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Balance and Shield Laws

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I think Kevin Drum’s post about shield laws is generally sensible–particularly the point that any such laws should protect activities, not professional identities–but I think there’s one point that’s worth adding to this:

At the same time, I agree with both Glenn and Atrios that it’s the activity of journalism that should be protected, not any particular medium. There’s an obvious objection to this, of course: if an activity as common as blogging provides protection against testifying in federal court, the Corleone family would just set up a blog and then sit back and happily thumb their noses at prosecutors forever.

This is unpersuasive. It’s perfectly possible to define “journalism” in a reasonable way, and judges are quite capable of distinguishing between genuine journalism and obvious ploys. It’s a matter of intent, and judges rule on stuff like that all the time. They won’t do it perfectly, but even a modest check on executive branch zeal is worth having.

This is right, as far as it goes, but there’s an additional point, which is that a privilege against testifying should be rebuttable from the other end as well. Any good shield law will presumably involve a balance between the reporter’s privelege and the state’s interest in the testimony. So it’s not just that a blog that exists to send coded messages about breaking the legs of the store owner who resisted a shakedown to hired goons wouldn’t qualify as “journalism.” It’s also that the state’s interest in preventing assault and battery is extremely high, and would obviously trump privileges created by a shield law. As I’ve mentioned before, this also applies to the case of Judith Miller. Even if federal law were to grant journalists privilege against testifying–which I think would be desirable–and we assume for the sake of argument that her conversations with Scooter Libby constitute journalism, privilege would pretty clearly not hold up in this case. The state has a very strong interest in not having its covert agents burned, and the public interest in this case (Miller didn’t even write a story based on what she learned, and her source was not providing useful information but was using her to pursue the interests of the administration) was negligible. So unless the privilege created by the shield law was absolute, which is obviously a terrible (and unworkable) idea, Miller would almost certainly be compelled to testify even if a shield law were in place. It is true that there will be much tougher cases than Miller’s, but as Kevin said, balancing individual rights (whether constitutional or statutory) and state interests is something courts do as a matter of course.

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