Federal Journalist Shield Law Advances

A journal entry by twitter alerts us that the US Free Flow of Information Act cleared the House Judiciary Committee last week. It is designed as a shield for the confidential sources of journalists, and the bill's sponsors intend that the definition of "journalist" be broad enough to encompass at least some bloggers. The language voted out of the Judiciary Committee stipulates that protections apply only to those who derive "financial gain or livelihood from the journalistic activity" — this could cover anybody with a blog and an AdWords account, and this worries some opponents. The Register's coverage notes "several exceptions regarding terrorism, national security, imminent death and trade secret leaks." If this act becomes law, it would override all state shield laws, some of which may now provide stronger protections. The bill seems unlikely to go anywhere any time soon as its counterpart in the Senate has received no attention, and in its present form it would likely be opposed by the Bush administration.

Comments

I don't get the rationale

[dosboot]

Either the government doesn't have the right to force you to divulge something or they do. Who I am should make no difference. The casual blogger vs non casual blogger distinction is stupid.

Re:I don't get the rationale

[Anonymous Coward]

Either the government doesn't have the right to force you to divulge something or they do. Yeah... I'm a little surprised to see the Democrats effectively joining the Stop Snitchin' campaign, but I guess they may be in the right. Certainly they must have given careful thought about the ramifications before doing something that may give immunity from testifying to anyone and everyone who has a blog.

Re:I don't get the rationale

[nomadic]

Either the government doesn't have the right to force you to divulge something or they do.

Well, under our laws they do. If you have material knowledge of a crime, the government can force you to divulge it (unless by doing so you would incriminate yourself). This is making a narrow exception for the press.

Re:I don't get the rationale

[4solarisinfo]

unless by doing so you would incriminate yourself or a Spouse - or certain circumstances where you have privileged information (Attorney Client, Doctor Patient, Confessional)

Re:I don't get the rationale

[hpavc]

This is just to help protect their leakers and punish to leakers that aren't theirs if they have found to stumbled poorly. They want to be able to maintain a outward pipeline of sensitive information to key people every day, but want to be able to punish people that obtain information that is not good.

Re:I don't get the rationale

[starX]

Let me explain it then, the nebulous entity known as "the press" is traditionally regarded as necessary to the function of a free society. Without someone to report on the actions of elected officials, said officials would be free to act with utter impunity. An active press keeps the public informed about the actions of their elected officials, and thus (so the theory goes) those officials can be held accountable by the people whom they are elected to represent. However the press needs special protections in order to do this job.

For example, civil servants who are compelled by their consciences to reveal the criminal activities of an elected official could also be understandably hesitant to reveal these action publicly for fear of losing future opportunities for employment. A journalist's assurance of anonymity does nothing if a subpoena can compel said journalist to reveal their source, and thus our hypothetical civil servant may not come forward. The elected official's crimes continue undiscovered, and democracy is not served.

The press is commonly referred to as a "fourth estate" in that it serves a vital function for democracy but is not a part of the government. Because of the special function of reporters, they need special protection under the law to allow them to continue to do their jobs successfully. We need them to be able to continue to do their jobs in order to have an informed electorate. Journalist shield laws serve democracy.

So the real question comes down to the definition of a journalist, and this is an important distinction to make. In this case it's not who you are that matters, but what you do. As a self described casual blogger, your blogging activities serve a personal function (keeping in touch with friends, family, and the like). The information you provide to the public is of private interest, as opposed to the professional journalist (even if they are a blogger) who provides information of public interest. As with all laws, basic guidelines need to be established for the courts to rule as to whether or not someone is providing information of private interest or of public interest. If you feel you have been pigeonholed into the wrong category, this would be something for you to argue in court.

Really though the law would be doing you a favor by establishing these criteria. Say you are contacted by a civil servant, you're brother in law maybe, in the above scenario. Because of this law, you would have very clear guidelines as to whether or not you could make a genuine offer of anonymity. If you can't, you need to introduce your source to a recognized professional journalist.

Re:I don't get the rationale

[Anonymous Coward]

The "freedom of the press" referred to in the First Amendment is about freedom for everyone to engage in certain activities. It's not talking about some elite group called "the press". If it's appropriate to shield the star reporter at a big national newspaper from having to reveal his sources, then the same freedom should apply to everyone.

Re:I don't get the rationale

[Keebler71]

I think you are confusing freedom of the press (i.e. to print anything without legal consequence) with freedom to protect sources (i.e. to not divulge the sources behind your stories). One of these is clearly in the Constitution. The other isn't.

Re:I don't get the rationale

[amRadioHed]

How do you figure? He doesn't say that the right to protect sources is in the Constitution (hence the need for this law), he only makes the case that this right is beneficial to a democratic nation.

Override?

[bkr1_2k]

Since when do federal laws that have lower standards override higher standards at the state level? That's like saying that the federal drinking age (in the 80s) of 18 made it mandatory for all states to comply with 18 instead of 21. That's not the case.

Re:Override?

[obergfellja]

...or the current Wages in the US starting @ 5.25 federal price, but states can go higher. It is like saying that all states have to have Min. Wage set at Federal and not higher.

