Matt Duffy on the Media Shield Law and Anonymity

OurBlook interview with Matt Duffy, Georgia State University Ph.D. student

What are the pros of the media shield bill law moving through Congress?

MD: Nobody wants to live in a country where the government can coerce the press into divulging where it gathers its information. The press needs to act as a watchdog to the government and may not be able to do that job properly if reporters are worried about going to jail because they refuse to divulge their sources. The fundamental mission of the shield law is to prevent the government from infringing upon the press' First Amendment right to report the news in an unfettered manner.

What are the cons?

MD: First off, the system really doesn't look that broken. What we saw from the Plame affair, I think, really helped the government and critics see how fruitless and counterproductive badgering journalists for information can be. It represented a swing of the pendulum toward one extreme. In editorials during the outrage over the outing of Plame's identity, the media demanded what they received ... a special prosecutor to investigate leaks from the White House. But, no one seemed pleased with the results.

Since that time, several high-profile leaks (e.g., secret CIA prisons, warrant-less wiretapping) have been divulged to the press, actions that federal prosecutors could have chosen to probe. But, the government hasn't subpoenaed any reporters or taken any legal action at all. Anyone can pick up a New York Times or Washington Post every day and read confidential information. Given this environment, it seems information is flowing pretty well without extra protection for journalists.

Secondly, a federal shield law would create the de facto licensing of journalists. If journalists have special protection under the shield law, then the federal government must decide whether the person in question is a journalist so they know whether they can legally demand to know where information originated. In this fast-changing media environment, I'm not sure I want the federal government determining who counts as a journalist and who doesn't.

Thirdly, I think a federal shield law would give journalists tacit approval to use more unnamed sources in their reports. I think that method of reporting is already overused.

Do you see it as of major importance or minor?

MD: I don't think we'll see irreparable harm if the law passes. But, I see less harm in it failing.

When is it justified for a publication to use a confidential source for an important story? When isn't it?

MD: Great question. Most of the major media outlets have rules regarding how to use unnamed sourcing. Most of them stress that anonymous sources should never be allowed to make allegations, although sometimes they miss this mark. (The NY Times ombudsman took his paper to task for this last year.) Unnamed sources should be used when all other methods to go on the record have been exhausted. Some research shows that many reporters grant anonymity too easily and that sources themselves admit that they'd go on the record if pressed.

You have set up a website on this topic www.anonymoussources.org and are writing a Ph.D. thesis on it as well. What prompted you to begin the site and choose this as your thesis topic? Can you tell us what you've turned up in your research?

MD: The Web site is a work in progress, but I hope to develop it further when I become a full-time professor of journalism this fall. I see it as a way to keep tabs on the industry and help guide them toward better use of anonymity. I think unnamed sourcing hurts the credibility of journalism, not just because of decreased transparency, but also because the unnamed sourcing sometimes turns out to be wrong. Here are some erroneous unnamed sourcing examples from my Web site.

My research is focusing on the use of unnamed sourcing over time ... exploring whether we're using it today more than we used it in the past. Was there a golden age of journalism when we didn't use unnamed sourcing or used it better? I also explore how the journalistic approach toward anonymous sourcing evolved over the years as well as ethical justifications for its use. I plan on releasing the details of my research on my Web site later this year.

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?

MD: The drop in media credibility worries me greatly. I don't think unnamed sourcing is the culprit, but I think it may be one of many factors. The biggest reason for the decline is likely the wider array of media outlets available to us all. It's hard to know what to believe when you can often find different sources that offer separate versions of facts. I'm not sure that the shield law is some type of power grab from a declining industry. Honestly, I think media outlets have a more receptive audience since the Democrats took over, so the time is just right to move this legislation forward.

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, implicating Sean "Diddy" Combs. 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?

MD: That's a great example of bad anonymous sourcing. The Times very quickly issued a retraction and an excruciatingly explicit apology for the erroneous article. Sean "Diddy" Combs would have likely won a libel suit had the paper chosen to defend the story. But, Combs would have had a harder time proving libel if he couldn't compel the LA Times to explain where the information originated ... a jailhouse con man.

The end result would be the protection of a journalist who didn't do his job well enough to warrant protection. Of course, Combs would have likely sued in California state court, and my understanding is the federal shield doesn't apply beyond the federal courts. But defendants in libel cases could conceivably appeal to federal courts to seek the protection of the federal shield.

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