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Counterpoint: I opposed the federal shield then, and I oppose it now
Like any complicated issue, the proposed shield law has its pros and cons, and not every journalist agrees it's the best approach to protecting press rights. The Society of Professional Journalists supports transparency and encourages a robust discussion to bring the best ideas to light. Mac McKerral, former SPJ president and an associate professor of journalism at Western Kentucky University, has opposed a federal shield for a decade and explains why in this column. Members can continue the discussion below, and from this discussion we can all be better informed and heard.
When the Society of Professional Journalists board of directors took up the issue of backing a federal shield law a decade ago, I served on the board.
I opposed the federal shield then, and I oppose it now.
This might not be a popular position among journalists, but folks who know me know that I do not try to win popularity contests.
The reasons I offered for opposing the shield have not changed in the decade since that conference call and vote. In fact, some of them seem even stronger now in light of the current bill called the Free Flow of Information Act of 2013.
The title is a complete misnomer.
And if you read the bill in its entirety, you will quickly find that 80 percent of it is a shopping list of exceptions including the often played trump cards used constantly by government: all things classified, all things terrorist related and all things that threaten national security.
Now that we know the government justifies massive and warrantless surveillance of phone and Internet use because of national security and terrorism, what kind of shield will journalists be carrying?
Answer: none under this law.
But let me backtrack to a decade ago when I spoke in the minority against the shield as an SPJ board member. My talking points were simple:
Even though at the time and since, the news media has faced a spate of bad court decisions involving the shield, I still trust judges more than lawmakers when it comes to doing whats best for the public. I feel even stronger about that now in light of the current makeup and disposition of Congress and the actions the president defends.
Many state shields offer much more protection than the current Exceptions to the Free Flow of Information Act of 2013 that sits on the table.
Even SPJ President Sonny Albarados own state, Arkansas, recognizes the value of the shield. This comes from the Reporters Committee for Freedom of the Press, which provides a great state-by-state synopsis of state shields: The Arkansas shield law appears to be quite broad, based both on the language of the statute and the only Arkansas case to address the statute. The statute protects reporters from being required to divulge the names of sources in criminal proceedings, under the plain language of the statute, and in civil matters, under an interpretation by the Arkansas Supreme Court.
How about my home state, Kentucky?: The protection afforded under the reporter's privilege is fairly narrow in Kentucky despite its shield statute. Although the statute provides absolute protection, it does so only with regard to sources' identities. Branzburg v. Pound, 461 S.W.2d 345 (Ky. 1971), aff'd sub nom. 408 U.S. 665 (1972). The statute generally does not protect reporters from being forced to disclose other types of information, including unpublished information. Ky. Rev. Stat. Ann. §421.100 (Baldwin 2001). On the other hand, there is no reported case which strictly interprets the statute or limits its protection.
And several state shield laws recognize a First Amendment right for journalists to protect their sources. Journalists backing off from embracing that First Amendment right is the reason why for so many years most journalism organizations would not support a federal shield. To back off now from embracing that First Amendment right is a mistake.
Finally and perhaps most important is that throughout the history of journalism in this country and the world, people who seek the truth and report it have been put upon by government and others in all sort of ways from death, to jail to smear campaigns and more. Yet, journalism and journalists have survived and the public has been served. This sacrifice on the part of journalists comes despite working in an industry known for its low pay, terrible hours and the ability to interfere with family and social life. And the list goes on and on.
I have faith in the American public despite its often and sometimes strong disrespect for the news media. I do not think it will tolerate over the long haul government jailing, fining or otherwise putting upon journalists who serve the public good by reporting on the ills that government and others foist on the people.