Re:Override?

[morgan_greywolf]

Since when do federal laws that have lower standards override higher standards at the state level? That's like saying that the federal drinking age (in the 80s) of 18 made it mandatory for all states to comply with 18 instead of 21. That's not the case.

Actually, the Minimum Drinking Age Act of 1984 set the minimum age to purchase alcohol and possess it in public to be 21. It did not require states to ban alcohol consumption by persons under the age of 21.

Federal law often overrides state law by forcing states to comply through the manipulation of funds. IOW, if states don't comply with the federal statute, the federal government simply cuts off some source of available funds, often highway dollars. That's also how they got the national speed limit set to be 55, which is where it was until the early 90s.

So I'm guessing that states that don't comply or have stricter laws will get their funding cut off.

Re:Override?

[smooth wombat]

Since when do federal laws that have lower standards override higher standards at the state level?

Does Can-Spam ring a bell? How about a national Do Not Call list?

There are many federal laws on the books which override stronger state laws.

Re:Override?

[Nitack]

Federal laws trump State laws. There are cases, such as your drinking example, where states are able to set higher standards, but never lower. This is not an apples to apples comparison though. This law is not about a minimum age or a maximum speed limit. This is defining who is protected and who is not. In this case the feds are delineating the standard of what constitutes a journalist protected by these shield laws. In this case, you can't meet both the federal standard, which is journalist or not, and still meet a different state standard which may not completely mesh up. If the feds say your a journalist, Arkansas can not say you are not. If the feds say you are not a journalist protected, Washington can not say you are protected. States have latitude in setting a different standard when the law sets a degree, such as speed or age. When it is a simple yes or no, the federal law is the only law.

Re:Override?

[Nitack]

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

It is not compelling states to follow Federal Law through funding withholding. States are constitutionally bound to adhere to federal law. It is part of the deal for a state to join the union, they are required to relinquish powers to the federal government.
Funding is withheld when the feds want the states to do something but the actual topic is something that the constitution specifically delineates the jurisdiction to the states. Education, roads (internal infrastructure), etc. The states don't have to comply, but the feds don't need to give them money.

Re:Override?

[Dausha]

"Since when do federal laws that have lower standards override higher standards at the state level?"

Reading the bill, it appears to apply to federal issues, not state issues.[1] So in this case, federal laws "override" which it involves federal issues. If this were a matter of field preemption, then Congress can do whatever it wants. Get sued in state court, Herr Blogger, and this bill seems to offer no support. You'll need the state law.

[1]: "In any proceeding or in connection with any issue arising under Federal law" Sect. 2(a) [http://thomas.loc.gov/cgi-bin/query/z?c110:H.R.21 02:]

Re:Override?

[baldass_newbie]

Funding is withheld when the feds want the states to do something but the actual topic is something that the constitution specifically delineates the jurisdiction to the states.

Boy, you got the Reserved Power Clause exactly backwards: it states that if a power is not specifically given to the Feds, then it falls to the states which is, of course, subsequent to the Implied Powers Clause which basically says that citizens should not be deemed to forfeit rights not specifically enumerated.

Re:Override?

[nomadic]

Since when do federal laws that have lower standards override higher standards at the state level?

It's the doctrine of Federal preemption, and it's been around for a while. Here's a good explanation.

Re:Override?

[Politburo]

Basically, when the laws say so. It isn't always the case. For instance, states are free to enact environmental standards above the federal minimums. A failed bill from a few years ago would have prevented the states from regulating CO2.

Re:Override?

[vertinox]

It is not compelling states to follow Federal Law through funding withholding. States are constitutionally bound to adhere to federal law. It is part of the deal for a state to join the union, they are required to relinquish powers to the federal government.

Where in the (current) constitution does it give the Federal Government power to regulate drinking age laws? It was added in at one time but then revoked.

Congress has the right to control interstate commerce and funding for said projects, but it has no authority to regulate how old you have to be to drink. You may point out that the federal government dictates how old you have to be to vote, but that was also added as an amendment to the actual constitution after the Vietnam war.

Don't like under 21's drinking? Fine! Go through the process and add it to the constitution. Don't dick around and by pass the intended process.

Even the prohibition supporters went through the proper process to get alcohol outlawed back in 1918.

Re:Override?

[bkr1_2k]

Yes federal government extortion is definitely a precedent, but that's not the same thing as overriding the law. I wasn't aware about the whole consumption versus purchase for the drinking age but thanks for educating me.

I will note, however that in most cases where the federal government extorts the states the feds are trying to enforce stricter standards, not lower standards.

Re:Override?

[Nitack]

Perhaps you did not read the excerpt from the constitution, I will repost the first line for you.

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

Re:Override?

[bkr1_2k]

I'll dare to say that extending the coverage to extra forms of "professions" is a degree rather than a simple "yes or no" unless the federal law specifically excludes people. By leaving the "financial gain" vague (if in fact it does) it leaves plenty of room for states to interpret that as they will.

Re:Override?

