Why Journalists Don't Need (and Shouldn't Want) a Shield Law
Forgive me if I see not just some irony but a couple red flags in the new right-wing support for a federal shield law for reporters. Oh, now that it's a way to defend Fox News and get back at Obama, well, sure, we need a shield law.
Count me out. As somebody who has been a reporter all his life, I'm choosy about the skirts I dive under for protection.
Bill Keller, former executive editor of The New York Times, has a thoughtful op-ed about it in the Times today. He recites some of the serious misgivings that serious people in the business have had about shield laws in the past, then comes down somewhere in the middle, favoring a law that might best be described as a shield with holes in it.
I'm for no shield.
The best recent piece to read, if you want to know why, was by Julian Assange, the Wikileaks guy. It ran Sunday, also in the Times, and it wasn't about shield laws at all. It was basically a review of a new book by two top Google officials called The New Digital Age, all about the ways in which digital technology in general and, yeah, well, Google in particular, are going to make human beings a happier, wealthier, wiser species. I grew up in Detroit, so I'm sort of immune personally to the "What's good for General Motors" argument, but apparently, if one judges by the jacket blurbs, this book is being taken very seriously, maybe because reading it is like surfing for cool new devices.
Anyway, Assange's op-ed in the Times was, I thought, a brilliant take-down of the whole suggestion that we can ever make life better by ceding individual liberty and privacy to central authority and then asking the authority to compensate us with comfort and safety. Assange concludes: "This book is a balefully seminal work in which neither author has the language to see, much less to express, the titanic centralizing evil they are constructing."
The trick, in understanding the basic argument for a shield law, is understanding that shield laws turn journalists into the bellwethers who lead everybody else into that final suffocating embrace. For one thing, under the law today, there is no such thing as a journalist, in the sense of a distinct class of persons who qualify for a special status in the law. Freedom of the press is about expression itself, not the people who make money at it. A shield law would create such a class.
Now all of a sudden journalism becomes a true "profession," and the journalism schools of the world achieve their institutional erotic dream. Maybe they can double tuitions. But for real reporting to work, the last thing reporters should be, the very last thing they should imagine themselves to be, is some kind of priesthood whose status and very definition are an endowment bestowed on them by government. Screw government. Screw everybody else, as a matter of fact.
A shield law does the same thing the so-called open records and freedom of information laws have done: put the whole reporting process back in the hands of government and lawyers. All of a sudden reporters are busy filling out forms instead of being about the real business of reporting, which involves getting the people with information drunk and, even though I certainly never did it myself, sleeping with them if necessary.
You figure out who's got an incentive to dish, and then you figure out how to get them to do it. Not only do we not need a law for that, we do not want a law for that. Reporters belong in back alleys, not front offices.
What about the thing of getting caught, the whole punishment business, assuming you, your editors, your publisher and their lawyers are jointly witless enough to publish something that's illegal to publish but not worth going to jail for? Yes, indeed, that is the chance you take, because getting caught and punished is the chance all Americans take for breaking the law. If the bet's not worth it, don't make the bet.
What about being forced to give up your sources? Well, we all have choices there. What did you promise your sources? I tell mine, if it comes down to the courthouse and me being behind bars, in that event I'm going to give you up. I lose good stories that way. But what if I tell my source I will never give him up no matter what? Fine. Then my choices are three: 1) perjure myself and risk prison, 2) go straight to jail anyway for contempt or 3) screw the guy and go back on my word.
Those are the real rules. There's not a way to fiddle those rules without fiddling liberty itself. Reporters are not worth that sacrifice. They can get the same story other messier riskier ways. I thought that was why we liked this job.
The closer reporters drift to the status of a special class, the more they become embeds, isolated among the people they cover, even wearing their uniforms and inevitably craving their approval because that's how human nature works. Instead they belong far outside the campfire ring, like feared hairy things lurking in the forest gloom. That's who steals the meat, not some dude with a laminated ID chained to his neck.
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