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Shield Laws Create Gray Areas

By Ben L. Kaufman · June 26th, 2013 · On Second Thought
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The press card is an overt system of government licensing. Not the plastic bauble on a nylon necklace that an employer provides and admits us to the newsroom. 

No, I’m talking about a press card issued by some government agency that says we’re real journalists who have the freedom to do what the First Amendment of the U.S. Constitution guarantees to everyone. 

Sometimes, it makes sense to limit who gets in — think White House press room — but criteria used to issue those press passes can reflect more than crowd control and security. 

A press card means we’re special until we irritate someone who can ignore it or take it away. It doesn’t matter what level of government is involved; the power to issue a press card is the power to withhold. To lose or be denied a press card can affect journalists’ freedom to do our jobs. The corollary is this: It’s a crime against nature to have power and not use it. 

I don’t recall carrying a government press card, except maybe in early post-fascist Italy. I probably had something that said STAMPA (press). My main memory of invoking that special status was shouting, “Stampa!” as free-swinging police broke up a demo I was covering. “Bene!” responded one club-wielding cop as he joyfully whacked me. 

All of that is by way of explanation of why I haven’t joined the clamor for a federal shield law: It would be another form of de facto licensing. At a minimum, it would offer some journalists some protection from civil attorneys’ and prosecutors’ demands for confidential sources in federal court. 

Except for Wyoming, which has no shield law, states shield some and deny others. There is no federal shield law. Seemingly protected journalists would remain prey to prosecutors and civil lawyers exploiting exceptions in any proposed shield. 

Those beyond the pale would have no protection for their promises of confidentiality and would leave their sources vulnerable to court-ordered exposure. But there is an alternative: Shield the act of reporting for public consumption rather than focusing on who’s doing it. House and Senate versions include it. That’s my sole reason for any optimism.

H.R. 1962 is virtually identical to a bill passed before the GOP took over the House after the 2010 election. It covers “a person who, for financial gain or livelihood, is engaged in journalism...” 

Note that “for financial gain or livelihood.” What about an unpaid contributor to, say, HuffingtonPost.com? Or to Cincinnati’s Streetvibes or Article 25 or thebellwetherdaily.blogspot.com?  

However, H.R. 1962 defines journalism as “the gathering, preparing, collecting, photographing, recording, writing, editing, reporting or publishing of news or information that concerns 

local, national or international events or other matters of public interest for dissemination to the public.”

Still, who decides what’s “public interest?” Would it cover leaked confidential details of divorces of the wealthy and powerful? 

The Free Flow of Information Act of 2013, S. 987, is the Senate Judiciary Committee’s effort. It covers “a person who with the primary intent to investigate events and procure material in order to disseminate to the public news or information concerning local, national or international events or other matters of public interest, regularly gathers, prepares, collects, photographs, records, writes, edits, reports or publishes on such matters by conducting interviews; making direct observation of events; or collecting, reviewing or analyzing original writings, statements, communications, reports, memoranda, records, transcripts, documents, photographs, recordings, tapes, materials, data or other information whether in paper, electronic or other form; has such intent at the inception of the process of gathering the news or information sought; and obtains the news or information sought in order to disseminate the news or information by means of print (including newspapers, books, wire services, news agencies or magazines), broadcasting (including dissemination through networks, cable, satellite carriers, broadcast stations or a channel or programming service for any such media), mechanical, photographic, electronic or other means …”

Again, note “regularly gathers” and “public interest.” Worse, the Senate bill ignores blogs or other online outlets. 

Little of this might matter in the short term, according to James Pilcher, an Enquirer reporter active in shield law efforts by the Society of Professional Journalists. Obama/Holder/NSA intrusions advanced the federal shield cause, but with no public groundswell. Pilcher predicted a long haul before anything is approved by the House and the Senate and signed by a president. 

As I said, a federal shield for some people, some of the time. Me, but not for thee.


I hope Nelson Mandela is alive and healing when you read this.

He’s an old man with a persistent and probably lethal lung problem born from decades in prison. 

His colleagues in the ANC are preparing the country for his death and the news media are full of calls for prayer, admonitions against futile hopes for recovery, and assurances that Mandela is getting the best care possible without making him miserable and sicker. 

If he's died since I wrote this on Tuesday, he lived a life of dignity and service. By example, he led South Africans of all races and ethnicities into a post-apartheid era with good will and high, if unreal, hopes that someday, the wrongs of apartheid might be erased.  

For more than 50 years, I’ve followed his career with an interest that few others provoked. My active appreciation began during graduate school in London where I prepared for a career in Africa. Mandela, Sisulu and others were heroes of the anti-apartheid movement. Their efforts to end violent, toxic white minority rule in South Africa was companion to the growing momentum for independence in Europe’s African colonies, protectorates and overseas provinces. 

“Winds of change” was shorthand for all of this but no one expected it to blow away the racism and segregation of South African apartheid. 

That so-called “separate development” of South Africa’s various racial groups was even, then, anything but development. If anyone doubts it, look at the generations impoverished by separate education and training and how this burdens the aspirations of today’s black majority. 

By the time I reached Southern Africa in late 1963, Mandela and others were on trial, accused of sabotage and conspiracy. Blacks, whites and Indians, they were leaders of the armed wing of the African National Congress. In plain words, they were revolutionaries. In mid-1964, all were convicted and most were sentenced to life in prison.  They could have been executed. Mandela already was in prison, convicted of illegally leaving (and re-entering) the country. 

