member of a religious minority, I have inherited a heightened sense of imminent threat: When government defines an “in” group, everyone else is outside. If Congress defines who is covered by a national shield law, everyone else will be denied its protection.

That leads to unintended effects: de facto licensing with its privileges/sanctions. The prospect of losing shield protection could be as coercive as the threat of jail.

Today anyone can call himself or herself a journalist. In the same way, camera phones don’t make everyone a potential “citizen journalist.” But are you a reporter when you pursue material for a book? What about bloggers, Tweeters and others on the Internet?

The vigor of our news media arises in part from free entry into the public square. No one needs a journalism degree from an accredited journalism program to be a journalist. Some of The Enquirer’s best reporters never started or finished journalism degrees.

One of my early mentors, Henry McLemore, was a pre-war star at United Press and a McNaught Syndicate columnist when we met. I still recall his cackle when he learned that my graduate adviser was the young professor who flunked Henry in his only journalism course.

Better known is broadcaster Harry Reasoner’s more recent refusal of an honorary degree at my alma mater, the University of Minnesota school of journalism. Instead, he finished the course work decades after leaving for the Army.

In addition to de facto licensing, I have another caveat: Because no law is absolute, what exceptions will lower any federal shield?

Everyone would be affected by a federal shield law and its implicit licensing and coercion. This goes beyond the trade; it implicates our democratic process.

Rather than let Congress decide who’s in and who’s out, I’d rather have no federal shield law and entrust my protection to federal judges and, despite the partisan corruption of the past decade, the traditional Justice Department restraint.

State shields are not absolute, and in the absence of a federal law few reporters face the choice of compliance or jail. We make a big deal out some these cases because it’s our way of pushing back against authorities who try to enlist us in their investigative and prosecutorial efforts.

Support for a federal shield law unites friends and foes of American journalism to create a situation that’s more threatening than that which we live with today. The status quo might be better for us and our audiences than any limited or faux protection Congress might create.

Another view comes from Pilcher, president of the local chapter of the Society of Professional Journalists and an Enquirer reporter. We argued over lunch, and he told me of his email to SPJ members. Here’s what he said:

“To think, I could be in jail right now. All for a story that never ran. A few years back, I started receiving separate tips from local (yet federally employed) airport security screeners that the organization at the Cincinnati/Northern Kentucky International Airport was a mess. There was one assistant manager whose style had so grated on local employees that morale had sunk to very low depths.

“Normally, personnel squabbles aren’t something we cover. But when it gets to the point that workers are afraid of reporting security loopholes for fear of getting in trouble, then yes this was newsworthy. I never got any screeners to go on the record with me, and my editors and I felt I didn’t have enough to publish. But by telling me of the specific security loopholes they saw, those screeners broke the law.

“And if we had published (or even if we hadn’t and some overeager federal prosecutor wanted to make a point), I could’ve been forced to give up the sources or face detention/prison. This was six years ago, well before the Valerie Plame/Scooter Libby/Judith Miller affair with The New York Times or Lance Williams and Mark Fainaru-Wada of The San Francisco Chronicle, who were threatened with jail for refusing to turn over sources who gave them grand jury information on the BALCO/Barry Bonds scandal (turns out, Williams is from Cincinnati). That source eventually came clean and went to jail himself.

“I bring my own anecdote to light because of the ongoing fight over a national shield law. Because of this — and because I still cover federal agencies including the TSA, the FAA, the NTSB, etc. as well as interactions with the SEC and the Federal Reserve — I still have this worry. What if I found a terrific whistleblower on a major story but had second thoughts about putting it in the paper because I could go to jail (or be forced to turn over my notes and then my source would go to jail)?

“As it turns out in my particular case, the story dried up anyway. The TSA fired the manager in question, morale improved, and the security lapses were indeed fixed. But it goes down as one of those woulda, shoulda, coulda stories that every journalist has in their memories.

