Saturday, October 27, 2007

Interesting Dilemma

I recently posted this link to an Internet mailing list.

Recently a couple of local bloggers have indicated they have confidential information they have promised not to share. What would they do if the US Attorney or the FBI comes knocking, based on these posts?

Journalists have long clamored for Shield Laws. Louisiana doesn't seem to have much of one. The Congress currently seems to be working on passing a very bad one, creating a journalist guild, protected from their own bad acts.

I'm not in favor of journalist shield laws at all. Journalists should have no more or less rights that the rest of of. Shield laws, especially laws like this one, create a protected guild free from the constraints of ordinary citizens. Most paid journalists now work for large corporate conglomerates who are quite capable of defending their employees, and should be held accountable.

There was a decision against Apple based on California’s Journalist Shield law that decided bloggers were journalists. Not all states have similar protection and As I Understand It SCOTUS has declined to find any special protection for journalists in the Constitution.

Speech is given the same level of protection as the press, no more nor less.

That has been pretty consistently interpreted that pre-publication censorship is not Constitutional, but the press has no greater protection than an ordinary person from the operation of law. I may be misreading the law but I think that is basically what Branzburg v. Hayes says.

The News Cartels have tried to expand their "rights", and create all sorts of ancillary rights but as I understand it is still the case that The Press is subject to the ordinary operation of Federal Law.

You read fairly often about reporters refusing to respond to subpoenas and citing the First Amendment. You also read fairly often about Federal Judges holding reporters in contempt. Reporters should refuse to respond to subpoenas when real interests are at stake, and they should be willing to accept the consequences, just as Civil Rights protesters were willing to accept jail for their beliefs.

The proposed law as written has serious potential for abuse. Any political operative could make any anonymous comment or release any confidential material to a reporter with impunity.

The Press Cartel has gotten many states to provide them with special status, but the Federal Government has not, although they are usually careful not to pick unnecessary fights.

I do not believe any journalist should have special protections from the law, in fact I think the News Conglomerates because of their resources and reach should sometimes be held to a higher standard, but I'd settle for the same standard.

I believe I should have the same right to privacy and free speech as journalists. I believe journalists should operate under more or less the same restrictions as everyone else, with regard to libel, slander and the obligation to provide information to properly constituted courts in accordance with the law. Some limited degree of deference should be given journalists as a proxy for the society at large, but journalists should have no license to avoid the responsibilities other people have to society. I think this is pretty much what the Supreme Court said in Branzburg v. Hayes, but since I'm not a lawyer I could be misreading the case. In any event my belief is not based on the case. I would believe the same things even if I understood the law differently.

A Shield Law, in my opinion, will make it easier to attack people whether the attacks rise to the level of libel or not, simply by allowing the journalist to make claims which cannot be subjected to scrutiny. It will allow unscrupulous people to make up or distort stories with little fear of exposure. We do not need protection from honorable people. We need protection from unscrupulous people who believe that any means justify their goal.

I am speaking for the Constitution especially the Equal Protection Clause which guarantees that all people are equal, and none are more equal than others. I want everyone to have the same freedom and responsibility, with no special protected classes. The protection some say is for the source is also for the journalist, as I see it. Allowing journalists to be less responsible to the Law and the Courts than any ordinary person makes them more equal than everyone else.

Some say people may be more willing to reveal things to journalists they wouldn't reveal to other people, that may be. But other unscrupulous people may use that shield to spread gossip and innuendo with little fear of reckoning.

I'm not so worried about what I might reveal, I am worried about what other people might say about me maliciously or erroneously. I think all sources should be accountable for their actions and take that responsibility seriously. Too many people already don't.

Let me pose a hypothetical for you. If the the U S Attorney were to start a formal investigation Should the bloggers who published anonymous assertions of wrongdoing be covered by this law?

My opinions, as strong as they are in this instance, as expressed here aren't fundamentally based in the law of the United States of America but in moral/natural law.

That is what I believe to be Right.

I believe that there is support in the law of the United States of America for my position. If I am incorrect about the law of the United States of America I'd appreciate appropriate citations.

Even if anyone can provide a citation, I may concede the law of the United States is different but it will still not be right.

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