Stephen J. Farnsworth on the Media Shield BIll

OurBlook interview with Prof. Stephen J. Farnsworth, George Mason University

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

SF: The main concern I have with the absence of a national shield law is that quality of journalism seems likely to suffer without more protection for journalists. As it stands now, government officials can pressure reporters and jail them if they don't get the information the government feels entitled to obtain. (Since information can often be obtained by those with subpoena power without pressuring news organizations, there is usually little to be gained by pressuring reporters.) In these difficult financial times for the media business, only the richest media companies can afford to face the legal challenges in the status quo environment. So, many good stories might not get the green light, or they might get watered down. The public's right to know can suffer in this environment. In the wake of the lengthy Judith Miller imprisonment, I think at least some sources would wonder if the reporter who promises them confidentiality would really go to jail for months to protect a source. So some people might not say what they would have before that high-profile case.

What are the cons?

SF: I believe the pros outweigh the cons by a huge margin. I'm much more worried about the chilling effect of the status quo on public disclosure than the negative things that might result with such a law. Maybe lazy reporters wouldn't try hard enough to get info on the record, but that's not a huge concern of mine. In fact, many states have shield laws and I have yet to see evidence that suggests such laws at the state level have much of a downside. Plus, I don't know many lazy reporters (and I don't know how lazy reporters could keep their jobs in this environment).

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

SF: When there is no other way to get the information you need, confidential sources are appropriate. Such sources should, though, be a last-ditch way to bring important information to the public. Confidential sources shouldn't be a way for partisans to wage political attacks without being named or held accountable for their remarks. I worry that there is too much of that in Washington reporting, and the Scooter Libby/Wilson/Plame case is a fine example of how high government officials were able, at least for a while, to keep their fingerprints off a character attack. I suspect if top media outlets agreed to curb greatly the use of anonymous sources, more than half of what is said without a name attached would still be said with a name attached. We don't need Deep Throat to tell us what the GOP plans to offer as an amendment on the infrastructure bill.

In your recent book "Spinner in Chief" or in your career at the Kansas City Star, did you have occasion to use confidential sources? Could you tell us about a few of those instances?

SF: As a local government reporter with the Kansas City Star and Times, I routinely used confidential sources as part of my information-gathering process. But they weren't always used in the story itself. I always tried to find an on-the-record source or official documents whenever possible to quote in a story that may have started with a tip from a confidential insider, but that was not always possible. The biggest problems for me with on-the-record sources involved getting information about public employee misconduct. Since many of these cases involved potential criminal activity ... stealing, bribery and so on ... by city and county workers, investigators and other city officials were not willing to speak for attribution. So I used unnamed sources in such circumstances. The public had a right to know, but even when I used unnamed sources I tried to provide at least some detail ... "law enforcement sources," "city investigators" or something like that to give people at least a sense of where the information came from. I always worried that the paper's credibility, and nothing helps a paper's credibility more than the use of named sources whenever possible. So for me the use of unnamed sources as attributions in stories was not common, maybe a few times a 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?

SF: This law could have made it possible for more effective investigations of government misconduct in the past. And, if the law passed, it will help future reporter investigations. Better late than never. 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?

SF: First of all, there will always be media watchdogs, be they The Smoking Gun, Media Matters or some other organization. It didn't take long to learn of the problems in 2004 with the 60 Minutes "evidence" relating to Bush's National Guard years ... and the Internet was less developed then. So I don't think reporters are ever going to be above being challenged by people who question their stories. Nor should they be. For people who have been wronged, there are of course many places where one can go to question/attack/respond to a reporter. Media outlets have editors who if they are doing their jobs properly should scrutinize all such claims carefully and make whatever adjustments if any (corrections, retractions, etc.) are justified. Assuming a wronged person gets no satisfaction from within a given media organization, in these ideologically polarized times many bloggers would be very receptive to an innocent victim claiming the media reported a false story. To take things a step further, there are always lawsuits for those who are wronged, at least for traditional media outlets with assets at risk. A media shield law would not prevent legal claims from people who have been wronged. Juries, I suspect, will continue to punish news organizations that they believe go too far with or without this new law.

Steve is an assistant professor of communication at George Mason and the author of "Spinner in Chief: How Presidents Sell Their Policies and Themselves" (Paradigm Press). He is also author or coauthor of three other books. He was a Canada-U.S. Fulbright Research Scholar at McGill University in Montreal during 2006-7. He has a B.A. in history from the University of Missouri, a B.A. in government from Dartmouth and an M.A. and Ph.D. in government from Georgetown. He spent 10 years as a newspaper journalist, mostly with the Kansas City Star & Times.)

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