Shield Law 101:
Frequently Asked Questions
What is a shield law?
A shield law provides statutory protection for the reporters privilege legal rules which protect journalists against the government requiring them to reveal confidential sources or other information. Sometimes an overzealous prosecutor or law enforcement agency will subpoena a reporters notes or the identity of a source to aid an investigation or prosecution. A shield law would allow leakers and sources to feel safe approaching journalists to expose wrongdoing in society, similar to providing priests and psychiatrists the ability to provide some confidentiality to conversations, without concerns that a judge would require their identities or the information to be turned over to the federal government unless under very limited circumstances. The District of Columbia and 49 states have some level of protections from local and state agencies. No statutory protection exists at the federal level.
Its time to raise the shield!
Forty-nine states and the District of Columbia provide journalists with a reporters privilege, protecting them if a state government seeks to make him or her reveal confidential information, including the identity of a source. Some states have statutes, known as shield laws, and some provide the protection through case law.
There is absolutely no protection at the federal level. Its time to pass a federal shield law. Learn more and pitch in right here.
H.R.1962 Free Flow of Information Act of 2013
S.987 A bill to maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media
Amended language for S.987
Protect reporters, and protect everyone
Media deserve guarantee of federal shield law
Freedom of the Prez: On shame and shield law
SPJ president on reintroduction of Shield Law: Let's get it passed
SPJ members debate merits of the proposed law
FOI FYI Blog: Shield law posts
What is a qualified privilege?
The key U.S. Supreme Court case Branzburg v. Hayes in 1972 found that a journalist does not have an absolute constitutional right to refuse to reveal sources in court. However, the court did acknowledge that government must convincingly show a substantial relation between the information sought and a subject of overriding and compelling state interest. In other words, its a balance, and the government needs to have a good reason to force journalists to cough up their notes or sources. Because case law has not been particularly strong, many states have passed shield laws to provide further protections for journalists.
Why do we even need a shield law? Whats the problem?
Government officials have attempted to jail and even bankrupt journalists to force them to reveal their sources or information they have gathered. A study conducted by Brigham Young University law professor RonNell Andersen Jones, for example, found that in 2006 alone journalists were served with more than 7,200 subpoenas from state and local governments, and about 800 from the federal government. Some news organizations are served more than 25 times a year, and most newsroom leaders perceived a continual increase in government action to compel journalists to talk. In 2006, for example, blogger Josh Wolf of California was jailed for 226 days because he wouldnt hand over video he shot while covering a protest.
What are the downsides of a federal shield law?
Several issues have been raised with the proposed federal shield law, and in shield laws in general:
Whats to stop hiding journalist from withholding information that could harm national security? This was particularly sensitive following Wikileaks document releases. Previously negotiated federal shield law bills provided exceptions by which the government could obtain information when a threat to national security is involved.
Why should journalists get special treatment? True, journalists have few special privileges over the average citizen (e.g., fee waivers and expedited review for Freedom of Information Act Requests), and philosophically its a slippery slope to ask for special treatment for journalists. But the protection isnt for the journalist; its really protection for the source. Some protection is warranted from a practical perspective if sources are to feel safe coming forward.
How do you define a journalist? This is a difficult question. Once a journalist is defined then before long the government might start raising the idea of licensing journalists, which can lead to a form of censorship that is found in other countries. In general, SPJ favors a functional definition in the shield bills that defines journalism rather than journalist. In other words, a definition that provides protection to those who commit acts of journalism, rather than focusing on a job title or employment status.