→ November 2006 Contents → Column
My Response to The Digital Journalist
In your October Ethics column, "We Need to Talk...," you implicitly suggested that I should be protected from having to testify and provide my unpublished material, if and only if, I am a professional journalist. While I certainly understand your argument that a reporter's privilege must be very narrowly applied or the justice system would collapse, I cannot help but feel the criterion you've proposed is inherently flawed.
At best, the suggestion of narrowly defining who qualifies as a protected journalist will result in an elite class of professionals who work for mainstream media outlets, while reporters for the alternative press would be given no choice but to practice their craft without a net. More likely, I anticipate that this approach would establish a state-sanctioned journalist license, and anyone would be subject to having [his or] her license revoked should [he or] she stray from the party line. At worst, independent voices could be subject to prosecution for practicing journalism without a license.
The First Amendment was not written to protect the Hearst Corporation and its thousands of employees, although it certainly should. When the Founding Fathers set out to guarantee a free press they really did seek to protect independent journalists and pamphleteers, such as Thomas Paine and his Common Sense.
The problem with only protecting professionals, while denying these protections to those who do not rely on their reportage to support themselves financially is two-fold. For one, students of journalism must be protected - if they are not, they will be denied the opportunity to engage in serious newsgathering during their education and thus [be] unprepared to enter the field as professionals. Secondly, if independents are denied these protections, then who will report on mainstream journalists who abuse their professional standing?
What about the stories that are ignored or neglected by the mainstream media? Are those issues really not worthy of coverage simply because the established media has deemed them unfit for airtime? If it is important that these stories are covered, then isn't it also important that journalists investigating these stories be protected?
Who should be protected? As Jeff Jarvis mused previously, Tony Soprano shouldn't be able to insulate himself by simply creating a blog, but I do feel that the mommy-blogger who happens to break a story about a dishonest baby food company should not be forced to out her confidential sources. In my opinion, anyone's journalist activities should be protected whether or not he is paid for his work. After all, a journalist is supposedly a public servant and if he or she is working due to his or her own conscience and without financial compensation, how can this possibly invalidate him or her as a public servant?
But would this broad application to the journalist shield lead the justice system to collapse? I doubt it, but there is a more sensible approach to limiting these protections without establishing an exclusive class of protected journalists. By applying a balancing test between the need for law enforcement to obtain this information against the damage that would be inflicted to the rights of a free press, many of these cases can be resolved without the establishment of a state-sanctioned press.
For example, in my case the federal government has asserted that a protester threw a firework in the vicinity of a police car four days after the Fourth of July. The U.S. Attorney has argued that this was an attempt to burn the San Francisco police vehicle and should therefore be a federal investigation, but according to the police report, the car did not burn. Despite the fact that I've stated for the record that I neither filmed nor witnessed the alleged incident and despite the fact that we've offered to screen the complete footage for the judge, I am currently sitting in a federal prison cell for protecting my sources and unpublished material.
If I were to submit to the government demands, then it would no longer be possible for sources to trust me with privileged information; I would be denied the unfettered access that I've been granted as a result of establishing a trusted relationship with Bay Area activists, and I would thus be unable to fully report on civil dissent in the San Francisco region. Forcing me to comply with this subpoena would and has created a chilling effect, which should be balanced against the federal government's need to investigate the alleged crime that may have occurred and which resulted, if it even happened, in no significant damage to the police vehicle that suffered only a broken taillight.
- Josh Wolf
© Karen Slattery and Mark Doremus
Back to November 2006 Contents