Shield Laws: What Are They Good For? Absolutely Nothing

Shield laws protecting journalists from a legal obgliation to reveal their sources are good for nothing, except selling stories that are devoid of meaning by putting journalists above the law.

Many journalists think a shield law is necessary because sources won't agree to speak unless anonymity can be guaranteed; especially when those sources are tied to the government, this is, the theory goes, important to a free society that watches its government.

But that line of reasoning is so full of holes it's hard to know where to begin. But I like a challenge, and I'll start with the nature of anonymous sources -- the very thing these laws are meant to protect -- because it is widely misunderstood.

Anonymous Sources Are Damaging

When the press uses an anonymous source, without any independent verification of the information, they are asking us to do one of two things: either trust the press, or ignore the story. As they are publishing the story, clearly they don't want us to ignore it. They want us to trust them. Can we?

Before Watergate, the press used anonymous sources sparingly, and then, pretty much only when the information they gave could be corroborated. Contrary to popular belief, that is how the Washington Post used Mark Felt (a.k.a. Deep Throat) in the Watergate scandal: he fed them information, which they used to uncover hard evidence that could independently verify what he told them. So the public wasn't asked to simply take the word of an anonymous source, or to blindly trust the paper: readers were given hard evidence that proved what the source was saying was accurate.

Since Watergate, however, journalists have increased their use of anonymous sources without regard to such standards, without obtaining or providing verification, to the point where such practice is the norm. We have Judith Miller feeding us, via the New York Times, many false stories about WMD in Iraq, with no verification, which only later, after the invasion, the Times admits were false. The editors, the publisher, and most of the readers didn't demand verification.

Yet still -- despite the personnel changes and public scandals at the paper -- not much has changed. The Times hired a Public Editor, Daniel Okrent, to help examine and facilitate change, and he proposed actual policies governing the use of anonymous sources, which would make them far more rare and reliable. Instead, anonymous sources were used more, with no substantive changes to increase their reliability. There's no reason to believe anonymous sources in the New York Times today are any more trustworthy than they were when Judith Miller wrote her false stories.

It's easy to see how this is damaging to society. Anonymity is often abused by the sources, and the information is incorrect: for example, the White House leaks a trial balloon and denies it later, under the cloak of anonymity. As the public can't verify the information, they are asked to simply take the paper's word for it, despite the fact that it very well could be wrong.

This lowers the trust we have in the press, because not only could they be wrong, but we all know they could be wrong, and they know we know they could be wrong, and yet they still ask us to believe it is true. Use of anonymous sources in this regard is a de facto violation of the public trust, and helps no one, except those looking to sell a story.

Shield Laws Don't Protect A Public Interest

No one I know, who is outside of the journalism business, really thinks the widespread use of anonymous sources such as we see in the Times is useful or good. The question we should be asking is whether this is a practice worth protecting: in what way is this useful to society?

Journalists will most often reply that without legal protection for anonymous sources, those sources will dry up. And before we can scoff at that and say what a good thing that would be, they quickly add, "because sometimes, there's a good story that the public 'needs to know.'"

The first claim is false, and self-evidently so. All one needs to do is look at places that have no shield law protections and see if there are a lot of anonymous sources available. And one is readily available: Washington, DC itself.

The District is so filled with anonymous government sources that visitors are offered complimentary ones as they cross the Potomac. Not a high-level Pentagon or White House source; for those you still need a press credential. But a family of four from Maryland can get a second-tier source from one of the minor departments, like HUD or State.

And yet, DC has no shield law. How could this possibly be? In part, it is because courts are loathe to send journalists to jail: they balance the importance of the information and the case against the importance of allowing the press to be independent. But there are scores of anonymous sources used every day in DC, and only a small percentage of journalists are ever subpoenaed, simply because the information from the anonymous sources isn't important or criminal (which raises the question of why the press bothers to promise confidentiality in the first place, let alone why they want protection for such a promise).

Most states do have shield laws, but in many of them, they do not protect sources in a criminal investigation. In California, Judith Miller may not be forced to tell who told her that Apple was coming out with a new iPod, but she likely would be forced to say who told her he saw O.J. Simpson outside his wife's condo just before midnight the evening she and her friend were killed.

And this brings us to the second claim: the public's "need to know." There is no doubt that the the public has the right to know as much as possible about what goes on in government; it is government of and by the people, after all.

But the public also has the right to information about a crime, which is when subpoenas for journalists come. So obviously there's tension here that must be resolved, and the journalists want it resolved in a way favorable to them not being held accountable by the government. But their interests are not necessarily the public's.