“Now as opposed to then, however, there is a bill floating around Congress that would protect journalists and prohibit prosecutors or judges to force them to turn over sources or notes. It matches many state level laws such as the ones we have in Ohio and Kentucky. But in recent negotiations, the Senate stripped out bloggers and said the government should have final say on who is a journalist (something I personally strongly disagree with but is open for debate within the journalism community).

"And then late last month, the Obama administration sent back a watered down version to the Senate, all but reneging on a campaign promise to strengthen protections for journalists. That decision came after a meeting that included officials from Homeland Security, the Justice Department as well as the Defense Department, who urged that such a law would be detrimental to national security.

“SPJ strongly disagrees, as do I.

There is a national security argument to be made, for sure. But our liberty and right to know (and freedom of the press/speech) should trump that, helping create an even more secure nation.

“A well-respected former colleague comes down on the opposite side of this argument by saying that once you give the government the ability to define who you are and whether you are a journalist or not, the game is over. I counter that the importance of being able to bring major issues to the public’s attention trumps that and no one should be forced to choose between going to jail, going back on their word to a source or not publishing — the stakes are too high.”

Pilcher ended his letter asking members to get involved. “It is well within your rights as a journalist and the SPJ ethical guidelines to lobby on behalf of your own profession. So strongly I urge you to do so. Contact members of the Senate Judiciary Committee.”


Curmudgeon Notes

The Enquirer reports that the “treasurer of the conservative, anti-tax group COAST” filed an ethics complaint against Cincinnati's mayor over Mark Mallory’s “failure to report free Macy’s Music Festival tickets and other freebies to the Ohio Ethics Commission.” If that’s newsworthy, why let the mayor off the hook with this stenographic bullshit: “Mallory dismissed the complaint as being the work of people who oppose the streetcar project, of which he is a staunch supporter. ‘It’s the campaign season. … Of course, you expect these things to come from your opponents. We are at odds over Issue 9 so of course they’re going to look for ways to elevate their position.’ ” If the reporter pressed the mayor about the tickets and other freebies, it’s not in the story. It lacks even the limp assurance that Mallory “declined” to comment further. God, I hate “declined.” What ever happened to “refused” to answer?

• You always can tell when it’s United Appeal season. The Enquirer runs advertorials on the news pages, touting how some agency made a recipient’s life better. At least that’s an improvement over the Bad Old Days when The Enquirer turned over part of its local section to promos provided by United Appeal.

• Sunday’s Enquirer notes Mallory’s satisfaction with potholes filled in council/mayoral election years. Reminds me of Pumpkin Joe Greenstein, the seemingly invincable member of Minneapolis city council who was famous for fixing street lights, filling potholes and giving out pumpkins at Halloween. Potholes came up in an “analysis” of the mayor’s claim that the city is better off for his first-term efforts and this warrants re-election.

My analysis of the mayor’s claims and Enquirer effort is that so many factors are outside Mallory’s authority that coincidence often is seen as causal. If young men shoot fewer young men, is it because that population group is shrinking as they age? If more graffitti are removed, is that the mayor’s work or because of more industrious city employees? If council is more sharply divided than in recent years, is that the mayor’s fault or ineivtable given the individual agendas members bring to council and/or the mayor’s authoritarian manner?

• I wish there were a more thoughtful Enquirer analysis of Republican Brad Wenstrup’s claim that his military experience qualities him to be Cincinnati’s mayor. In the post-Vietnam era, in the midst of two seemingly unwinnable (in conventional terms) wars, is military experience a plus? I’m no fan of Mallory and his bodyguard as ads for Cincinnati safety, and I’m agnostic about Wenstrup’s ability and experience, but I’m curious about the way Cincinnati voters of many generations (WWII, Korea, Vietnam, Iraq/AfPak) answer this question.

