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OurBlook interview with Martin Kaiser, president of the American Society of Newspaper Editors
 What are the pros of the media shield bill law moving through Congress?
MK: The main benefit is the creation of a legal protection for journalists that currently does not exist. While this is not a perfect bill, it will provide protection for journalists subpoenaed to testify in a federal proceeding. Recent federal case law indicates that the journalist has no choice but to testify or go to jail (or face significant, often personal, fines). The Free Flow of Information Act will make things, in a word: better.
The Free Flow of Information Act is an evenhanded bill which is long overdue. Five years of intense review, discussion, negotiation, amendment and, then, more amendment, have produced legislation that completely balances the societal interest in having witnesses testify when absolutely necessary to the resolution of a civil or criminal case with the equally important interest in protecting the newsgathering process consistent with the First Amendment.
The legislation is a practical-minded approach to this delicate balancing act. We believe it effectively allows law enforcement to investigate and prosecute cases, especially where the life or liberty of one or many individuals might be at stake. Concerns about national security are unfounded. In fact, we believe that this legislation will ultimately benefit national security interests by ensuring that reporters have access to sources that reveal key dangers or concerns about our country's defenses. That aspect of the law is not just a "pro" with regard to this shield law but it also benefits any form of reporter's privilege. It bolsters newsgathering that leads to the publication of stories that not only affect but change our society for the better.
We especially appreciate the "functional" definition of a "covered person" (the term used to define a journalist who can avail himself or herself of the privilege). Drawing the line as to who is, or isn't, eligible for this privilege might have been the most difficult part of the legislative process. If this definition remains intact and is, hopefully, enacted into law, it represents the simplest definition of "journalism": the act of gathering information with the intent to transform that information for public dissemination. Any attempts to define a "covered person" that relies on the "status" of the person claiming the privilege will ultimately leave deserving journalists without protection.
What are the cons?
MK: There is always a danger in letting a government entity of any type define who is and who is not a "journalist." Our main concern is that the final bill may include a "status"-based definition of "covered person" that will limit its application to only mainstream media or, worse, those persons who receive financial compensation for their work. ASNE is especially proud of its work with the next generation of journalists, yet the college and high school journalists we support would be unprotected if the bill applies only to those journalists who receive financial compensation. The same would be true for freelance book authors or investigative journalists.
That is simply not fair, as these reporters often produce ground-breaking work that is equally deserving of protection as afforded a reporter working for a major newspaper or major television or radio network. In fact, ASNE recently protested the issuance of subpoenas by the States Attorney in Cook County, Illinois, to journalism students at Northwestern University who are part of the Medill Innocence Project, a highly successful program that has helped to exonerate several death row inmates. We believe these subpoenas have no basis in law and, thankfully, Illinois has a state shield law that should protect the students. They would have no protection under federal law.
Of course, there are other ways in which this bill could be stronger. The elements of the qualified privilege contained in the Free Flow of Information Act have been watered down through the legislative process. But each of these changes is the product of significant discussion and the final result will still be a strong reporters' privilege.
Do you see it as of major importance or minor?
MK: ASNE definitely believes this is a major bill. It represents our top legislative priority in recent years. This is because, as we discuss above, there is currently no protection for a reporter promising confidentiality to a source if that reporter is later subpoenaed to testify or produce information in a federal proceeding. While 49 states and the District of Columbia have some type of reporter's privilege, with most coming in the form of a statutory shield law, the reporter clearly has no idea, at the time he or she promises confidentiality to a source, whether the case may eventually end up in a state or federal court. Thus, the default must be the lack of any reporter's privilege until the state/federal disparity is eliminated.
When is it justified for a publication to use a confidential source for an important story? When isn't it?
MK: Individual news organizations apply their own standards on confidential sources. Generally speaking, most are committed to using confidential sources only when the information they provide is essential and it cannot be obtained elsewhere.
During your journalism career, did you ever work on stories in which you were glad you had a state media shield law, or wished you had one? Could you tell us about those?
MK: On some occasions it has been beneficial, though simply having a shield is not a reason to publish confidential information. Most importantly, the information must be essential to the story. And then confidentially should be promised only if there is no other way to get the information.
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?
MK: Not at all. The version of the Free Flow of Information Act that we support is not ... and never was intended to be ... a bill that benefits the "mainstream media." It is a bill that protects legitimate newsgathering in the public interest.
We also do not believe that this law constitutes a license that allows reporters to use confidential sources more frequently. ASNE and its members promote the limited use of confidential sources, understanding that full disclosure and transparency enhance credibility. There are simply some stories which are too important not to be told and which will not be told without the use of confidential sources. This right must be protected.
The law is also beneficial in a financial sense. Perhaps more common than high profile instances in which a reporter faces the 11th hour choice between testifying or going to jail are the almost routine receipt of subpoenas by a media entity as part of a "fishing expedition" by law enforcement officials, prosecutors or private attorneys who seek to use the media to do their research for them. The existence of a shield law should markedly cut down on the time and legal fees incurred in responding to these subpoenas every month.
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?
MK: The often-forgotten aspect of the Free Flow of Information Act is that it has no effect on other existing laws. Another reason that newspapers use confidential sources sparingly is that the credibility of those sources requires even more vetting. In those instances where there exists a legitimate claim of defamation (or other violation of law, such as an invasion of privacy or intentional infliction of emotional distress), the plaintiff remains free to file such a lawsuit. In fact, the choice to use a confidential source to develop such a story would likely be very relevant to the reporter's mindset in a defamation case, which provides another measure of protection against overuses of confidential sources if this law is passed.
Is there anything else you'd like to say about confidential sources and the media shield legislation?
MK: We just want to reiterate that we do not view a federal shield law ... or any shield law, for that matter ... as an excuse to ignore the hard work, transparency and dedication that are the backbone of good journalism. No one wins if confidential sources are overused. But they do serve a valuable purpose when used properly, one which benefits the entire citizenry. And currently, the risk of using a confidential source to produce a vital story is often too high to justify that promise. This legislation, while imperfect, is an improvement and will produce significant public interest benefits.
Martin Kaiser has been editor and senior vice president of the Milwaukee Journal Sentinel since 1997.
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