Privilege for whom?

I am confused about shield laws. That alone is heresy for a journalist; we’re all supposed to be all for them, right? But I come at this from the perspective of those outside the castle — bloggers and just citizens — and so I don’t think it’s as simple as it seems. And that’s what I told the producer at Newshour when she called to ask my stand. They’re having me on anyway, as a heretic.

I don’t want to see an official definition of who is a journalist, not only because this is likely to exclude bloggers but also because official status can be given and can be taken away. Danger lurks there.

So why don’t we define journalism, for this purpose, as I usually do: as an act? Perhaps. But there, too, we risk excluding the person who commits a major act of journalism but once.

The third possibility is to define, instead, the quality of the whistle blown: this is so important to society that it’s worth protecting the source so we could get it. Of course, this puts the power to decide what’s important in the wrong — that is to say, official — hands.

So I don’t know where I end up. I confess my confusion.

The added problem is that there has been abuse of the system — or rather, the code, I suppose — on many sides. Journalists have overused unnamed and confidential sources. We should be in the business of revealing, not keeping secrets. In some cases, we don’t reveal sources just because we’re too lazy to get the named source or because we’re buddy-buddy with the source (that’s the way the tit-for-tat system works); in other cases, the disclosure is not worth the breaking of the compact that really matters, the compact we hold with our public: It is our job to tell what we know when we know it. It is not a privilege to hold secrets. It is a curse.

The sources use this as well, of course, hiding behind their own anonymity so they can spin spin, float balloons, hit and run. And we let them. We allow ourselves to be used.

The Newshour producer asked me whether I was uncomfortable with reporters, like Russert, testifying at trials, like Libby’s. I hesitated. I hate lawyers and lawsuits so much, I react with reflexive discomfort. But I suppose what makes me legitimately uncomfortable is that this becomes yet another way for reporters to be used: If you report something critical of someone with power or lawyers, you can end up sitting in court. That’s particularly uncomfortable for citizen journalists who don’t have a million dollars of The Times’ to blow on legal fees. The Plame prosecutor has said that reporters should be called as witnesses only sparingly. But, once more, we have the problem of an official defining what sparing means. And besides, reporters may find themselves in the odd position of not wanting to know something because it puts them in personal peril: We turn into a profession of Sgt. Schultzes. We know nossing!

On the other hand, it can’t make me uncomfortable to see journalists in the same role as any citizen. Didn’t an editor at the Online News Association almost tearfully plea that we shouldn’t call bloggers “citizen journalists” because journalists are citizens, too? Indeed. Journalists are citizens and need to stop living apart from the community but be again a part of it.

At the end of the day, transparency is still the best policy. The less we find ourselves in the position of keeping secrets, the better we serve our public. Do some disclosures, some scandals, some whistles blown merit getting into this mess of keeping confidentiality? Yes. Do we still need investigative reporting that traffics in such secrets? Yes. But that doesn’t mean it’s not a confusing and perilous mire.

: See also my Guardian column on the changing nature of secrets online.

  • Doctors and priests and lawyers also have some sort of privacy privilege. They are still supposed to report crimes in certain cases, however.

    Maybe we should all declare ourselves priests and say we heard from our unnamed sources in “confession”.

    The real issue is that reporters are lazy, or pressed to produce more output than they have input for. So they get a couple of anonymous quotes, or make them up as “some observers say,” and churn out a piece with no real information.

    Many of the trade magazines I read do surveys each week of industry insider’s opinions. They then turn this into a news article complete with charts. It fills space, but has no content.
    A poll before Galileo would have found 100% of the people wrong about the center of the solar system. So much for public opinion.

    The broadcast media is even worse with 168 hours per week to fill on each channel. Amusing talking heads (“pundits”) that can talk interminably at a moments notice are in great demand (sorry Jeff). One good investigative piece may take months to develop, this is not cost effective to the media giants.

    Perhaps the news media should just play music until they have something to actually report. Giving a platform to political operatives or government insiders who are unwilling to state things in the open just fosters this sloppy “journalism.”

    I thought the Times was going to take a stand against this a few months ago, what happened?

  • Jorge

    I would as soon have my whistle blown than my cover blown.

  • I once asked Shel at Naked Conversations what would happen if every business owner/executive everywhere at once allowed all of their employees to blog with zero restrictions — none, of any kind. Admittedly, it’s a rather academic question, but I’m going to ask the same sort of question here: What if every journalist everywhere stopped using any unnamed sources of any kind anywhere for any reason? Would the world really stop? Would, as is frequently argued, the access to information completely dry up? I don’t think it would. I’ve been asked to write five f*#@$%g articles per day by some editors. Other times, I’ve been given two hours to write an article that should take five days. I keep coming back to the notion that if you want your newspapers, etc. to produce junkbond/IPO type profits you’re going to squeeze in ways that make good journalism difficult and experiments like the one I suggest impossible.

  • One interesting case for the blurred distinction has to be Keith Cowing of NASA Watch, who usually gets NASA PAO invites to stuff, but sometimes, if he’s really pissed appropriate NASA executives off, gets shunted aside in favor of established media.

    If a media-hungry, purportedly tech-savvy organization like NASA can’t figure out how to treat folks who don’t produce stuff on dead trees or via EM waves that carry sound and images, it’s hard to expect the greater world to do so…

  • Liked the ‘tony soprano’ point – we’re not defining any one that produces a piece of newsmedia as at that time and place a protected or shielded persona, if we give a shield law, are we. Among several points, something worth taking into consideration.

