Commenter Dilan responds to my post on reporters' privilege legislation:
[T]he problem is that the press relies way too much on unnamed sources, that most quotes from such sources have nothing to do with whistleblowing, and that many of these quotes are anonymous solely because it serves the source's personal or political interest, not the public interest, that the source remains anonymous. The Valerie Plame leak is a key example here.
Further, much of what is communicated through unnamed sources is unimportant gossip. The problem with shield laws is that they privilege all of these other types of leaks and make very dastardly political behavior easier to accomplish, in order to protect the few true whistleblowers.
If the press wants a shield law, how about not granting anonymity except in the case of whistleblowing? I see no reason why the government should privilege a grant of anonymity to spread gossip or conduct a political hit.
It's true that too often, journalists grant anonymity to sources who don't merit it. While it should be reserved for instances where the source can't reveal their identity, because the subject matter is so sensitive or because the possibilities for retaliation against the source are so severe, you often see anonymity granted in instances where it's probably not merited. Every day, there are examples of journalists granting anonymity to sources who want to spread gossip or damage another person's reputation without fear of recourse, or in cases where the person really didn't need to be anonymous, he or she was just being cowardly or didn't want to take public responsibility for what he or she said. Discerning when to grant anonymity and how to use it is a skill a journalist must acquire, and like all the other skills of journalism, not everyone acquires it or makes the right decisions in every case. It's a judgment call, like all the other judgment calls we make every day. And there's little evidence that shield laws increase the use of anonymous sources -- reporters who are going to grant it without a sound reason for doing so are probably going to do it anyway.
Judy Miller's case isn't the best example of why we need a shield law, because she made a poor choice on the matter, and let herself be used as a conduit for political misconduct. But that's not a good reason withhold protection for journalists who use anonymous sources. There are a number of cases where anonymity, and assurance that a journalist would not be compelled to testify, have been absolutely imperative to bringing important stories to the public. The obvious ones are the Watergate and the Pentagon Papers cases, but there's also the recent examples of the Wen Ho Lee case and the two San Francisco Chronicle reporters who were threatened with 18-month sentences for protecting the source of a leak about illegal steroid use in Major League Baseball. It's also an important insurance for whistle-blowers, giving them the legal support to back up a reporter's confidence, which makes it more likely that they'll come forward with stories that need to be told.
Citing misuse of anonymous sources as a reason not to protect reporters' privilege is like saying abortion should be illegal because some women might use it as their primary form of birth control, or that we should return to prohibition because some people are alcoholics. It's just not a solid argument, and the benefits of a shield law, for the press, for whistle-blowers, and for the public, far outweigh the possibility of abuse.
--Kate Sheppard
