Federal shield law should not define journalists

Congress is currently considering the Free Flow of Information Act of 2005, commonly called the "shield law." The intent of the law is to make it possible for courts to subpoena journalists' sources under certain urgent conditions, while protecting the journalists from prosecution for refusing to reveal their sources under any other conditions.

According to an October 10, 2005 report on the Editor and Publisher web site, some journalists are concerned that the law would be a step toward government licensing of journalists - anathema in free societies. Indeed, the law does define a "covered person," which is basically someone working for a company in the journalistic field. Defining who is a journalist, to the extent that journalists are recognized as having certain rights or privileges, seems equivalent to licensing them. And this bill does indeed treat journalists as having rights which the rest of us do not have.

An example of a person who might not be protected by this law is a "blogger:" someone who maintains a "blog" or web log on the internet. According to the article, Senator Richard Lugar said that bloggers would "probably not" be considered journalists under the law. If that is the case, they could be thrown in jail for refusing to reveal the source of a story, even though there may be no compelling law enforcement or national security reason for the demand. A "real journalist," on the other hand, would be immune to such treatment.

The whole problem arises from the assumption that journalists have some rights that other Americans do not have. Indeed, Senator Lugar said that "what we will come out with says there is something privileged about being a reporter." Given that rights are granted by God and not government, to people, not only to journalists, there can be no such differential rights.

All people who are engaging in journalistic activities, whether or not they may be defined as professional journalists, have the same right of freedom of the press. The First Amendment doesn't talk about journalists at all. Rather it refers to press freedom in the same way that it refers to every other right of every American.

Rather than defining who is a journalist, the law should define which activities are protected for everybody. A writer of letters to the editor should have exactly the same protection under the law as a reporter for the New York Times. Congress should not pass this legislation in its present form.