This month, the White House and the Senate reached a compromise that makes it likely the nation will pass a federal shield law. CW Anderson, a blogger for Harvard's Nieman Journalism Lab, talks about who the law will cover, and the compromises journalists have made to get it enacted.
Artist: Jimi Tenor and Tony Allen
BROOKE GLADSTONE: Meanwhile, senators in the White House came to a compromise last week that now makes it seem likely, finally, that the nation will get a federal shield law for journalists. Now in force in most states, shield laws are designed to shield journalists from being forced by the government to share information they've collected on the job. Opponents of a national shield law argue that allowing journalists to withhold information could endanger national security. Advocates argue that for a free press to function as the Founders intended, journalists sometimes need to ensure their source’s anonymity. During the Bush administration there was a lot of pressure on even such powerful outlets as The New York Times, whose reporter Judith Miller was jailed for refusing to reveal the source who outed a CIA official, and, of course, there was pressure on puny news producers too, including individual bloggers. C.W. Anderson who blogs for Harvard’s Nieman Journalism Lab, says that this latest attempt to enact a federal shield law is unusual for two reasons. First, it seems likely to become a law. Second, it might protect not only traditional journalists but bloggers as well. Chris, welcome to the show.
C.W. ANDERSON: Thanks.
BROOKE GLADSTONE: We've been hearing about this shield law for a long time. We know it’s in about three dozen states. But the idea of a national shield law has always eluded us, until now. What changed?
C.W. ANDERSON: I think the thing that changed was that for the last couple decades the government had shown a lot of deference to reporters without a shield law. And then, like many things during the Bush administration, a lot of that deference stopped. And I think people running these media organizations decided this is something we need.
BROOKE GLADSTONE: What you’re saying is more journalists were brought into the dock during the Bush administration, who was trying to find out, you know, the source of leaks, rummage through documents and so forth, and then the reporters suddenly realized that they really were lacking any genuine national legal protection.
C.W. ANDERSON: Yeah, and, in fact, the government was sort of taking over state cases and federalizing them. This happened with Josh Wolf out in California.
BROOKE GLADSTONE: A blogger.
C.W. ANDERSON: Yeah.
BROOKE GLADSTONE: He photographed a demonstration in which a police car was roughed up.
C.W. ANDERSON: Yeah.
BROOKE GLADSTONE: Since the cars of the local police force were funded partially by the FBI, the FBI turned his case national, and therefore Josh was no longer protected by the California shield law.
C.W. ANDERSON: Exactly.
BROOKE GLADSTONE: I can't believe I remembered that. [LAUGHS]
C.W. ANDERSON: Now, that is - that’s impressive.
[LAUGHTER] Yeah, but that’s exactly what happened. And I think at that point people were like, all right, we've got to do something about this. But the Valerie Plame case had the real impact, despite the sort of murky ins and outs of that case. That was the case that people at The Times in particular decided to seize on and say, we're going to make this an issue. So that was the main thing. Josh Wolf case was a big deal for the less institutionalized journalism community. They said, we have to be careful and make sure bloggers and people like Josh, people who maybe aren't affiliated with the big media, are also going to be covered by whatever shield law comes out of Congress.
BROOKE GLADSTONE: So how do bloggers fare in the two bills that are currently awaiting reconciliation?
C.W. ANDERSON: They're not doing well in the House bill. The language in the House bill basically says a covered person is someone who a substantial percentage of their income comes from doing journalism.
BROOKE GLADSTONE: So, the classic definition of professional.
C.W. ANDERSON: Yeah. The Senate bill has the much broader definition. Bloggers and freelancers and student journalists are also going to be covered. You know, I think it’s interesting. I think that each version of the bill has different things in it that a lot of people would say are good. The House bill has less exceptions for national security, but also a narrower definition of who counts. The Senate bill makes more concessions to national security but has a broader definition of who counts as a journalist.
BROOKE GLADSTONE: Back at the end of September, we thought this thing was dead because the Obama administration said extending a shield law nationally to reporters would create barriers to information that the government really needs to protect us. How did that get fixed up?
C.W. ANDERSON: You've got two compromises going on here, and one has to do with what the journalists say is required for the public flow of information and what the prosecutors say they need in order to prosecute cases. Basically the way it’s going to work is a judge is going to do what’s called a balancing test, which says he’s going to balance the need for the public flow of information with what a prosecutor is saying they need to solve criminal cases. And I think this codifies in law that prosecutors have to do a lot of other stuff before they can subpoena journalistic documents.
BROOKE GLADSTONE: What’s the biggest compromise that journalists had to make?
C.W. ANDERSON: I think the biggest compromise is with regard to their notes. Under this compromise, unpublished notes – in other words, notes that a reporter took with a potential criminal suspect – would not be included under this shield law.
BROOKE GLADSTONE: So then what’s being protected?
C.W. ANDERSON: What’s being protected is the information that’s included in the actual story.
BROOKE GLADSTONE: But the information that was included in the actual story is already public. Law enforcement and everybody else has access to it. Is it the anonymous sources that contributed to the information in those published stories that get some protection?
C.W. ANDERSON: It’s ironic. I think that a journalist right now would almost feel like if I want to protect this, I'd better get this interview in this story. I think if the interview gets into the story, then it’s protected, and I think if it’s just an interview that sits on the shelf and is never brought into the actual news story, it won't be.
BROOKE GLADSTONE: That’s very curious.
C.W. ANDERSON: It is, and I think that it’s unclear how it’s all going to actually play out, what constitutes information that was never used in a story. I think reporters would have a hard time answering that question.
BROOKE GLADSTONE: There hasn't been a vote on this yet. The bills have yet to be reconciled, so this is still a process.
C.W. ANDERSON: Yeah, there hasn't even been a vote in committee that I'm aware of on this bill, much less a vote in the full Senate. I think people are assuming that because Schumer and the White House and Arlen Specter have all said it’s good that it’s going to pass. But there are a lot of moving parts. It could still go a lot of different ways.
BROOKE GLADSTONE: Chris, thank you very much.
C.W. ANDERSON: Thanks, Brooke.
BROOKE GLADSTONE: C.W. Anderson is an assistant professor with the City University of New York and a blogger at the Nieman Journalism Lab at Harvard University.
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