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OurBlook interview with Len Shyles, associate professor of communication, Villanova University
 What are the pros and cons of the media shield bill law moving through Congress?
LS: First things first: For any discussion of the shield law changes, let's start with two relevant quotes from two of our Founding Fathers, the first from Thomas Jefferson, and the second from George Washington:
Were it left to me to decide whether we should have a government without newspapers, or newspapers without a government, I should not hesitate a moment to prefer the latter. - Thomas Jefferson, 1787.
For my part I entertain a high idea of the utility of periodical publications; insomuch as I could heartily desire, copies of ... magazines, as well as common Gazettes, might be spread through every city, town, and village in the United States. I consider such vehicles of knowledge more happily calculated than any other to preserve the liberty, stimulate the industry, and ameliorate the morals of a free and enlightened people. - George Washington, 1788.
I begin from these principles to answer your questions about the proposed watering down of the shield laws. I also temper my responses by the knowledge that we are currently at war, and in wartime, it is of paramount importance to protect the republic and its citizens.
That said, the pros are to protect America from our mortal enemies, and in theory, it is possible to entertain the limited possibility that relaxing the shield laws would increase our safety. However, it is one thing to acknowledge hypotheticals and another to threaten the machinery of journalism that allows American citizens to have a robust First Amendment, freedom of information, and access to political information that might strengthen the marketplace of ideas, so on balance the watering down of the shield laws is not an attractive idea even in time of war.
As a fine professional journalist friend of mine has noted to me, a free press serves the democratic republic's robust political-social order by providing access to information. Unfortunately, all governments at times try to conceal information, often covering up misdeeds, just plain lousy decisions, embarrassments and corruption. Government officials sometimes even try to make it illegal for people to tell the truth. Without robust shield laws to protect professional journalists from revealing their sources, access to the truth would be hampered to an unacceptable extent.
Currently, the resurgence of the debate about the efficacy of having strong shield laws is due in my view to the changes that journalism as a profession is undergoing due to the digital transition ... that is, the rise of blogs and user-generated material has raised questions about what makes for good journalism in the first place.
The loss of editorial control and the decentralization of production have telegraphed the message that anybody can be a good journalist, and this is simply not true. As I see it, one still needs integrity in reporting; that means not reporting a story unless there is corroboration from at least two independent sources before characterizing a claim as a fact.
The biggest disadvantage of the bill, and this debate has a long history, is that the press can surrender to the government the definition of who is and who is not a legitimate reporter or journalist, and this gets into the whole licensing debate. Ultimately, the First Amendment guarantees freedom of the press, but does not say anything about reports being true or accurate before they are printed.
Unfortunately, it is only after a track record of accurate reporting is established that sources gain credibility ... in short, credibility comes with performance, and during the time of establishing that track record, a lot can go wrong. Thank goodness for the public that it is not in the interest of a legitimate reporter to be found to be wrong, for then that reporter loses credibility and his or her career self-destructs ... the same is true for protected sources. So on balance it is better to have good shield laws in place and not to water them down. It is good for all parties.
Do you see it as of major importance or minor?
LS: It is of critical importance to maintain a robust democracy which in part depends on retaining strong shield laws to protect professional journalists from government threat of punishment for refusing to reveal confidential sources of information that might be antagonistic to the government. It is clear that the role of a free press in America and other democracies is to act as a "Fourth Estate" to monitor and act as a watchdog over elected officials to make sure they are performing their jobs properly. As to whether or not it is of major or minor importance to working journalists, talk to Judith Miller and her colleagues who have gone to jail and ask them. As one close journalist friend has told me, these issues in many ways are litmus tests of how open and free a society truly is.
When is it justified for a publication to use a confidential source for an important story? When isn't it?
LS: Generally, it is justified to use a confidential source when information is unavailable ANY other way and the story is important. I can think of the Watergate scandal as one good example but there are many others.
Do you find it odd that the mainstream media are gaining this power just as they are declining precipitously in readership and finances, are at an all-time low in public believability as measured by the recent Pew research report, and have relatively few reporters left who would avail themselves of such a law?
LS: No. On the contrary, I think the move to water down the shield law is most ironic in light of the fact that it is the Obama administration that is advocating for its diminution. This president taught constitutional law, yet now wants to diminish the shield laws as president. I find that more mind boggling than the fact that it is under review at a time when the digital transition is redefining who is and who is not a professional journalist.
As I said earlier, now that the blogosphere is developing at a rapid rate, and we are moving toward a decentralization of media production, it is no wonder that user-generated material is redefining what journalism is, in terms of content, practice and profession. In reality, however, it is actually a resurgence of the pamphleteering of old, just on screens instead of printed paper. Jefferson and Washington would be at home with it.
Last year, the Los Angeles Times retracted a story, and reporter Chuck Philips publicly apologized, after the investigative website Smoking Gun exposed the fact that the confidential source he had relied on had given him forged documents in the case of the attack on rap star Tupac Shakur. Assuming Smoking Gun isn't around to help, and if the shield bill becomes law, what recourse would an innocent person have if he or she was the victim of a false, harmful story based on false, harmful information from a confidential source?
LS: Actually, this is not an isolated case. Mistakes happen when reporters do not multiple-source a story and check the credibility of the witness and the evidence. As I said earlier, it is unfortunate that it takes time to establish the credibility of a source, through public monitoring of their performance. Along the way, some bad outcomes can occur. But ultimately there is a self-correcting mechanism at work, whereby a source that is found to be untrustworthy eventually loses credibility and the public trust. Repeat offenders quickly lose influence. Therefore, if reporters want to survive, they have to get it right.
Is there anything else you'd like to say about confidential sources and the media shield legislation?
LS: I think it is easy to agree on the basic principle that uncovering governmental malfeasance, business crooks and fraud should be protected all around. At the margins, things get sticky. And the more you attempt to define the edges, the more problematic it gets with respect to licensing of who is a real journalist. The transition to the blogosphere is still a work in progress for professional journalism, but watering down the shield laws is not the way to make things better.
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