[vertinox]

True but congress has limited power so I'll refresh your memory on their current powers:

Article 1 Section 8: The Congress shall have power

to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes;

To establish a uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;

To coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures;

To provide for the punishment of counterfeiting the securities and current coin of the United States;

To establish post offices and post roads;

To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries;

To constitute tribunals inferior to the Supreme Court;

To define and punish piracies and felonies committed on the high seas, and offenses against the law of nations;

To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water;

To raise and support armies, but no appropriation of money to that use shall be for a longer term than two years;

To provide and maintain a navy;

To make rules for the government and regulation of the land and naval forces;

To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions;

To provide for organizing, arming, and disciplining, the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the states respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress;

To exercise exclusive legislation in all cases whatsoever, over such District (not exceeding ten miles square) as may, by cession of particular states, and the acceptance of Congress, become the seat of the government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the state in which the same shall be, for the erection of forts, magazines, arsenals, dockyards, and other needful buildings;--And

To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. You can make laws to expand on those powers, but if it is not listed then you have to make an amendment to the constitution. Those include making states respect the rights of all citizens right to vote and trial by jury regardless of race, voting at 18, and at one time to outlaw alcohol which was later repealed.

If you could find me a part of the constitution and amendments that grants the federal government the right to regulate the age one can drink alcohol then please provide it to me. The can regulate the trade of alcohol and even the sale, but the fact that if someone gives you alcohol for free and that is illegal does not seem to appear as any power in the constitution granted to the government.

Re:Override?

[leon.gandalf]

Yeah like if a state does not comply they withhold money for fixing highways and bridges.... oh wait never mind....

Re:Override?

[Anonymous Coward]

As a general rule of thumb, Federal law does not trump state law. In point of fact, the basic assumption in constitutional law is that the feds *cannot* legislate any given activity. It's just plain off limits unless there's a particular constituational authorization for federalization.

In practise, modern constituational theory provides a large number of hooks to federalize legislation. Among the most common are:

      Interstate commerce -- if an activity is economic, and it crosses state lines, or even impacts economic activity in other states without ever sending a commodity across a state line, the feds can regulate it
      Equal protection -- if a state law is deemed grossly "unfair" and disproportionately impacts, say, slashdot readers, then the federal government can attempt to relieve that disparity via its own counter regulation and/or the supreme court can vacate the law in question.

In the particular case of things like a journalism shield law, there isn't a clear cut excuse for the feds to regulate. Any constitutional lawyer worthy his salt could make up a colorable argument that the feds have an interest in protecting the first amendment and hence they have a regulatory interest here, but frankly I'd be a little dubious. A federal law the banned *federal* prosecution would be peachy since the feds can always regulate themselves, but compelling states to do something would be difficult to get past the supreme court imho.

However, the feds *will not do this*. Instead they'll make a conditional bill which says:

If you want to get your highway funds next year, you will pass your own version of this journalism shield law.

The supreme court has ruled over and over again that using that sort of linkage between funding and legislation is perfectly legal and consitutional. The logic being that the states have no obligation to take the highway funds to start with. So if they opt to take free money from the feds, then they have no right to complain about any conditions.

So its not really about the feds trumping the states here. More likely it'll be linked to some form of funding the states can't do without.

Re:Override?

[Anonymous Coward]

the laws of the United States which shall be made in pursuance thereof

When a law is made that is not in pursuance of the Constitution, then what?

Re:Override?

[Nitack]

Well this is a case of the feds using denying funding if the states don't go along.

Financial incentives create de facto federal purchase age of 21. The National Minimum Drinking Age Act of 1984 states that revenue will be withheld from states that allow the purchase of alcohol to anyone under the age of 21. Some states do not allow those under the legal drinking age to be present in liquor stores or in bars (usually, the difference between a bar and a restaurant is whether food is being served). Contrary to popular belief, since National Minimum Drinking Age Act of 1984, few states specifically prohibit minors' consumption of alcohol in private settings (an exception includes Connecticut). In some cases or states, alcohol permits can be purchased at a cost to the parent or legal guardian. New York permits those under twenty-one to drink in restaurants provided that they are with a parent or guardian, the alcohol is poured (if applicable) by the parent or guardian, the parent or guardian hands the drink to the minor person, and the minor person is not seated at the bar. As of 2006, 20 states do not specifically ban underage consumption and an additional 15 states have family member and/or location exceptions to their underage consumption laws. [3] Federal law explicitly provides for religious, medical, employment and private club possession exceptions; as of 2005, 31 states have family member and/or location exceptions to their underage possession laws. [4] Underage purchase of alcohol, though illegal in all fifty states, is not a federal offense, although restrictions on highway funding for states that allow it make it illegal federally de facto. See underage drinking in America. Additionally, exceptions are such as on certain military installations such as Fort Bliss, Texas. On Fort Bliss, the Commanding General lowered the age to 18 to subside the number of soldiers traveling to nearby Juarez, Mexico to drink legally there.

The power to regulate drinking age is not given to the Congress but they gave themselves that power through their governance of interstate commerce and the funding of those roads. Probably of questionable constitutionality, but they did it. It is kind of like passing a law that the army will not protect any state that does not pass X law.

