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Media Shield Law Again Proves Elusive

Why Do Efforts To Protect Journalists From Subpoena Keep Failing?

"The way we exchange information and ideas with one another is transforming, and the debate that has occurred so far doesn't seem to take adequate account of those changes." -- Scott Gant

The Senate on Wednesday refused to consider voting on a federal shield law, a measure that would protect journalists from being forced to turn over their notes and work to courts if subpoenaed.

Shortly after the bill was voted down,'s Amy Harder spoke with Washington attorney Scott Gant, author of the book "We're All Journalists Now" as well as a Los Angeles Times op-ed piece on the shield law published Monday. Gant discussed why there is to date no federal shield law, what defines a journalist and why people outside of journalism should care. Edited excerpts follow. Visit the archives page for more Insider Interviews.


Q. What are the major events that prompted Congress to consider a federal shield law now?

Gant: The origins of the current effort to procure passage of a shield law largely, but not entirely, date back to the events related to and arising from the disclosure of the fact that Valerie Plame worked for the CIA.... There were numerous journalists who were compelled to testify both before trial and after Scooter Libby's trial, and as an outgrowth of all this, [former New York Times reporter] Judith Miller ended up going to jail for 85 days.

Those were the events that were the primary impetus of this round of efforts, but there have been dozens of efforts to pass shield laws over roughly the past 80 to 100 years.


Q. What was it about the most recent bills, both the House and Senate versions, that helped them make it further than past attempts?

Gant: The fact that people have been going to jail. There have been other instances of journalists, including in recent years, going to jail, but I think that that has brought home the reality that this can happen.

There was an assumption -- that was partly factual and partly imaginary -- that there was an understanding between journalists and prosecutors and judges that journalists would very, very, very rarely be forced to disclose the identity of their sources and other information related to their newsgathering, and that they would exceedingly rarely be punished for refusals to do so. And to the extent that there was truly an understanding, it's broken down somewhat. And, to the extent that it was imaginary -- that fact... has become exposed.

Q. What kind of environment, politically, does the shield law find itself in right now?


Gant: As far as I can tell, there isn't a great public groundswell of support for a shield law. I don't think it's an issue that anyone, whether at the national level or the level of Senate races or congressional races, will be campaigning on. Obviously, the vote in the House tells us something about the sense of the representatives about where their constituents are at the 10,000-foot level, but I don't think this is an issue that is likely to move voters at the grassroots level.

There are obviously interest groups on both sides, particularly on the side of proponents of a shield, who have been working diligently behind the scenes to try and enact it. The fact that the bill has progressed as far as it has is a testament of the success, albeit limited, of those efforts.

Q. What's your reaction to the Senate refusing to consider the shield law Wednesday?

Gant: Not surprised. My impression is that now that it's done until after the recess -- and I think it's unlikely that it'll come up for a vote before the presidential election given what transpired -- but I might be wrong, of course...

Q. What are the arguments proposed by those in favor of the bill?

Gant: The most succinct way to describe it is that there's a premise, which I think is undeniably true, that journalism is vitally important. There's a further premise that citizens benefit from having a vibrant and free press.... The goal of this legislation and similar statutes and laws at the state level is to try and keep the wheels going, to make sure that information that people need to make good decisions is available to them, and the premise is that that is best accomplished by not hauling journalists into court and making them reveal information about their sources or their newsgathering activities or the fruits of those activities.

Q. What are the arguments proposed by those against the bill?

Gant: Those are many and more complicated. The Bush administration has most clearly articulated its own objections, and those have come in many forms, including testimony from Department of Justice officials going back several years and, most recently, to a wave of letters that were sent to Senate leaders by administration officials, including the secretary of Defense, attorney general, the secretary of the Treasury and others.

They basically argue that there are national security and law enforcement efforts that will be set back by having a shield law. And it's fair to say that what they would like to do is to retain discretion within the executive branch of the government in deciding whether and under what circumstances to force journalists to disclose information rather than having that discretion removed from them by a statute, which gets interpreted by judges.

Q. Getting into the details of the Senate bill, what portions of the bill are garnering the most attention and debate in Congress?