Our weekly Zambia News and then daily Zambia Times — hundreds of miles to the north — were able to report with freedom unknown in South Africa. We benefited from the freest journalism in Southern Africa, including Southern Rhodesia, Southwest Africa, and Portuguese Mozambique and Angola. 

When Mandela dies, it’s going to be fascinating to see what obits and commentaries focus on: terrorist, lawyer, prisoner, statesman, president and like Cincinnatus, a leader who walked away from power.  

Tim Funk, one of the best student journalists I was lucky enough to teach, was arrested recently for not moving swiftly enough to please cops in North Carolina. 

The Charlotte Observer’s religion reporter, Tim was covering a local demonstration by local clergy at the state legislature in Raleigh. 

Tim is saying nothing, under orders from his bosses, until after his mid-July court appearance. However, his paper said authorities claimed Tim, “who covered the statehouse in the 1980s, failed to move away from a crowd of about 60 that was demonstrating and peacefully surrendering to arrest.” He “was handcuffed and taken along with the arrested protesters to the Wake County magistrate’s office to be arraigned on misdemeanor charges of trespassing and failure to disperse.

“Jeff Weaver, police chief for the General Assembly Police in Raleigh who oversaw the arrests, told The Associated Press that Funk did not heed a warning from officers to disperse before the arrests began.” The paper said Tim was released late that same night.

“We believe there was no reason to detain him,” said Cheryl Carpenter, Observer managing editor. “He wasn’t there to do anything but report the story, to talk to Charlotte clergy. He was doing his job in a public place.”

One online reader commented that it probably was no accident that Tim was among the first arrested; that assured he could not report how police dealt with demonstrating clergy. Readers also noted how zealous police tested federal constitutional guarantees with their orders to disperse: freedom to assemble and petition government and freedom of the press. 

A 2012 survey of almost 900 American TV journalists found roughly 20 percent showing signs of burnout and uncertainty whether they will remain in the industry. 

Scott Reinardy, associate professor of journalism at the University of Kansas, said TV news staffs increased by 4 percent, revenue was up, and stations were producing more content than ever before, often as much as 5 1/2 hours more per day. “I wanted to see how all of that played into burnout,” Reinardy said.

The KU press office reported his study. He said that questions about exhaustion, cynicism and professional efficacy found that respondents who reported higher levels of exhaustion also reported lower levels of organizational support, while those who reported higher levels of professional efficacy — or satisfaction in their jobs — reported higher levels of organizational support.

Reinardy reported that 81 percent of his respondents said they work differently “than a few years ago.” Many have increased social media responsibilities, are expected to produce content for multiple platforms and have more frequent deadlines.

“Many said, ‘I can’t do this much longer,’” Reinardy said. “You’re probably going to see the TV business get younger, a little more inexperienced and, as a result, there will be a loss of institutional knowledge, which doesn’t bode well for community journalism at any level.”

I’m waiting for conservative pundits to wonder aloud how Republicans can tell us to trust the National Security Agency while assuring us, "Government is not the solution to our problem; government is the problem." I guess it’s the same mental gymnastics that reporters find when legislators kill money for family planning and do all they can to assure that low-income women can’t get abortions. 

A good sex scandal ages well even if protagonists don’t. 

In the early 1960s, party girl Christine Keeler almost brought down the British government. She shared beds of British Secretary of State for War John Profumo and a Soviet spy, naval office Yevgeny Ivanov. 

At the time, there were public assurances all around that her activities were sexual, not Cold War espionage; pillow talk was erotic, not nuclear. 

Now, the London Daily Mail says Keeler’s new book includes her admission that she helped her friend, society osteopath Stephen Ward uncover secrets about missile movements in the West that were later passed to the Soviets.

“However I dress it up, I was a spy and I am not proud of it. The truth is that I betrayed my country.”

The Sunday Mirror also quotes Keeler as saying, “The Establishment was far more interested in painting it as a sex scandal and chose to ignore claims of a widespread spying network. Far better that the Establishment be caught with its pants down than involved in stealing secrets. That was the thinking.” 

Osteopath Ward, who introduced young women to rich and powerful men, often at country houses, committed suicide as he became the scapegoat in the scandal. 

I was at UPI in London at the time. Keeler is right. There was a political/aristocratic Establishment and its first concern was its own survival. For months, we treaded lightly as we reported seemingly unrelated events without connecting them in fear of ferocious, costly libel laws. 

But the unreported stories we heard and traded proved to be less salacious than the facts as they came out. Profumo probably would have escaped with modest embarrassment had he not been caught lying to the House of Parliament about the affair. That breach of the Establishment’s expectations of a Gentleman, and not widely held suspicions of Soviet espionage, brought him down. 

Tuesday’s Morning Edition on NPR included the kind of remark that fuels conservative conviction that public network is a coven of Lefties. The host was asking a foreign reporter about the different responses of Turkish and Brazilian leaders to ongoing street protests. After the reporter offered the political context for the seemingly accommodating reaction of the Brazilian president, the host suggested that the Turkish prime minister hadn’t responded to young protesters there. First, the host was wrong. He responded. Second, it was obvious that the Turk’s response wasn’t acceptable to the NPR host because it was hardline rather than accommodating.

CONTACT BEN L. KAUFMAN: letters@citybeat.com



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