Thats daangerous territory

[Anonymous Coward]

Letting our government define who are and aren't journalists is really dangerous.

Ploy

[Joebert]

This is just to make bloggers feel comfortable, some other law will make it legal to get sources from transmissions or somthing.

Laws like this never go anywhere unless they already have blueprints for a back door.

I must have midded someting....

[delirium of disorder]

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech*, or of the press*; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances

*Except regarding terrorism, national security**, imminent death and trade secret leaks.

**"National security" never means the safety of the people living in a nation. If it did, perusing national security would mean working for a sustainable economy, a non-agressive (defensive only) military policy, or perhaps health care and highway safety. "National security" must actually mean something like, "actions taken to further enrich the military industrial complex" or "the right to invade other nations to control their resources".

Re:I must have midded someting....

[Canthros]

What has this to do with a federal shield law?

Re:I must have midded someting....

[Opportunist]

What does the act in question?

Basically what it says is "you may keep your sources secret, unless it matters".

Re:I must have midded someting....

[Curien]

You'd know if you read the article.

Re:I must have midded someting....

[Attila Dimedici]

If someone tells me that they are going to kill another person and then goes and kills that person, why should the fact that I am a journalist make a difference in whether or not the courts/police can compel me to tell them who it is? What if the person who told me, also told me they were going to kill someone else?

Re:I must have midded someting....

[Anonymous Coward]

The fact that a government needs a specific new law to "protect" a specific form of speech only proves that free speech doesn't exist under the rule of that government.

Where free speech exists, there is only one law necessary: the one that prohibits government from making any other law regarding speech. Sound familiar? It should: that's what the first amendment was supposed to do.

There are no exceptions to this -- the "yelling fire in a crowded theater" scenario, for example, should already be addressed by laws against coercion.

(Deliberately putting others at risk, without their knowledge or consent, should of course be interpreted as an act of coercion. It's not the actual speech that is wrong -- again, to start making "exceptions" to free speech is to oppress free speech, however they spin it -- it's the act of putting others at risk without consent that is wrong.)

Re:I must have midded someting....

[Politburo]

Yeah, you midded a lot. Specifically, the idea that the 1st amendment is not absolute, which has been around since the beginning of the nation with the Alien and Sedition acts.

Not saying I agree, but to just paste the 1st amendment and say 'wtf?' is the height of naivety.

Re:I must have midded someting....

[Anonymous Coward]

If the first amendment is "not absolute", then logically, the first amendment doesn't really exist. (If a law intended to limit power can be arbitrarily "modified" by those in power, then exactly what good is that law?)

There are NO exceptions to free speech. The "yelling fire in a crowded theater" scenario should be interpreted as a crime not because it is some kind of arbitrary exception to free speech -- but because it is an actual act of coercion: putting others at risk without their knowledge or consent. It is the act of coercion that is wrong, not the speech itself.

Where there exist laws creating "exceptions" to free speech, free speech does not exist. Yes, that IS absolute.

Re:I must have midded someting....

[Dragonslicer]

If someone tells me that they are going to kill another person and then goes and kills that person, why should the fact that I am a journalist make a difference in whether or not the courts/police can compel me to tell them who it is? What if the person who told me, also told me they were going to kill someone else? I think the difference in your example is that you would have knowledge of a specific crime being committed. In most cases, it's not a crime (yet) to leak information about the government. If a journalist was told by an anonymous source that some politician murdered someone (in the usual legal definition of the word, not the he-started-a-war definition), it wouldn't be that unreasonable for a court to compel testimony from the journalist about what they know.

Re:I must have midded someting....

[Attila Dimedici]

I intentionally took an exaggerated example, because there are people who would say that a journalist should not be compelled in the example I gave and I have no interest in what those people have to say. That being said the first question is: Where do you draw the line? The second question is: why are journalists a special case? What makes a "journalist" different than anybody else (in the eyes of the law)? In my opinion, either the law should not compel anyone to reveal where they learned what they know about a crime, or it should compel everyone (an exception to this I would be willing to accept would be very limited cases such as some cases involving undercover police officers and such).

Wall Street Journal

[iknownuttin]

FTFA: Boucher's amendment also specified that "foreign powers or agents of foreign powers"--including a government-controlled newspaper--and any "foreign terrorist organization" designated by the Secretary of State cannot receive the protections.

Now, I realize that they're aiming at, let's say, a newspaper owned by the Chinese Government, but I have this sinking feeling that it will be applied to some paper like the "Wall Street Journal" since it is now controlled by an Australian. I just see some Attorney General saying that a "Foreign Power" also applies to foreign business men. Laws are never in black and white. They can always be interpreted to mean more than they originally intended; hence, the need for courts.

Re:Wall Street Journal

[iknownuttin]

Rupert Murdoch took US citizenship so he could own a US TV network. There goes your theory.

Did he renounce his Australian Citizenship?

What about the Financial Times? What if they break a story that the Government doesn't like? Or what about the zillions of websites and other papers, magazines, and whatnot that are owned by a foreign businesses.

OK, I was ignorant about the citizenship of Murdoch, but still doesn't invalidate my point. You need to look at the big picture.

