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The Need for a Federal Shield Law

Posted on May 19, 2013 at 9:30 PM


As the editor of the Albion Advertiser, I can remember one occasion in which I placed my notes and source information in our safe in a sealed envelope with a date that was exactly one year and one day in the future. I remember one other time in which I willfully destroyed my own notes for an article.

Both actions were taken in the possible event of a libel suit. The notes in the safe would show that I had not willfully or with malice made an error in my reporting or editorial judgment. No one can subpoena notes that simply do not exist (please keep in mind, no one had suggested they might sue when I decided to destroy the notes – it would be illegal to destroy something asked for by a court).

Each time, I made these decisions based on either my understanding of media law or at the advice of a more experienced journalist.

I’m sharing this because the Department of Justice has recently informed The Associated Press that it obtained two months of phone records of reporters and editors who worked at New York, Washington and Hartford, Conn., AP offices and for the main number for the AP in the House of Representatives press gallery. Information from more than 20 separate phones lines was seized, representing information collected by more than 100 journalists and their sources.  The Justice Department has not given justification for its actions but The AP suspects it may be related to a “CIA operation in Yemen that stopped an al-Qaida plot in the spring of 2012 to detonate a bomb on an airplane bound for the United States.”

Why is this important? This has a chilling effect on a reporter’s ability to gather and report the news and is likely unconstitutional under the First Amendment. Additionally, this falls terribly in line with behavior during the past several years in which reporters and editors have been sued or found in contempt of court because they refused to divulge their sources or notes.

The solution is a strong federal shield law, such as the one that has been promoted by the Society of Professional Journalists. Most states already have shield laws, with varying levels of protection for reporters and sources. But federally, even with the power of the First Amendment in place, journalists lack protection in doing their jobs: acting as the watch dogs of government and informing the electorate to whom that government is responsible.

Sadly, the general public is disinterested in this, even with the Justice Department is collecting information that it does not have a right to obtain. But the reporter who chooses jail over handing away her notes and sources is protecting the First Amendment, even from her own government. A federal shield law offers her the protection needed to inform the electorate, without chilling out and driving away the sources needed to effectively do her job.

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