Reporter's shield laws

[Tim May]

On Saturday, August 25, 2001, at 01:45 PM, Declan McCullagh wrote:

> On Sat, Aug 25, 2001 at 04:37:37PM -0400, Declan McCullagh wrote:
>> Just because the "homeland war" -- which you seem overly fixated on --
>> will likely lead to an erosion of some liberties, it does not
>> logically follow that it will lead to an erosion of all of them.  I
>> urge you and any other publisher/reporter/commentator types reading
>> this not to stand up for your First Amendment rights and not assume
>> that you must divulge unpublished information about sources if you
>
> Too many "not"s in that sentence. I obviously meant that you should
> stand up for your 1A rights as a reporter/publisher/commentator.
>
> That does impose a cost (mental and legal), true. But if you want to
> be a reporter/publisher/commentator, it's the cost of doing business.
>


As we've discussed before (and Declan is in agreement), the First 
Amendment doesn't give some specific class of people ("reporters") 
special rights not held by everyone.

_Some_ states have passed what I think are wholly unconstitutional 
"shield laws" conferring special privileges on officially-recognized 
journalists and reporters. Some states do not have such shield laws. I 
don't know what laws Washington state has.

But there is no reason why Declan M. should be permitted to remain 
silent on what he has been told if Vinnie the Rat is not also permitted 
to remain silent about what he knows.

The whole notion that Declan is an Official Reporter but that John Young 
is not stinks. And if John Young is a reporter, with special rights to 
not reveal his sources or contacts, then so is Tim May. And so is Bill 
Clinton, Linda Tripp, Gary Condit, and Vinnie the Rat.

(Some of those in Le Affair Lewinsky later wrote books and sold their 
stories. They were not exempted from being asked to testify on who said 
what to whom.)

If Vinnie the Rat has a contract to write an expose of his boss, John 
Gotti, is he magically excused from testifying?

Why would Declan be exempt from having to answer questions about what 
Jim Bell told him?

Not having been anywhere near the courthouse, and not having followed 
the ins and outs of the trial closely, my hunch is that the prosecution 
didn't think it needed this particular testimony, or that any testimony 
Declan might have had about what he remembered of Jim Bell's phone calls 
to him would be weak evidence or challenged as hearsay. I doubt that "a 
reporter's First Amendment rights" entered into the calculation in a 
primary way (though perhaps in a secondary way, as it was a potential 
can of worms not worth opening for the limited probative value of 
Declan's remembrances of a phone conversation.)

Shield laws are a bad, bad idea. And once extended to reporters, they 
get extended in other ways the courts and the state like. To other 
government agents, for example. To the Secret Service agents with 
knowledge of what the President was doing in the Lewinsky case. This 
happened. While fishing expeditions for gossip and dirt are not 
desirable in a free society, exempting certain persons and offices from 
illumination in court cases is even less desirable.

--Tim May