Re:Wall Street Journal

[Politburo]

Your nickname is appropriate. The terms 'foreign power', 'agents of foreign powers' and 'foreign terrorist organization' are well defined in US law. The amendment closes a possible loophole.

Re:Wall Street Journal

[Anonymous Coward]

"Did he renounce his Australian Citizenship?"

He is a dual citizen.

"What about the Financial Times? What if they break a story that the Government doesn't like? Or what about the zillions of websites and other papers, magazines, and whatnot that are owned by a foreign businesses."

They're not protected, however, they're not necessarily libel either as the US Government has no enforcement with externals.

"OK, I was ignorant about the citizenship of Murdoch, but still doesn't invalidate my point. You need to look at the big picture."

You're right. It doesn't invalidate your question. I honestly don't know how that is handled. Likely it would be handled by the courts if it is not spelled out in the bill.

Keep in mind, though, that the bill is something the journalists actually want and have been trying to get for the last 30 some years. Right now journalists aren't all that sure what they can do legally (as there is no real law). So when Mr Smith sues a reporter for putting his name in the paper there isn't really any law guiding what should happen. The court is effectively being forced to generate legislation, which it shouldn't be doing.

I happen to disagree with a bit of the bill, but over all it's actually a fairly good thing as it clarifies an existing grey area and affords5rnalists some legislative protection.

Comment removed

[account_deleted]

Comment removed based on user account deletion

This is a Good Thing (tm)

[Ngarrang]

For the press to be free, the confidentiality of a journalist contact should be protected. While this power can be abused (as can all laws), it helps to protect both liberals and conservatives from destroying each other. Informants have also helped to bring to light serious ecological, financial and other offenses. For good or bad, this is a right that needs to be protected, because I fear the resulting effects of the lack of protection.

Trade Secret leaks?

[Jason Levine]

Apparently, revealing the secret recipe for KFC chicken is on the same level as plotting to blow up buildings and/or kill people.

The bigger question...

[faloi]

How can we protect journalists when their sources are made up, or their pictures are doctored?

Protect the Publishers

[Doc Ruby]

The only criterion for who to protect as a "journalist" is whoever publishes. The only reason for the exception to the secrecy rules is because informing the public is more important than letting some arbitrary group of private people (a "conspiracy") talk about the secrets after they've escaped actual secrecy control. Therefore, no one who publishes the old secret is any more privileged than any other. No matter how much money their publishing corporation paid any politician, no matter who went to law school with whom.

This principle of protecting the publisher without any preference among them is essential to the open source movement. The 60-70 year old Baby Boomers running our government have finally started to catch up with current American culture and wisdom. But they need to drop the obsolete old boy protections for "journalists" with whom they have all kinds of "off the record" deals to protect their own secrets from informing the public, including the bribes that corporate mass media pay to keep both their sides of the secrecy rules in business.

Re:Protect the Publishers

[ObsessiveMathsFreak]

But they need to drop the obsolete old boy protections for "journalists" with whom they have all kinds of "off the record" deals to protect their own secrets from informing the public, including the bribes that corporate mass media pay to keep both their sides of the secrecy rules in business.

Basically that's it. Journalists are treated as a privileged class in our society. I had a rant recently about how the media has taken up the baton of the second estate from an outdated clergy. They've become a secular second estate if you will, and acts like this, granting them privilege, serve to emphasize the fact that they've become a higher class of citizen than the rest of us. Welcome to the world of tomorrow.

"Trade secrets" exception needs defining

[netbuzz]

A huge swath of the stories written by business journalists, in general, and tech journalists, in particular, involve publishing news about companies and their plans *before* those companies are ready to divulge the news themselves. I'd want to know how (or if) this law will distinguish between a leak to a journalist about the next version of the iPhone and, say, the secret formula for Coca-Cola? Will journalists be able to protect sources who in the process of providing information about an upcoming product or service violated a non-disclosure agreement? If not, this shield may prove less than effective because this kind of thing happens every day in business journalism.

All men are created equal...

[manowar821]

Some are just more equal than others.

Rights vs Privileges vs Real World Exceptions

[Doc Ruby]

In an ideal world, where everyone is shaped like platonic solids and everything happens perfectly, instantaneously, without heat or friction... maybe.

In fact, the government doesn't have any rights. People have rights which we create governments to protect. In the real world in which I live, sometimes those rights conflict with each other. We have to look at the real effects of the tradeoffs between the limits on protecting and exercising some of these rights. The Constitution is not a suicide pact.

While the government has privileges to compel people, sometimes in conflict with our rights (mandatory: jail, [usually] voluntary: life in the the military), those compulsions are to be made only when absolutely necessary. Therefore there are all kinds of exceptions to those privileged compulsions. Conversely, there are exceptions to our freedom from compulsion.

That's why the Constitution isn't just some "50 Commandments" or something that's just a decree of our rights. Our Constitution specifies a strict due process for arbitrating our rights while actually living among each other. So we can protect our rights, while not living in a straitjacket of absolute rights that often conflict. Not a suicide pact, or a mutually assured destruction pact, either.