Gant: Clearly, the provisions that have garnered the most attention are those that relate to the objections that have been advanced by the Bush administration -- i.e., those related to national security and law enforcement efforts. There has been a lot of back and forth between the administration and congressional leaders to try and address those concerns. Obviously, they have not been fully addressed to the satisfaction of the administration to date.

Q. What portions of the bill do you think should be the focus of the attention but have been overlooked?

Gant: First, I don't mean to suggest that the concerns about law enforcement and national security are or should be subordinate to questions about who is covered by the statute and how journalism is defined.... My view is that you need to focus on all of them. I've focused my writing and analysis, with respect to the shield law, on the question of who is a journalist under the statute because a) that has received little attention and b) that is an area I've given a lot of thought and study to.... There has been insufficient public attention and debate to the question of who should be covered by the statute.

Q. Why is that important?

Gant: Because journalism is changing in important ways. The way we exchange information and ideas with one another is transforming, and the debate that has occurred so far doesn't seem to take adequate account of those changes... As a general matter, I have concerns about limiting a privilege based on the idea that someone has to be engaged in the activity for financial gain in order for it to be protected. And I think that is -- to the extent that I have objections to the version that was passed by the House -- that's my principal objection.

Q. How do you see the Internet playing a role in the debate surrounding this bill?

Gant: What the Internet and Web have done is they have enabled virtually anyone to inexpensively and easily disseminate information and their ideas, opinions and analysis to the rest of the world. It used to be that you had a relatively limited number of people and organizations who could distribute information and ideas to the public, and now almost anybody can do that. So it's largely removed the gatekeepers and put people in a position to engage in journalism-like activities when they didn't have those opportunities before.

This is not to say that we should, as a subjective matter, view everyone as doing the same quality of work, as being equally worthwhile or trustworthy.... But, when the government is in the business of allocating rights and privileges, as it would be if a shield law is enacted, as it has been at the state level, then we need to ask ourselves a different set of questions. It's not a matter of who, subjectively, we think is a journalist whose work we would want to read or rely on, but it raises broader questions. And it's dangerous if we start to import our subjective views about worthwhile-ness and trustworthiness and reliability into laws that allocate rights and privileges to people.

My concern is that there is much journalism that I think anyone would acknowledge as worthwhile that is not undertaken necessarily for financial gain. And one of those changes in journalism as a result of the Internet is that you have many different types of journalism endeavors, people coming from all different backgrounds, not necessarily doing it on a full-time basis, based on a profit motive. We ought to recognize that this change is taking place.

Q. You mentioned that many state-level shield laws are currently on the books. Can you point to one that offers a good way to define a journalist?

Gant: I don't want to endorse any of them in particular, but there are statutes -- like, I believe Nebraska's did not have any limitation based on whether one was engaged in the activity for financial gain and simply defined those covered as anyone engaged in procuring, gathering, writing, editing or disseminating news or other information to the public. And I do not believe that it had any limitation like the congressional version, which said that you had to be engaged in the activity for a substantial portion of your livelihood or for a substantial financial gain.

Q. Why do you think this gap exists between state- and federal-level protection?

Gant: The stakes are much higher when you have a federal law. Many but not all important cases occur in federal court. Most but not all high-profile significant public law enforcement activities occur at the federal level. The kinds of cases where you're likely to have this [issue of a shield law] arise, but by no means all of them, tend to occur in federal court. And of course the national security concerns that are voiced by the administration are really not an issue at the state level.

Q. Why should people outside of journalism care about a federal shield law?

Gant: It's for the reasons both that the proponents and opponents have advanced. This is not the most important issue before the nation at the moment. But it's hardly insignificant. And it would have and could have an impact on the lives of everyone, insofar as it could affect the way in which we gather and get news and information.

If the proponents are right, and it really will improve and facilitate the free flow of information, that is something that will benefit everyone. On the other hand, if the opponents are right, and this will be a setback to national security and law enforcement initiatives, then that's something that's obviously of concern, too.

There are other people who oppose a shield law on the basis of different principles -- that they don't think journalists should be elevated above and treated differently than any other people. If you approach journalism the way I do in these contexts, from a functional standpoint rather than as a proxy for who the employer of the person is, I think that criticism largely withers away. There is a number of different bases for both opposing and supporting the shield law. And for the reasons identified by critics and supporters -- those are the reasons why the public in general should be interested in the issue.

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