There is a definite need for a federal shield law, to protect journalists from being held in contempt for not revealing their sources. A shield law is a statute that protects journalists from being forced to reveal confidential sources, from which information has been received. There are state shield laws in place right new for many states within the United States, however there are 15 states in the United States that have not yet adopted any type of shield law protecting against being held in contempt (Shield Laws).
There are some great reasons why a federal shield law is a good idea. One main reason for the law is to create a set of rules for reporters to follow when gathering information for a story. These rules would help keep reporters from being held in contempt for not abiding by subpoenas. Another aspect of the shield law is that it would stop some confusion that occurs with the many state statues. The need for a federal shield law is there, but the question is how much should journalists be protected?
Should journalists be able to gather information and be completely protected when the need arises for government officials to know the source of this information? Or, should journalists be forced to comply with the government and hand over all sources and findings? There are many different state statutes regarding the confidentiality of a source. A problem with these statutes is that they cause a lot of confusion. Does the statute apply for a crime that occurs in that state, is the statute pertaining to where the person lives who wrote the story, or does it apply to the state that the confidential source resides?
In the past few years, the internet has become a main source of information for our citizens. Journalists who write and post on the internet can also have confidential sources and this causes some major confusion when the stories written are from many different areas within the United States or even from other countries. People in many different places read information on the internet. Controlling internet stories can become much easier with a federal shield law.
If a federal shield law is in place then there can be guidelines to show reporters what they can and cannot do and how these guidelines should be followed when using the internet to write stories. As the world advances in technology such as the internet, the law should advance for these changes as well. With new and improved matters of reporting and receiving information, the laws that pertain to them should catch up. The job of reporters and journalists is to gather information to use in a story. This information is received through research and speaking with individuals who are involved or have information that pertains to the story.
Many times the story that is to be published is a touchy or sensitive subject and many people who have pertinent information in the story are not willing to talk because of fear that people will find out. At this point the journalist needs to decide if the material is important enough to give the source a promise of confidentiality. The reporter is not able to print it within the story or anywhere in the paper and this forces the reporter to be in an uncomfortable situation if and when the government needs to know the name of the source.
There are many different reasons for this confidentiality to be broken. The person could be giving information about a crime for example, and this would cause police officers to investigate. For the officers to begin the investigation they would need to talk to this confidential source. Upon giving up the name of the source the reporter can be sued civilly by the person who was to be kept private. So, while reporters would be more than willing to give up the name of a person, they are forced to keep it a secret because of the fear of being sued by the source.
Reporters and journalists should not have to be put in this situation and a federal shield law would help. There should be guidelines to what kinds of information can be subpoenaed and what cannot. Things like, if the information pertains to the health and well being of an individual and also if the material involves some sort of felony that has occurred. There have been a few main cases that have dealt with suppressing news sources. The first one is Branzburg v. Hayes, took place in 1972 and involved a reporter from a Kentucky newspaper named Paul Branzburg.
Branzburg wrote an article about drugs and drug use in his area and in doing so, he came in contact with two locals who had created one of the drugs in particular and also used the drug. In gathering the information for his story, Branzburg promised the sources that he would not reveal their identities. He was eventually called to testify about the sources in which he refused (Shield Laws, Par. 3). The ruling for this case in the lower courts stated that there was no privilege under the First Amendment for journalists to refuse to reveal the name of confidential sources or other information when called to testify before a grand jury (Pember).
Another major case was Caldwell v. United States. The case was about a reporter from the New York Times who was subpoenaed to appear before a grand jury investigating activities of the Black Panthers. Caldwell had become a close confidant with some of the members and had written a few stories involving the members. Unlike the Branzburg case, the U. S. Court of appeals ruled that forcing the reporter to appear before a grand jury could damage the public’s First Amendment right to be informed.
The court ruled that the journalists had a qualified privilege that protected them when they were called to testify and that the government must show a compelling need for the witness’s presence to overcome this privilege (Pember). After the rulings of these cases, the U. S. Supreme Court Justices decided there was a need for them to become involved. Four justices ruled there was no First Amendment privilege for reporters called to testify before a grand jury. Associate Justice Byron White wrote, “The use of confidential sources by the press is not forbidden or restricted.
The sole issue is the obligation of reporters to respond to grand jury subpoenas as other citizens do and answer questions relevant to an investigation into the commission of crime. Citizens generally are not constitutionally immune from grand jury subpoenas; and neither the First Amendment nor other constitutional provisions protect the average citizen from disclosing to a grand jury the information that he has received in confidence,” (Pember). The other justices had different opinions about the ruling; they believed that reporters should be protected by a privilege that is qualified, but not absolutely.
They said that the reporter should be able to protect the identity of the confidential sources unless the government can show that there is a probable cause to believe the reporter has information that is clearly relevant to a specific violation of the law, that the information sought cannot be obtained by alternative means less destructive of the First Amendment rights, and that the state has a compelling and overriding interest in the information (Pember). In the end the justices came to a 5-4 vote saying that reporters do not have First Amendment protections from giving the names or information when subpoenaed by courts.
The U. S. Supreme Court recognized that when reporters gather information for the news they should not be without some First Amendment protections. The main aspect of the federal shield law that needs to be figured out is the form and extent of the protections against subpoenas. For reporters to do their job to the fullest potential they need to be protected. Many different cases throughout history have shown judges in lower courts and the justices of the U. S. Supreme Court that there needs to be some sort of first amendment protection given to reporters.
If a federal shield law is not accepted, then people will not be willing to offer information and reporters will be extremely limited in what they publish. The public will be cut off from important, newsworthy material. Confidential sources have important information that they are not willing to give unless the confidentiality promise is there. Works Cited A Flurry of Subpoenas. Retrieved 2 Nov. 2008 Pember, Don R. Mass Media Law. McGraw-Hill, 2007 Reporters and Federal Subpoenas. Retrieved 7 Nov. 2008 Shield Laws in the United States. Retrieved 26 Oct. 2008 The First Amendment and Reporter’s Privilege. Retrieved 26 Oct. 2008