University of Chicago Professor Geoffrey Stone, one of America's leading experts on First Amendment law, has an editorial in today's New York Times calling for the passage of a federal journalist-source priviledge law, or "shield law." Such a law would, in Stone's words, "protect journalists from compelled disclosure of their sources' confidential communications in the same way psychiatrists and lawyers are protected."
Prof. Stone notes that 49 states already have such a shield law and that 13 of those states provide journalist-source confidentiality absolutely. In the 36 other states the right is qualified but still provides a great deal of protection. Stone argues that the same protections need to be granted at the federal level because:
A strong and effective journalist-source privilege is essential to a robust and independent press and to a well-functioning democratic society. It is in society's interest to encourage those who possess information of significant public value to convey it to the public, but without a journalist-source privilege, such communication will often be chilled because sources fear retribution, embarrassment or just plain getting "involved." ... A serious journalist-source privilege is imperative to the national interest. It should be high on the list of Congress's priorities for 2007.
I strongly agree with Prof. Stone on the importance of a federal shield law. But his editorial ignores the most difficult question in this debate: Who, exactly, counts as a "qualified" or "serious" journalist these days? In a world of user-generated content--in which every man, woman and child can be a one-person publisher or broadcaster--where would a federal shield law draw the line? The last thing I want is the government drawing up a formal list of "qualified" media organizations. On the other hand, should anyone who posts anything online qualify? I can see problems with that model.
Perhaps the best option is for the government not to try to create a bright-line test for who exactly qualifies as a journalist or news organization, but rather include generic language in the bill about the need for the party seeking protection to show that they took steps to gather and report news that they source confidentiality was essential to building that story.
I'm just thinking out loud here. I find this to be a very interesting and important issue and would love to hear what others think.