But you're right that the non/casual blogger distinction is worthless and contrived. That distinction says nothing about the value of the info that has already been leaked to them. In fact, if even a casual blogger, rather than a dedicated full time professional, has gotten secret info, then it's likely that others will have the info. The blogger does the public a favor by publishing it, rather than leave the info to circulate among the merely politically, economically or otherwise privileged. The public has a right to know that trumps the government's privilege to compel. Except in some rarer circumstances. Which must be decided by the due process that is our right.

Re:Rights vs Privileges vs Real World Exceptions

[ObsessiveMathsFreak]

We have to look at the real effects of the tradeoffs between the limits on protecting and exercising some of these rights. The Constitution is not a suicide pact.

I'm guessing this latest gem is the long awaited update to the "Just a God damned Piece of Paper" argument.

Re:Rights vs Privileges vs Real World Exceptions

[utopianfiat]

"there is no express grant of habeas in the Constitution. There is a prohibition against taking it away."
-- Alberto Gonzales, US Attorney General

Re:Rights vs Privileges vs Real World Exceptions

[Doc Ruby]

If you read the link I posted, you'd see that "not a suicide pact" is a gem practically old as the Constituion, first attributed to Jefferson himself, and revisited periodically as the US government is in crisis.

"Just a goddamn piece of paper" is probably at least as old.

But neither of them are justification to ignore the Constitution, as I explained in detail.

'Financial gain'?

[vigmeister]

Wait a second... does this mean that people who contribute to WikiNews aren't considered journalists, but mudslinging bloggers who have adwords accounts are?

I call BS on this regulation. Maybe journalists ought to be defined by a certification course on journalistic ethics similar to CITI for researchers?

Cheers!

the other view

[gryf]

As a libertarian I ought to celebrate a law that protects journalists. Unfortunately, at this time, protecting journalists and their sources sounds a lot like protecting Enron. Left or right, we've all been upset about the state of journalism, yet one thing we've not been short of is anonymous source.

Only 15% of americans truly trust the news providers, and since just about any story you find in the paper or hear on tv requires us trusting the reporter, and their anonymous sources, it doesn't make sense that we should be making it easier for journalists to pursue a hidden agenda. Me, I want it harder for anonymous sources to come forward. If a source has an issue with this or that policy, they should prove the strength of their conviction by allowing themselves to be named instead of hiding in the shadows. Too often journalists end up as tools for agency or bureaucratic agendas and vendettas.

Republicans and Democrats both villified the press over the Plame outing case because it protected itself and refused to expose the truth behind a high level political case. Democrats wanted the press to name the sources so as to nail Libby and by extension Cheney, Republicans wanted the same thing in order exonerate Libby and by extension Cheney. Instead, journalists ended up in jail over an unfounded assumption that they had to protect a political appointee engaging in an inter-departamental rivalry. Many have pointed out that that episode went far to undermine the freedom of the press.

If we want better reporting and more trust in the news, we should demand as much transparency in reporting as possible, not obfuscate the problems. "Don't mind the source behind the curtain!" is the cry of the journalists. "Put your sources where I can see them" is mine.

Demanding transparency and honesty from the government is futile if we don't demand the same thing from the watchdogs.

Re:the other view

[gknoy]

I want it harder for anonymous sources to come forward. If a source has an issue with this or that policy, they should prove the strength of their conviction by allowing themselves to be named instead of hiding in the shadows. Too often journalists end up as tools for agency or bureaucratic agendas and vendettas.

I was going to mod your post up (Interesting DOES apply), but thought I'd address this.

When a person feels that their life (or family) would be in danger if they are a known source, they are going to almost always stay silent. For example, snitching on mafia doings, or reporting that the US government is torturing and killing people unconstitutionally would reasonably expect that they might be next on the list for retribution. I am not making such a claim about the US gov't, but if such a thing were true, then someone that blew the whistle would very likely be persecuted heavily, and even be in serious danger.

If whistleblowers can't ensure that they are protected (whether via law or anonymity), far fewer will blow the whistle. I don't think I value my countrymen more than I value the lives of my wife and children, for example. In the case of egregious violations of public trust, some might feel that they cannot depend on the law. What good does the law do you when you are rendered to a foreign country, your exact whereabouts classified, your reason for arrest classified, and no charges actually brought? It sounds a lot like Neo's encounter with Agent Smith.

This does have a taste of tin-foil hat wearing paranoia, I admit. However, I'd rather keep our options open. I'd rather allow anonymous whistleblowers than have a much smaller set of identifiable whistleblowers.

Re:the other view

[gryf]

I think that the case in abstract is a useful one. In practice though we've seen many governments' horrific practices brought to light. Think the of the killing fields of Cambodia, the gassing of the Kurds, the massacre of the Armenians. Or, somewhat more trenchantly, the genocide against Africans in Darfur. These cases all came to light because sources informed the media or others who went and reported on it themselves. They didn't rely on anonymous sources, they got hard copy first hand to relate the stories. Nearly all anonymous sources quoted in stories are in no real danger whatsoever.