Again, the incidents where something is really important, that the public can only get access to by a promise of confidentiality to an anonymous source, are few and far between. Even Watergate is a poor example: we know now that because of who the source was -- the No. 2 man in the FBI -- there were plenty of legal channels he could have gone through, instead of leaking to the press.

Even assuming Felt couldn't have gotten the story out any other way, the question remains, which is worse? Too many anonymously sourced stories, many of which are wrong; or too few, missing some important and true stories (and risking jail time for those who do tell the stories)? Do we favor having stories that are false, or missing stories that are true?

But don't be too quick to answer. Remember Judith Miller. Her false stories, some claim, helped lead us to the Iraq war. Would we better off without her stories on Iraq, or without Woodward and Bernstein's stories on Watergate?

Seeking Alternative Solutions

Perhaps we don't have to choose, though. With shield laws, we get both kinds of stories, and there's little that can be done about it. But without shield laws, we can take steps to encourage the true stories, while diminishing the false ones.

The key, as in so much of problem solving, is to examine the related factors and their effects. If you have too much crime, you look for what causes and enables it, to diminsh those factors; at the same time, on the other side of the equation, you look for ways to better enforce the laws.

Much of what has gone on so far is looking for better "law enforcement": protecting the practice, changing newsroom policies, and so on. Some of those efforts are good, some are not. But there are other solutions too: if you decrease the need (perceived or otherwise) for anonymous sources, you decrease the press's reliance, and the public's acceptance, of them.

The best way to do this is to strengthen "government in sunshine" laws: require much more of government to be conducted in the open; require immediate online posting, in open formats, of government documents; enact stiff personal penalties for noncompliance; ensure the protection of whistleblowers for outing criminal behavior. More information will be made public, and what isn't (that legally should be) will constitute a crime automatically triggering whistleblower protections, so anonymity is not necessary.

Biting The Hand That Feeds

But the press don't like this option. It scares them, because it results in diminished control by and access for the press. They like being the gatekeepers, the people who get to rub elbows with the politicians and technocrats, who get to interpret the information for the public, and put their insightful spin on the story.

And the government loves it, because they get to manipulate the press, and thereby the public, without being held accountable.

This is obviously no good for the public, and not just because we have to go through the Press Priesthood to get our information, without the opportunity for independent investigation: it also skews the reports, because the journalists have to genuflect to the government officials to get access in the first place. We see this every Sunday morning, when congresspeople go on Meet the Press, and Tim Russert asks tough questions, but makes sure not to get too tough, lest the congresspeople don't come back next time.

It's the scariest part of all this: if the press is watching the government, but have the same interests as the government, who is watching the press, apart from Public Editors the press simply ignores anyway?

And shield laws only magnify this problem further by requiring the courts and legislatures to define who is, and is not, a journalist, and thus deserving of special protection. It is quite likely that journalists of all stripes will be less likely to be critical of a politician or judge who is reviewing whether or not to consider his profession (or his media, or himself) deserving of such special legal protection.

And that is a situation no journalist should ever be in, which is why many journalists do not hold stocks (or at least, manage their own holdings), do not contribute to political compaigns, even sometimes do not vote: by removing themselves from the system, they help create a separation conducive to the important role of being a government watchdog. But shield laws do the exact opposite: they make journalists a special part of the system, and beholden to it.

And just as information should be more available to the entire public, not just reporters through anonymous sources, so too should these special protections -- if they should exist at all -- be available to all citizens. If I am writing a simple piece on my web site, on what Constitutional basis is that any less valid than whether Judith Miller writes it in the New York Times?

The Constitution draws no such distinctions. It doesn't say the press is an anointed class of citizens, it focuses on the function of the press, which is to disseminate information to the public, which can be done as well (or, arguably, better) by me on my web site as by Judith Miller in the Times. It's the function of the press, not the individual employed by the press, that is protected by the Constitution.

Another argument in favor of shield laws is, as William Safire said recently on Meet the Press, "the press is not an arm of the law," and law enforcement shouldn't rely on the press for information gathering. If this is true, then why should law enforcement rely on *anyone* for information gathering?

The press has an acute blindness that makes invisible the notion that the First Amendment does not protect them as individuals, but rather protects the function of the press, which anyone, at any time, can participate in.

Trust, But Verify

In the end, as with all information, it comes down to trust. The problem is that anonymous sources do not contribute to trustworthiness; rather, they detract from it, by asking the news consumer to simply accept what is told without possibility of verification, the common practice of which increases the liklihood that the information itself is false, as no one is being held accountable for it.

And this problem is exacerbated by shield laws, which take away any accountability on the one hand, and make the press beholden to the government on the other, when it should be a watchdog of that government, and it does so all under the despicable notion that a special class of citizens exists who deserves extra rights.