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Suggesting Ingredients in a Federal Shield Law

By Ben L. Kaufman · October 30th, 2013 · On Second Thought
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I’m grateful to Tom Kent, the AP standards editor and veteran correspondent, for suggesting ingredients in any definition of journalism for purposes of a federal shield law. 

You can find his fuller argument on huffingtonpost.com and it’s worth consideration. I’m listing the ideas he offered and suggesting my reasons for embracing the best of them and for challenging the others. 

Kent’s points reflect a welcome evolution from the historic and utterly unsatisfying efforts to define “who’s a journalist” to “what is journalism.” 

And he suggests which journalism is worthy of shield protection.  

Most states have shield laws. At best, they offer some protection to some reporters who refuse state court demands that they identify sources to whom reporters promised confidentiality. 

Those state shields don’t limit federal judges or prosecutors. So Congress is considering — when it’s not having Boehner-McConnell hissy fits — adopting a federal shield law. 

The basic idea behind shields is deceptively simple: If a potential story involves any part of the federal government, reporters are finding would-be sources increasingly fearful if there is no trustworthy promise of confidentiality.

Potential sources need to believe the reporter will go to jail to keep them out of jail for whistle-blowing or leaking embarrassing information. 

Absent a federal shield law, federal judges and prosecutors have ordered reporters to reveal their sources or face contempt of court. Some have gone to prison rather than break their promise of confidentiality.  

Now, Obama’s Justice Department is threatening James Risen, a New York Times reporter and book author, right now. He’s refused to name his CIA source for leaks in his 2006 book, State of War. Risen says he’s willing to face prison rather than break his word. 

So here are Kent’s list and my responses (in italics).  He calls them “a set of basic ethical tests, applied to a person's body of work (that) could build on the idea of journalism as a service and help supplement the definition of a journalist for shield law purposes.” 

• “Is the person's product intended for the general public?”

Would that exclude investigative reporters for medical, scientific, political, environmental or specialized business publications? Are the New England Journal of Medicine and Barron’s meant for the general public? What about journals of opinion or websites that include original reporting?

• “Is the work creative and analytical rather than a simple relay of raw information?”

This could leave most White House reporters outside the protection of any shield law.

Even AP reporters, whose work is famously neutral and bias free, would be in trouble as they told us what happened without imposing their personal, creative and analytical skills and biases. 

• “Is the reporting based on facts rather than fabrications? Are statistics honest, images unmanipulated, quotations correct?”

What happens to reporters whose stories unknowingly relay fabrications, selective statistics and misquotes in speeches and interviews with corporate spokesmen, political candidates or office holders? How many would recognize fabrications, manipulated/distorted statistics and misquotes in time to challenge the person(s) being interviews or quoted? It’s a rare reporter or editor who brings outside expertise to assess the accuracy of statistics, digital images or quotations, and today’s Internet urgency makes any such checking unlikely. 

• “Does the product convey multiple points of view? Some worry about any attempt to define journalists as on-the-one-hand-on-the-other hand reporters. Any journalism, they claim, contains some degree of advocacy. But in my view,  ‘objective’ journalism does not require that all views be given equal weight. A reporter or columnist who harangues the consumer with only one side of an issue, however, ignoring or distorting what opponents say, is more a polemicist than a journalist.”

A lot of great muckraking/investigative American journalists exhausted themselves on one side of a story, advancing what they hoped audiences would embrace and act upon. Do we really believe that climate-change deniers or Holocaust deniers always deserve time/space/weight? 

• “Does the person or his organization guard against conflicts of interest that could affect the product? If conflicts are unavoidable, are they publicly acknowledged?”

Agreed. 

• “Does the person reveal his or her identity and contact information?”

Yes on writer’s identity. Also, we should tell readers/viewers/listeners why a source insisted on anonymity and we granted confidentiality.  

• “Does the person publicly correct errors?”

Agreed. For instance, AP recently retracted a story, issued a correction and fired at least three people who screwed up an untrue, damaging story about a Virginia gubernatorial candidate.

There is a flip side to protecting  confidentiality. Too many reporters promise confidentiality too easily where none is warranted. It doesn’t have to be Washington. It could be a lifer in Cincinnati City Hall who contacts CityBeat about perceived mismanagement of public funds, inexplicable contracts or nepotism in promotions. 

Smart reporters do all we can to work around fears and get the information without promising confidentiality. After all, few of us want to face an angry judge threatening contempt of court for refusing to name a source.

My favorite approach to a source’s anxieties is to say, “If I promise you confidentiality, what will you tell me?” That’s not a trick. It’s a straight-forward question. Usually, the person realizes that confidentiality is not needed and talks. On rare occasion, my refusal to promise confidentiality costs me an interview but rarely a story. I usually know what the person wanted to talk about and I can pursue the information in other ways. 

Then there is another pitfall in the promise of confidentiality. Is a broken promise of confidentiality actually a broken oral contract? It’s happened. 

A key case involves reporters’ promises of confidentiality to Republican Dan Cohen in Minnesota who dished accurate dirt on an opposition candidate. Editors on Minneapolis and St. Paul dailies overrode reporters’ promises and named Cohen as the source. He sued and won; the First Amendment doesn’t bar successful suits for breach of contract. 

Finally, despite the best efforts of Kent and others, I still object to shield laws. They are a de facto form of licensing reporters. You are your sources are unprotected  if you’re not included in the definition of “journalist” or your work isn’t considered “journalism.”

This is no worse than the status quo and we’re getting increasingly good investigative and interpretive reporting in print and online without a federal shield law. 

And consider this: federal shield legislation must please this Congress, president and attorney general, none of whom obviously appreciates or understands why the “press” has First Amendment protections and how reporters/writers can serve the public. 


 
 
 
 

 

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