This also leads up to one of the worst abuses by a media organization, namely CNN from 1991 to 2003. They knew about how atrocious Saddam Hussein was to his people but hid that from the world in order to protect their source, Saddam Hussein, from the court of public opinion. Does anyone really think that CNN's access to Hussein was worth more than getting the truth out about his regime?

This source vs integrity issue is the very reason I oppose the shield law. Journalists interested in the truth rather then their career would see in a second that bloggers are just as important to uncovering the truth as any source. Yet, bloggers aren't worthy any protection in the eyes of the industry. If the industry weren't so arrogant and self-serving, I'd support the law, but the day of the selfless muckracker is long dead.

As for the mafia example, it's constitutionally pretty tricky to use anonymous accusers. The Sixth Ammendment garantees the right to confront your accuser. Normally, as I understand it, such sources are subpeonable, but are then put in witness protection afterwards ( their family's having already gone into it ).

Anonymous Cowards

[An Onerous Coward]

Well, the Bush administration is against the bill, so I suppose I ought to be for it.

I think journalists often use anonymity irresponsibly. It's not just used for whistleblowers exposing shady dealings and national conspiracies. It's also used to hide legitimate conflicts of interest from public view. In the run-up to the Iraq war,

Does anyone remember that time when a source on the Iraq war, who demanded that he only be referred to as a "senior administration official", came across as a bit of a Dick?

Anonymity shouldn't be used for trivial reasons, and it shouldn't be used to give those in power a soapbox for publishing self-serving disinformation. Hint: if you're interviewing an administration official who thinks the president is about to rush us into a disastrous war, anonymity might be right for you. If you're interviewing an official who wants to use anonymity to make his pro-war opinions sound like they're coming from a more legitimate and objective source than, well, him... the American people deserve to know how credible the source is.

The law itself is probably a good idea, but journalists have lately been willing to grant anonymity to clearly undeserving sources.

Re:Anonymous Cowards

[dosboot]

Anonymous sources that are never revealed might as well be fictional. If the source won't reveal himself then I have no reason to believe he even exists. The absence of a shield law does not prevent reporters from bringing us important information, it only forces them to divulge the source in certain circumstances.

Re:Anonymous Cowards

[aztektum]

I'm typically against any bill any legislative body tries to pass these days. But I'm ESPECIALLY against a bill that defines who is allowed what protections.

There was an argument over including a "Bill of Rights" in our Constitution over the same principle. If you enumerate only certain rights, you run the risk that it inherently denies others. I haven't read this bill, but by stipulating who is allowed protection you reduce the rights of others. That goes against the very principles our country was designed upon.

If this passes, it's just another thing to use as evidence that our elected officials don't give a shit about the people that they should be working for.

Re:Anonymous Cowards

[nuzak]

> There was an argument over including a "Bill of Rights" in our Constitution over the same principle. If you enumerate only certain rights, you run the risk that it inherently denies others.

Thus was there a ninth amendment -- I doubt this bill would run afoul it though, since it isn't really proscriptive of selective regulation, it serves only to pre-empt the validity of the assumption you mentioned. The Ninth amendment is sometimes used to support the implicit notion of privacy in the constitution, such as in Griswold v. Connecticut, but interestingly the Supreme Court seems to like to read a right to privacy into the 14th amendment instead. Go figure, I don't know either.

Legitimacy...

[Notquitecajun]

Hopefully, this adds a little bit of legitimacy to people who actually know something of what they're writing about. The inherent problem with journalism is a journalism degree - you may be able to write a nice-sounding story, but what do you know about things like engineering, biology, history, police work, law, or anything on what is being written about?

Soakin' up those mod points!

[FatSean]

MMMMMmmmmm!

I respond to a guy posting an obvious dig at the Democrats...he basically insinuated that they had a plan to abuse this law which was why they 'let it pass' despite their thin majority.

So I do what any good slashdotter would do, give them the snarky over-the-top reply they were trolling for!

Oh well, you win some you lose some.

Imagine it were 1765..

[Anonymous Coward]

Pamphlet publisher: "As a colonial businessman, I am outraged! This Stamp Act is an abominati--" Government: "All right, you're under arrest."

Pamphlet publisher: "As people whose livelihood depends on publishing, we feel a need to inform our readers that the Stamp Act has several controversial aspects." Government: "Ok, you're allowed to speak."

There are reasons that we insisted that our government shall not have the power to limit speech, and none of it has a damn thing to do with whether the speaker is a professional or not.

in comparison.....

[3seas]

what if this were applied to OSS?

Or in other words does this undermine free speech, as in beer....?

Game of Shadows

[40ozFreak]

I guess this means the courts can't harass the authors of "Game of Shadows" about their sources anymore, and the irrational juggernaut of Congressional attention focused on Barry Bonds can ease up and take a more general, blanketed approach to cracking the steroids scandal. This instead of wasting precious money and time focusing on nailing a single athlete just because he's the home run king.

Journalists versus Citizens

[Anonymous Coward]

Journalists have all the rights of regular citizens. No more, not fewer. If the government starts setting up special privileges for journalists, the interests of journalists and citizens diverge, and there goes the press' incentive to protect our rights.