  • jedrury

    I watched you on the Newshour; your comments were far more
    thought-provoking than the dull platitude spouting MSM types.
    Robert Ray however raised a good point about Robert Novak’s success
    in not revealing his sources by having a private discussion with the prosecutor. The self interest of the media does not equate to good Federal policy. Shield laws are called the panacea by the MSM, when in fact as you pointed out that the shield will surely be enlarged by the courts to cover bloggers. It is hard to justify the invocation of a new evidentiary privilege because the MSM wants it “to their job,” when the pursuit of civil/criminal justice must trump the rights of journalists to demand cover for their sources.

    Doyle MacManus’ quote “good cases make bad law,” is ass-backwards, the actual quote is that “bad cases make bad law.” In this bizarre case, the press has brought this on themselves. Now they are screaming to edge their way out of their dilemma.

  • Jim S

    Would all news sources dry up if there were absolutely no ability for journalists to have secret sources? No. Is it likely that some very important stories would never come to light because a potential whistleblower would legitimately fear for the destruction of their livelihood and that they would come under vicious personal attack? Absolutely. Jeff’s idealism and naivete are to be admired in some ways but he and those who agree with him should at least be honest enough to admit that there would certainly be a price.

  • Jim, I have said precisely that more than once.

  • jedrury, jeff didn’t say that “the shield will surely be enlarged by the courts to cover bloggers,” and I doubt he believes that. No court has even hinted it’s leaning in that direction.

    but jeff, I think your tony soprano analogy was misguided. That’s basically equating bloggers with the lowest miscreant among us and saying, ‘Well, if he deserves the protection, then none of us do.’

    Wrong. The First Amendment applies to all of us, miscreants included.

    And press protections should apply to anyone who is practicing journalism, miscreant Tony Soprano bloggers included.

    Your gut instincts about citizen journalists deserving the same protections as MSM journalists are dead on. So connect the dots and follow it to its logical conclusion.

  • Got some news for you: in a decision that EFF lawyers past and present recently celebrated, the Delaware Supreme Court defined blogs, along with chat rooms as “not a source of facts or data upon which a reasonable person would rely.” Oh well.

    So maybe so-called citizen journalists just won’t bother with blogs. The guys sued by Apple weren’t really bloggers, after all.

    And consider also that there are some citizen journalists who feel more affinity for the values of public journalism, where serving society trumps the traditional journo values of polishing up a story and buttering up your sources. These folks are doing public research and who do it to build a public case, and I got the feeling that they’d be the first to testify if their evidence were subpoenaed. One could have applied the values of public journalism and advised Judith Miller to testify short of trying to get as good a deal as Novak got.

    In the end, it’s statements like these which constantly disappoints me, as it should others, in Jarvis’s punditry: “Of course, this puts the power to decide what’s important in the wrong — that is to say, official — hands.” The whole basis of our democratic society is that we place decisions in the hands of judges (as you say, official).

    You might have problems with what the Delware judges ruled, though. I’d suggest petitioning the EFF– or the MBA. You’ve said don’t want to define blogs. But it will be defined for you, then.

  • Thank you for another wonderful writing, and thank you for mentioning the fact that lawsuits, and such, can be used to harass, bankrupt, and therefor censor news.
    It’s bad enough worrying about idle threats, but lawsuits and court appearances can be real, and devastating to any journalist, corporate or independant.

  • J.D.: Yes, I went for the gag, which obscured the point: if miscreants misuse this to a great extent then they will, as our teachers used to say, ruin it for everyone. That’s theproblem of a privilege not being a privilege because everyone has it. So then you can no longer define the shield by the person and have to define it by one of the other two limitations… and they’re all difficult.

  • And Jeff, who’s set to benefit from this “confusing and perilous mire”? Like you suggested on the NewsHour, it’s the latest incarnation of what we have always known as the bureaucrat manifesting itself today in the form of a prosecutor.

  • AlanC

    This is getting perilously close to tyranny. Whatever happened to the first amendment? Shouldn’t a computer now be classified as a “press”? One person on a laptop can reach many more people than Ben Franklin would have dreamed possible.

    We are seeing here the beginning of an unholy trinity aimed at keeping the plebs in their place. Government, Reporters and the Media Industry love the idea of a monopoly on information. Right now, “reporters” are becoming PART of the crimes that they want immunity from. How can Libby craft a practical defense if the other side of the, he said / he said, are reporters with special privleges?

    How in the name of all that’s holy can you be uncomfortable with Russert on the stand WHEN HE’S THE ONE MAKING THE ALLEGATION THAT LIBBY LIED! As far as I can see, there is just as much evidence that Russert lied to the GJ as that Libby did. Why isn’t he in the dock?

    If the politicians continue to pass laws on the order of McCain/Feingold and get into the “licensing” of journalists, and the courts go along. THERE WILL BE NO ONE LEFT TO RAISE AN OBJECTION with out a stake in the game!

  • Well, I think the answer is very simple- The government should set up a compulsory licensing system for journalists. If you want to be a journalist, you simply go down to town hall, and register.

    Of course, we need to be careful- not just anyone should be allowed to be a journalist. We’ll probably want to screen people pretty carefully- you don’t want excitable people saying inflammatory things, and then hiding behind a shield law, do you? We’ll probably need to do a battery of tests to make sure that you’re mentally competent, stable, and not a congenital liar- after all, if the government is granting you freedom of speech, there is an obvious interest in making sure that what you say so freely is accurate…

    See, if we don’t have the government decide who is a journalist and who isn’t, then we’ll have to extend the same free speech privileges to everyone- and then where will we be?