Status of journalist privilege laws in the US?

May 16, 2007 1:45 PM

Whatever happened to the proposed journalist shield bills (S. 1419 and H.R. 3323) that were introduced into the (American) Senate and HoR in 2005?

I'm doing some research on journalistic shield privilege in Canada and thought it would be a good idea to get some American background for context. I've already gone through Branzburg v. Hayes and its associated discussion on the First Amendment.

I understand that many individual states (most?) have shield legislation in place, but there is currently no federal legislation in the US. The bills referred to in my question would have, I believe, introduced a federal-level journalist shield privilege.

I don't have a lot of experience researching American legislation, so I am wondering if someone out there could either fill me in on what the latest developments are (judiciary hearings perhaps?), or give me some tips on how to find out. I'm guessing some things might have changed since the Plame and Cooper affair.

Thanks!

posted by modernnomad to law & government (5 comments total)

For stuff like this, Thomas is your best friend. For instance, on S.1419 the last action was hearings held. For HR 3323, it was refered to committee.
posted by sbutler at 1:59 PM on May 16, 2007

Start with thomas.loc.gov

If you can't figure out from there what the current equivalent, if any, is to that legislation, you might call the committee that it was in on either side of Congress and ask. If the Committee phone answerers aren't helpful, then call the office of the original sponsor of the bill and ask them.

On preview, yeah, Thomas is your friend.

But you will want to know if there's a current-congress equivalent, too.
posted by The World Famous at 2:01 PM on May 16, 2007

One of the problems is defining what a "journalist" is. That's what they founder on every time they consider this.

Is a blogger a "journalist"? Courts have already had to deal with that question, and the Supreme Judicial Court of California has decided they are.

But if anyone can become a blogger, then does a journalist shield law cover essentially everyone? And if it does, then how could the courts ever compel testimony from unwilling witnesses?

And if they can't, what becomes of the criminal justice system?

That's what lawmakers face. Not just bloggers, but the broad question of deciding who is and is not a "journalist" and defining that in the law.

Given that conundrum, plus the fact that the MSM's stock is not very high with Congress, I doubt any bill like this will pass any time soon.

Existing privilege is for spouses, doctors, priests, and lawyers. All of those are definable legal conditions, involving licenses. There is no such licensing authority for journalists. And under the First Amendment the government cannot be involved in any such licensing authority, and probably cannot even recognize a non-governmental licensing authority. So that's no solution to the problem.
posted by Steven C. Den Beste at 2:25 PM on May 16, 2007 [1 favorite]

You might find this site about state journalism shield laws informative, if only tangential to your original question.

Also, to SCDB, note that the same First Amendment prevents any meaningful licensing of clergy (beyond just "priests", btw). Cf. the Universal Life Church. But, I suppose a court could consider whether a person has a bona fide religious role beyond not wanting to testify in court. (Ditto for a single-post blogger... although problems with these laws go beyond that.)
posted by SuperNova at 4:13 PM on May 16, 2007

The question of just how much is covered by the Free Religion clause of the First Amendment has been faced by courts long since, for other reasons. For instance, is human sacrifice permitted under the Free Religion clause? How about using peyote as a religious sacrament?

In both of those cases the courts have decided the answer is "no". Definitely another source of judicial headache, but one which has mostly been worked through a long time ago.

But that's not the case for the entire question of who is or is not a "journalist". If "journalist" becomes an exclusive and privileged legal class, then doesn't that infringe the right of free press for everyone else? The First Amendment "free press" clause isn't only for big newspapers and TV networks; it was deliberately intended to protect everyone.

The "free religion" clause doesn't mean everyone is a priests. But the "free press" clause does mean everyone can be a journalist.

There's also a whole can of worms relating to independence. If the government grants "journalist" status to a privileged few, it can take it away again, and that could represent a source of pressure on said "journalists" to toe the party line. In other countries where the law is different, exactly that does happen sometimes.

There's more I could say, but I'm already pushing the limits of what should be in an "AskMe" response.
posted by Steven C. Den Beste at 4:31 PM on May 16, 2007