A Shield for Whom? First Amendment Implications of a Federal Shield Law

Abstract

In May of 2007, the U.S. Congress introduced the Free Flow of Information Act, reigniting the legislative push toward a federal shield law. Though the journalism industry has widely embraced prospects for the law, such legislation would likely create a tiered system of protection among First Amendment practitioners. Back in 2005, during an undergraduate internship as a beat reporter for The Kansas City Star, I recall receiving a mass e-mail from a senior editor. The memo encouraged all employees of the paper, which is read daily by about 700,000 people, to contribute to a legal defence fund dedicated toward the creation of a federal shield law. Without probing the pros and cons of what such legislation would mean not only to the newspaper establishment, but also to society in general, the message challenged fellow employees to meet or surpass the editor’s $100 contribution. That message troubled me, and it should trouble us all. Last year, the U.S. Congress considered two versions of a bill to create a federal shield law protecting journalists from being subpoenaed and potentially jailed for refusal to disclose anonymous sources. Congressmen marked the move toward reintroducing the legislation in 2007 by cajoling hundreds of delegates at the American Society of Newspaper Editors conference to 'use their pages in support of the upcoming federal shield law bill' (Strupp 2007). Indeed, such commentary has recently been published by The New York Times (2007), among numerous other outlets. And in early May of 2007, the Senate and the House of Representatives simultaneously introduced the Free Flow of Information Act, reigniting the legislative push toward a federal shield law. This paper avoids analysing that specific proposal, as this occasion marks not the first time Congress has considered this topic and likely not the last. Rather, the thrust examines conceptual implications derivable from a federal shield law, implications not ordinarily discussed by the news media industry. Frighteningly, such legislation would likely create a tiered system of protection among First Amendment practitioners  an urgent warning explained throughout this paper.