• If you’re not among The Enquirer’s readers, you missed Sunday’s Forum section on Cincinnati public schools and the role the teachers’ contract plays in education. You probably also missed education coverage over the months by Ben Fischer, the CPS reporter; Krista Ramsey, lead writer on Sunday’s section and a former teacher; and Cindy Kranz and Denise Smith Amos, who write about Cincinnati-area schools other than CPS. You also missed Editor Tom Callinan’s first-person tale of tutoring a young woman who was graduated by CPS with a third grade reading level.

• Let’s call it a teachable moment or, "Doesn’t anyone read this stuff before it goes in?" The UC News Record banners a Page 1 report on the new chair of Jewish Studies and misses the story. A program with a troubled past, it turned to tenured Prof. Gilah Safran Naveh instead of another outsider. The News Record makes no mention of that history, including how and why UC forced out her predecessor. The reporter writes that “Naveh said the department is facing many new challenges” but doesn’t describe them. When did “problems” become “challenges”? The reporter quotes Naveh saying, “My objective is to establish here a sense of place and a healthy environment…” What is it about Judaic Studies that requires such a dramatic change and created/creates an unhealthy environment? The reporter continues quoting Naveh, “I hope to instill in my faculty a renewed sense of pride in being a part of the Judaic Studies department.” What happened that a sense of pride must be “renewed?” These quotes are red meat, and there is no evidence that the reporter took a bite.

• Another teachable moment comes on the same front page where The UC News Record embraces a common local fantasy that everything revolves around Cincinnati. In a major story on “UC scientists make discoveries assisting in longevity,” the paper says they “worked with other research facilities” and then doesn’t name those institutions.

• Neither the Judaic Studies nor the science stories (above) wouldn’t have passed scrutiny in my UC reporting classes. Even if people refused (not declined) to describe the problems (not challenges) Naveh faces or where other researchers worked, that refusal should have been in the story.

• Every time I hear the radio ad for current show at the Museum Center, my teeth grind. It says embalmed Egyptians lay untouched by “thieves” for centuries until “scholars” dug them up and took them away. When is a scholar who raids a tomb not a thief, or is what passes for Egyptology not desecration?

• So 1,000 people are reported to have died of H1N1 in this country. How many have died of seasonal flu? Fewer than the usual 30,000 to 40,000 deaths during the flu season? If someone’s keeping count of H1N1, they must also have numbers for seasonal flu. Why aren’t the liberal MainStream Media telling us?

• Fox News’ senior VP/programming says his cable network is “the voice of the opposition” to the Obama administraton. Now the White House has picked a fight with Fox News, saying this political stance permeates Fox newscasts. A subtext is that Rush, Sean and Bill are leading the GOP and it’s silly to treat Fox News as anything but a political organization.

Liberal web sites are rich with examples of anti-Obama errors that have gone uncorrected, deliberate misrepresentation and deception by Fox newscasts. Conservative web sites say the brouhaha proves Obama wants nothing less than fawning ABC, NBC, MSNBC and CBS news coverage. Smart White House staff and advisers should know that getting into a pissing match with a skunk is dumb.

Meanwhile, Fox and its fans are enjoying the wedge this furor has driven into the MSM and liberal commentators. Many agree that Fox News has evolved from a news organization into a propaganda arm for the GOP but divide over the propriety/threat of the White House attacking a network news organization of any slant. Talk about self-inflicted wounds.

• Old maxims familiar to old journalists that have gone AWOL in the stampede of click whores: “If your mother says she loves you, check it out” and “Get it first, but first get it right.” Ignoring those traditions allowed clever folks to game the news media recently with a phony email news release and press conference about a faked reversal of Chamber of Commerce objections to climate change legislation.

The hoax was perfect. The email press release initiated online coverage without anyone apparently seeking verification; it looked legit despite the incredible content. Financial news giant Thomson Reuter said it was obligated to get it online instantly since it might affect the market. Yes, and if it’s wrong?