Re:Journalists versus Citizens

[Anomalous Cowbird]

Journalists have all the rights of regular citizens. No more, not fewer. If the government starts setting up special privileges for journalists, the interests of journalists and citizens diverge, and there goes the press' incentive to protect our rights.

True, and insightful. Makes me wish I had mod points today.

To equate "freedom of the press" to "the right never to reveal a source no matter what" reflects either faulty logic or a deliberate attempt to mislead. Guaranteeing the right to write and publish does not imply the establishment of a protected class immune from the laws that govern the citizenry.

Suppose for example that someone reveals to you information concerning a crime which has been committed. Under the "shield law" logic, if you tell one person what you heard, but refuse to reveal your source, this could be a crime; but if you tell a million people, and likewise refuse to reveal your source, this is a noble gesture, worthy of legal protection?

I strongly believe in freedom of the press, but I think that absolute protection for any and all anonymous sources will only contribute to an increase in journalistic irresponsibility.

Cart Before Horse

[flyneye]

"it would override all state shield laws"
Federal law,policy,or wishful thinking will never override state law.
The Feds only job is to protect borders,run a post office,regulate interstate commerce and sundry other things.State Law is the final word.
Anything beyond this is cooperation on the states part or just a mistake that no-one noticed to point out.
Put the Fed in their place.An untrustworthy servant with simple tasks as intended,not an authority that so many readily believe it to be.The more who believe it,the more it will act as such.Time to let the air out of the balloon and clothe the king.

Am I the only one...

[SparkleMotion88]

...who thinks this who "obstruction of justice" business is completely unconstitutional? If I have freedom of speech, then I am also free to decide what I say or don't say (with a few exceptions related to making threats or putting others in imminent danger). So why is it even remotely okay for the government to make me say something (e.g. naming a source, testifying, etc). If I don't want to speak, I don't have to speak. My right to silence trumps the government's desire to catch bad guys. This right also applies to me regardless of whether I am a journalist or not.

Re:Am I the only one...

[SparkleMotion88]

I should clarify that I'm using "obstruction of justice" to mean any punishment for refusing to speak, including contempt of court or congress.

Re:Am I the only one...

[Anonymous Coward]

Living proof that freedom is debilitating.

Supremacy Clause + 14th Amendment = Yes, override.

[spiritraveller]

Laws passed by Congress under the authority of the Constitution ALWAYS override state laws. See Article 6, Paragraph 2 of the Constitution of the United States, "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any state to the Contrary notwithstanding."

The Due Process clause of the 14th Amendment, Section 1 applies the Bill of Rights to the States (well, most of them anyway). Among those rights which are applied to the States via 14th Amendment Due Process is the Freedom of the Press. (You would think that these rights would flow from the "Privileges and Immunities" Clause of the 14th instead. For reasons not worth going into here, the Supreme Court has held that they flow from the Due Process clause.)

Section 5 of the 14th Amendment authorizes Congress to pass legislation enforcing the 14th Amendment. That is where Congress gets authority for this legislation.

The so-called "Federal minimum drinking age" is simply a funding limitation. States which do not set a minimum drinking age determined by Congress will not be given Federal highway funds. Congress is allowed to do that, because it is not setting the drinking age, it is simply determining how to allocate funds. The Constitution gives Congress authority to allocate funds.

Of course, this is a loophole for Congress to increase Federal power over all aspects of our lives. The Federal government taxes you a whole lot, leaving less money for the states to take, and then it uses your money to bribe/extort your state legislature into passing laws that it approves of. I don't believe this was ever the intent of the Founders, but it is the world we live in now.

Rights vs Privileges vs Real World Exceptions

[Anonymous Coward]

In an ideal world, where everyone is shaped like platonic solids and everything happens perfectly, instantaneously, without heat or friction... maybe.

In fact, the government doesn't have any rights. People have rights which we create governments to protect. In the real world in which I live, sometimes those rights conflict with each other. We have to look at the real effects of the tradeoffs between the limits on protecting and exercising some of these rights. The Constitution is not a suicide pact.

While the government has privileges to compel people, sometimes in conflict with our rights (mandatory: jail, [usually] voluntary: life in the the military), those compulsions are to be made only when absolutely necessary. Therefore there are all kinds of exceptions to those privileged compulsions. Conversely, there are exceptions to our freedom from compulsion.

That's why the Constitution isn't just some "50 Commandments" or something that's just a decree of our rights. Our Constitution specifies a strict due process for arbitrating our rights while actually living among each other. So we can protect our rights, while not living in a straitjacket of absolute rights that often conflict. Not a suicide pact, or a mutually assured destruction pact, either.

But you're right that the non/casual blogger distinction is worthless and contrived. That distinction says nothing about the value of the info that has already been leaked to them. In fact, if even a casual blogger, rather than a dedicated full time professional, has gotten secret info, then it's likely that others will have the info. The blogger does the public a favor by publishing it, rather than leave the info to circulate among the merely politically, economically or otherwise privileged. The public has a right to know that trumps the government's privilege to compel. Except in some rarer circumstances. Which must be decided by the due process that is our right.
--
--
make install -not war