It was one of an honor roll of news media that went online and broke into broadcasts with the “news” without checking. The press conference at the National Press Club looked and sounded like all of the others that bored reporters attend in rented rooms. Go to YouTube for the pompous Chamber of Commerce spokesman breaking in and announcing it was not an “official” chamber news conference and “mine’s bigger than yours” argument over who should show his business card first.

• TV needs images. A helium balloon floating away, possibly carrying a child, was too good to view with skepticism. This hoax also played on known weaknesses: Kids in danger are irresistable and authorities make great sources. In this fiasco, the sheriff provided the news and didn’t descend from a flying saucer wearing duct tape to tell reporters “Klaatu barada nikto.” If anything, the bereft family confirmed what the sheriff said … based on what the family told him. A snake swallowing its tail. A senior editor at the Canadian Broadcasting Corp. defended its TV, saying viewers expect CBC to cover events as they happen.

• The sun goes down early at our camp in northern Ontario, and it was perfect for catching up on New York Times Sunday book review sections. There, a gnawing suspicion morphed into a conclusion: The section has become an advertorial for Times reporters’ books. I’d used too many sections as fire starters for an accurate count, but Times staff books seemed to win upbeat reviews in every edition. No other American daily has so many able reporters, but among zillions of books published annually winning praise in the nation’s premier book review section can’t be chance.

The New York Times says it’s going to buy out or fire another 100 journalists. The Times is one of two dailies read at our breakfast table. I wish the survivors and soon-to-be-former Times people well. It’s a shitty market and a rare reporter who makes a living writing books. Or maybe they’ll start a local Internet site, competing with the Grey Lady. It’s happening in some other cities when a critical mass of talented journalists get the ax and put their skills and contacts to work.

The Times also has one of the best headlines in memory. In a delightful profile, it refers admiringly to Playboy’s 83-year-old founder Hugh Hefner’s “loin in winter.” The Enquirer published a howler Monday when it misplaced an adverb in the headline over a tragic story: Mother charged with beating son, 5, after he dies in hospital.

• Not long ago, the sun never set on CBS News’ empire of foreign bureaus. Not now. Lost revenue forced closures. Correspondents came home or left CBS. Recently, the network signed an exclusive deal that gives CBS News access to 70 GlobalPost’s freelance foreign correspondents in more than 50 countries.

GlobalPost, a new commercial venture based in Boston, says many correspondents have long-term contracts that include cash and GlobalPost stock (not options). GlobalPost says CBS News can use the reports in its broadcasts, articles, online, etc. GlobalPost syndication includes The New York Daily News, The Pittsburgh Post Gazette and The Newark Star Ledger.

My discomfort with this deal reflects the risk American news media face when its relies on citizens of countries from which they report. These journalists often face heightened risks that raise questions about the freedom with which they work. In too many countries, local journalists land in prison and die at rates that would deter less dedicated journalists. It wasn’t that long ago that a top CNN exec admitted his network pulled its punches on Saddam Hussein’s brutal regime to protect its Iraqi journalists. That meant the then-premier cable news network misled American viewers and denied us information that might have affected the decision to go to war.

• Broadcasters often confuse “siege” and “invasion.”One might lead to another, but they’re hardly the same thing. A siege is outside the place to be conquered. Think of an army around a city that it wants to capture. That’s a siege. An invasion involves entering a place to be conquered.

So when terrorists enter a building — say a Pakistani army headquarters — that’s an invasion or, if it succeeds, an occupation. It’s not a siege.

Similarly, NPR reporters in Pakistan talked about an “ambush” at army headquarters. Pakistani military might have been surprised that their headquarters could be invaded and some of its occupants taken hostage, but no one was ambushed. Think of walking into a trap, being surprised and attacked. That’s an ambush. There certainly was surprise, but there’s no indication the attack was launched from concealment.


CONTACT BEN L. KAUFMAN: editor@citybeat.com

 
 
 
 

 

 
 
 
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